Avoiding Cremation Liability
In response to a request from the research staffs at NBC, ABC and CNN, I surveyed the laws of all 50 states and the District of Columbia in 2009 when the Tri-State situation occurred. The survey indicated that at the time, approximately 24 states enacted comprehensive laws covering cremation practices and procedures. Since then, only about 10 states have passed or amended laws or regulations that can now be considered comprehensive. For licensing, individuals are to comply with whatever requirements are contained in a law. Typically, applicants are required to provide financial information; personal information for the individuals involved; information about the equipment; compliance with any environmental requirements; compliance with zoning requirements; and compliance with personnel training standards. Any person interested in obtaining a license must review the law, determine the requirements and submit the necessary information to governmental authorities.
What are the current issues related to establishing a crematory?
Several cases illustrate the problems that can arise in establishing a new crematory operation. The case of Roselawn Cemetery v. City of Roseville deals with the subject of zoning. The case: a cemetery wanted to build a crematory on its property and needed a conditional-use permit to do so. An application was filed with the city and the city planning commission recommended it be approved. The matter was forwarded to the City Council and a hearing was scheduled. One of the concerns was that the proposed site was approximately 2,500 feet from a water reservoir for the city of St. Paul, Minn. A hearing was held and the City Council rejected the application. The Lower Court affirmed that City Council’s decision and the cemetery appealed the decision. The Appeals Court affirmed the Lower Court on the basis that the cemetery failed to meet its burden of showing that toxic compounds emitted by the proposed crematorium in a residential neighborhood 2,500 feet away from a reservoir supplying drinking water would not affect the general health, welfare and public safety. According to the court, the city did not act unreasonably, arbitrarily or capriciously when it denied the cemetery’s request for a conditional-use permit. The decision’s disturbing part is that non-scientific evidence of the possible effect of mercury emissions was used to justify the City Council’s decision and then again, as a basis for the Lower and Appeals Court determining that the City Council had not acted unreasonably. The case of Lakeside Cemetery v. Conlon concerned a review of zoning board’s decision granting Lakeside’s petition to install a crematory in a chapel building on the cemetery grounds. The adjoining residences objected at the hearing. They stated there would be increased traffic and pollution from the cremations, as well as change in the residential character of the neighborhood and visual impact of the cemetery. Neighbors provided testimony of a local real estate agent, as well as their own testimony, that the value of their property would be reduced as a result of the crematory’s installation. Lakeside filed a motion for summary judgment challenging all the neighbor’s claims and the evidence provided in support of those claims. The increased pollution claim was countered by the project’s approval from the Department of Environmental Protection. The increased traffic was countered by a traffic study and Lakeside challenged the testimony of the real estate agent and neighbors about the effect on value. The court reviewed the evidence and denied the motion on the basis that the neighbors presented enough of the case to have a trail. Both of these cases illustrate that establishing a crematory is no longer an easy project. It is very important to anticipate a dispute, particularly if the proposed crematory is going to be in or near a residential area. Even when an applicant provides a zoning agency with the best information, expert testimonies and reports, there is no assurance that emotional statements will be given more weight than they deserve in a final determination.
What is involved in the license revocation process?
The procedures for revocation of a license in most states are substantially the same. The reason; primarily because they require basic due process procedures to follow the state and federal constitutions. Usually, the laws provide a clear standard for a violation that could cause a revocation such as notice to the licensee; the opportunity to challenge the revocation in administrative proceedings; and the right to challenge the decision in the courts. The procedures for revoking a license are often set out in a summary fashion in the statutory provision with a reference to a state’s administrative procedure law. If your license is subject to possible revocation, it is very important that you review the procedures that will be followed in any proceeding. You should also obtain professional assistance in connection with any revocation of license proceedings.
What are the standard areas of litigation?
While litigation in the cremation area has increased, there are some definite areas where most cases have occurred:
- Identification of bodies before and during cremations.
- Authorizations of cremations.
- Family disputes.
- Indigent or governmental cremations.
- Engaging in prohibited practices.
- Family viewing of the cremation.
What are the problems concerning authorizations?
Most problems can be resolved with a proper authorization form. If you are still using an authorization form that is on one page and only one or two paragraphs long, you are inviting a lawsuit. Also, when there is any question involving the legality of a cremation authorization or the authority of the person signing it, do not perform the cremation. The case of Snell v. Seidler illustrates the type of situation that can arise when cremation authorizations might be questioned. The decedent’s son brought action against the executor of the decedent’s estate and county coroner. This rose out of their failure to notify him of the decedent’s death and the cremation of decedent’s body. The decedent lived alone and was found dead in his home when he failed to meet some neighbors. The coroner determined there was no reason for an autopsy. He asked the executor if there were any next-of-kin and she indicated there were none. The decedent had a long-term relationship with the executor’s aunt and when the aunt died, her niece became the decedent’s executor. The decedent entered into a pre-need cremation contract with a local funeral home. The decedent’s body was turned over to the funeral home and the cremation was performed. Subsequently, it was discovered that the decedent had a son. The son filed a lawsuit against the coroner and the executor for “Theft of a Corpse” requesting $250,000 in compensatory damages and punitive damages of $500,000 from each of them. The coroner answered the complaint by denying the claims and asserting statutory immunity. The executor denied the claims and claimed the son did not have standing. The lower court ruled in favor of the coroner and executor’s motions for summary judgment and the son appealed. The Supreme Court affirmed the lower court’s decision. Surprisingly, the funeral home was not sued in this case.
What problems occur when a family is not allowed to view a cremation?
Aware of the Tri-State situation, consumers are now concerned that remains of their loved ones are actually cremated. Some religions that favor cremation require a family member to actually start the cremation process. Most of the progressive crematories have not established witnessing areas and some actually charge a fee for the service. If a crematory has a witnessing program it should have rules and regulations for the witnessing and have each witness sign a release form. If Cremation Options can be of any further assistance please feel free to contact us at 1-877-989-9090.
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