The Funeral Law Blog

Recovering Damages for Emotional Distress in Abuse of Corpse

After just six minutes of deliberation a jury found a Pennsylvania man guilty of first-degree murder and abuse of a corpse. The man killed is stepdaughter, had sex with her corpse, and filmed it. 

The stepdaughter's husband is suing the man for infliction of severe emotional distress on the husband and children. The husband is attempting to recover the cost of his wife's funeral, compensation for her lost wages, retirement benefits and punitive damages. As well as, the family's mental health counseling.

Generally, courts in Pennsylvania and most jurisdictions apply the impact rule when deciding to award damages for emotional distress.  The “impact rule,” bars recovery for fright, nervous shock or mental or emotional distress unless it was accompanied by a physical injury on the complaining party. Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 191 (1987). 

Pennsylvania Courts allow for an exception to the impact rule if the individual claiming distress was in the zone of danger. The "zone of danger rule" allows for a party to recover damages for emotional distress if the plaintiff was in personal danger and feared impact of harm created by the negligent of internal acts of the defendant. Niederman v. Brodsky, 436 Pa. 401 (1970).

However, the Kazatasky court adopted the tort of intentional infliction of emotional distress by outrageous conduct, which could allow for a family member to recover for distress if the defendant's conduct was sufficiently outrages. Kazatsky, 515 Pa. at 195. In order for the family member to recover for this tort the family member must show the defendant's conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id.

In Kazatasky the parents attempted to recover for intentional infliction of emotional distress by outrageous conduct against a cemetery for failing to care for parent's children gravesites. Id. The court did not decided the case due to insufficient medical records but made it clear that if a plaintiff can pass the "outrageous" test the plantiff can recover for the tort of intentional infliction of emotional distress by outrageous conduct. In the case of the murdered stepdaughter, the husband could recover for emotional distress if a court or jury views killing someone, having sex with their corpse, and filming it outrageous enough to go beyond all possible bounds of decency.   

Correll L. Kennedy

Bad Samaritan or Abuse of a Corpse

In Rockcastle County, Kentucky a couple was charged with abuse of a corpse after the two of them drove around with a corpse for more three hours. The couple and a friend were doing  drugs when the friend overdosed and died. The couple then drove around with the dead body for three or four hours. The couple did not take the overdosed friend to the hospital. Police estimate that the couple drove pass three hospitable on their way home. The body was found in a minivan and witnesses told police that they saw the body being dragged. 

As a general rule individuals are not required, by law,  to help someone that is in distress. The law does not require a person that could help another person to do so. Instead state have created statutes that encourage people to intervene when they witness someone in distress. Most statutes gives tort immunity to individuals who attempt to be good Samaritans. See N.C. Gen. Stat. § 20-166 (giving tort immunity to any person that administers first aid at the scene of a motor vehicle accident); Ohio Rev. Code § 2305.23 (stating that no person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency). The Kentucky intervention law give people who report an overdose criminal immunity for their own drug use. 

KRS § 525.120 provides that  a person is guilty of abuse of a corpse when "he intentionally treats a corpse in a way that would outrage ordinary family sensibilities."  KRS § 525.120 (1). 

While this couple was not required by attempt to save the life of the friend that overdosed it is unclear  if the two of them abused the corpse considering the extremely subjective standard of "outrage family sensibility." In Smith v. Kentucky, 722 S. W. 2d. 892 (1987) the defendant was charged with the crime of abusing a corpse after having sex with the body of a woman that was recently murdered. Smith v. Kentucky, 722 S. W. 2d. 892, 895 (1987). In Smith it was clear that the defendant's action "outrage ordinary family sensibilities" but in the couples case driving from one city to the next with a dead person in the car may or may not rise to the level of abusing the corpse. 

The prosecutors may be using the abuse a corpse statute as a way to force drug users to report the overdoses that they witness. The case law does not support the law applying to drug users who out of fear do not take their friends to the hospital. Instead the law should apply to fact patterns similar to that in Smith.  The vagueness of "outrage ordinary family sensibilities" allows prosecutors to force witnesses to be "good Samaritans." 

Correll Kennedy

Oswald's Coffin Belongs to His Brother, Not Funeral Home, a Judge Rules

 

Texas Judge Donald J. Cosby ruled that the wooden coffin that held the body of one of America’s most notorious killers – Lee Harvey Oswald- belongs to his brother and not to a Fort Worth funeral home. According to the ruling, the Baumgardner Funeral Home, owned by Allen S. Baumgardner Sr., engaged in “wrongful and wanton and malicious conduct.” This malicious conduct? Illegally concealing the existence of Oswald’s coffin from his brother Robert in order to sell the infamous killer’s coffin years later.

Lee Harvey Oswald, infamous for killing President John F. Kennedy on November 22, 1963, was buried in the coffin before it deteriorated so as to require a replacement. When the body was exhumed in 1981, and without Robert Oswald’s knowledge, the original coffin sans Oswald was transported to the Baumgardner Funeral Home, where it was intentionally concealed in the hopes of a large payout for the funeral home owners later on.

The original, however, was put up for sale in 2010 by the Baumgardner Funeral Home in Los Angeles and sold to an undisclosed bidder for $87,468. After Robert Oswald filed suit, the sale was halted and the coffin remained in storage at the Nate D. Sanders auction house.

Judge Cosby not only ordered the original coffin returned to Robert Oswald, but also ordered the funeral home and its owner to pay to Robert the sales price of the coffin, the auction house’s storage fees, and travel expenses as damages.

The brother of Lee Harvey Oswald, probably relieved to put the ordeal to rest, plans to destroy his brother’s original coffin as soon as possible, says his attorney, Gant Grimes. The ultimate concealment of the coffin caused emotional and economic loss to Robert Oswald that a Texas Judge has finally put to rest.

Amelia Lowe

Woman faces up to 12 1/2 years for stuffing her boyfriend's corpse in an old Christmas wreath box

Douglas Bailey, a truck driver from Prescott Wisconsin, was expected in Peoria, Illinois for Thanksgiving dinner last year. When Douglas never arrived, his family contacted police to file a missing person report. Five days later, Douglas’s body was found in a cardboard box dumped along a deserted highway in Kentucky.

Douglas lived with his girlfriend, Rose Kuehni but their relationship was rocky. Rose reported that Douglas abused her physically, sexually, and psychologically throughout their relationship. Rose has begun spending time with another man, Clarence, and Douglas became jealous. On the Sunday before Thanksgiving, the couple was arguing in the bedroom. Rose feared that Douglas was going to rape and kill her, so she shot him in the chest twice. She sat with his body for some time before she wrapped it in a sheet, carried it out to the shed and placed it in an old Christmas wreath box. Thanksgiving morning, before dawn, Rose hoisted the box containing Douglas’s remains into the back of her truck and drove to Illinois to meet Clarence. They transferred the box to Clarence’s truck and Clarence drove south to Kentucky. He stopped on a remote stretch of highway, backed his truck up to the guardrail, and threw the wreath box containing Douglas’s remains down the side of a mountain.

At trial, Rose claimed she had shot Douglas in self-defense. The jury ultimately couldn’t conclude that Rose was guilty of murdering Douglas, but they did still find her guilty of one felony. Under Wisconsin Statute § 940.11, it is a Class F felony to hide a corpse with the “intent to conceal a crime or avoid apprehension, prosecution, or conviction for a crime.” In Wisconsin, a Class F felony is punishable by a fine of up to $25,000 or up to 12 ½ years in prison, or both.

One could say Rose was unlucky in many respects, amongst them, she can count being a resident of Wisconsin. If the murder and abuse of a corpse verdicts had come out the same way, but Rose had been charged under the laws of one of the other states Douglas’s remains traveled through, the maximum sentence she might receive would be as little as 1 year. If Rose had been charged under Kentucky law - the state where the Douglas’s remains were dumped - she would have faced only a Class A misdemeanor charge for abuse of a corpse, punishable with a fine up to $500 and imprisonment up to 1 year. Alternatively, if Rose had been charged under Illinois law - the state where Douglas’s remains were transferred to Clarence’s truck - Rose would have faced a Class 4 felony, punishable by not less than 1 year and not more than 3 years.

Elizabeth DeFrance

Oops, a Corpse! A Tale of Death, Garages, and the Law

On September 9, 2015, eleven days after the death of Reverend Anton Godfrey, those tasked with cleaning out his garage were in for a rude awakening when they uncovered four human bodies "in various states of decomposition," along with a box of cremated human remains and a (still yet-to-be-identified) bag of organs.  The family of one of the deceased, Brigitte Godfrey, is now suing Living Waters, the funeral home they paid $1,800 to cremate and "take care of" their loved one's body, on eight counts of negligence.  At least one of the other recovered bodies had also been previously released to Living Waters.

Per the Illinois Department of Financial Regulation, the reverend had been fined and served on multiple prior occasions to "cease and desist his in-home mortuary practices," and for running an "unlicensed practice of funeral directing and embalming."  By all accounts, however, Living Waters funeral home was in full compliance with the necessary requirements and regulations.  So how did we get here?

Presumably, the bodies released to Living Waters were entrusted to the reverend.  The Illinois Funeral Directors and Embalmers Licensing Code requires all licensed persons be "employed by or contracted with a fixed place of practice or establishment devoted to the care and preparation for burial or for the transportation of deceased human bodies."  Unlicensed persons may help in the transportation of remains "to assist in the removal," but only under "immediate, direct supervision of a licensee…"

To protect public interest and concern in the preparation, care, and final disposition of the deceased, Illinois law is particularly detailed when it comes to the practice of funeral directing.  Illinois law provides many avenues under which criminal action may be pursued against an individual or individuals who desecrate a grave or improperly disinter or abuse a corpse, but here, the individual in question is dead and the action is being pursued against the funeral home under a civil action for the tort of negligence.  The Illinois board of examiners in has in the past justly suspended the licenses of the funeral directors responsible for the employee, a decision upheld by the court in Biggs v. Dep't of Registration & Educ., 388 N.E.2d 1099 (App. Ct. 1979).  This sets the stage for a successful negligence action against Living Waters.

In other words…if you ask me, Living Waters's chances of prevailing are dead on arrival.

Jilliann Sexton

Discovery of Decomposing Bodies in FL Funeral Home Leads to Arrests

Callaway, Florida. Two funeral directors were arrested this summer after Bay County Sheriffs discovered sixteen corpses in various stages of decomposition throughout Brock’s Home Town Funeral Home.   At 5 PM on August 18, officers from the BCSO entered the funeral home and immediately noticed an abundance of flies buzzing throughout the funeral home. They soon realized that six bodies were being kept in the parlor of the funeral home without any refrigeration at all, causing the bodies to decay. There were an additional ten corpses being kept in the funeral home’s “cooler” at a temperature of sixty-two degrees. State law, however, requires that corpses be stored at temperatures not warmer than forty degrees. The funeral home had promised the families of the deceased either cremation or embalming services. However, “‘none of the bodies had been embalmed,’ officers wrote. ‘Those remains whose families requested cremation had not been cremated.’”

Following this grisly discovery, Gregory Dunphy, the funeral home’s director, and Felicia Boesch, the daughter of the home’s owner, were charged with 16 counts of unlawful storage of human remains.  Yet bringing charges against Dunphy and Boesch did not even begin to address the issues that now faced the families of the deceased.

Following the arrest of Dunphy and Boesch, responsibility for the bodies being held at Brock’s Home Town Funeral Home fell to local authorities.  Specifically, the 14th Judicial Circuit’s Medical Examiner’s Office was tasked with the arduous undertaking of “going through the paperwork for each of the deceased to see what the families wanted for their loved ones and honor those requests.” To make matters worse, many, if not all, of these families had to pay cremation or embalming fees a second time. According to local officials, “if another funeral home doesn’t step up to offer assistance, the families of the 16 deceased likely would have to pay out of pocket and then pursue relief through the civil courts.” Given the fact that Brock’s was “primarily a low-income funeral home,” these families were likely put under tremendous financial stress by this horrible turn of events.

In short, the Brock’s Home Town Funeral Home fiasco was nothing short of a nightmare for those involved and illustrates the importance of regulation of the funeral home industry so as to avoid similar catastrophes in the future.

George Kennedy

When Funeral Homes Don’t Do Their Job, Who Is Left To Pick Up The Pieces?

“We don't refrigerate bodies that are being cremated.”

This explanation as to why police found two decomposing corpses hidden under trash bags in an unlicensed West Philadelphia funeral home seems unconvincing, to say the least. Blair Hawkins, the owner of Hawkins Funeral Service, now faces probation on three counts of abusing a corpse: two counts for this infraction, and one for storing an embalmed body in a coffin in an unventilated room. Additionally, he was fined $100,000 by the Pennsylvania State Board of Funeral Directors, and (unsurprisingly) had his funeral director’s license revoked. Just how, one wonders, could Hawkins’ excuse be a valid one?

Simply put: it’s not. Under Pennsylvania state law, bodies must be refrigerated or embalmed within 24 hours of receiving them. The families of both bodies had been told cremation had already taken place—that is, until Hawkins called the brother of Harvey Vaughan, who was supposed to have been cremated two weeks earlier, and told him that more paperwork needed to be signed before the cremation could take place. After scraping together $2,300 to pay Hawkins for the alleged cremation, Vaughan’s family cannot afford to pay for a second cremation. His body was being stored at the local morgue until arrangements could be made.

Such “immorality,” as the State Board described Hawkins’ actions, illustrates how the funeral industry owes a moral duty not just to the bodies themselves, but to those who loved the body when it was alive. The status of a dead body as “human remains” provides more legal protection than that of property (you can’t be charged with “abuse of an armchair,” for example), yet less protection than that of a living being (despite being left to decompose and covered with garbage, there can be no charge of physical abuse here). The families of the bodies entrusted to Hawkins’ care are the real victims in this situation. They could seek relief through the civil judicial system for intentional infliction of emotional distress, a tort which Pennsylvania courts have recognized as a valid claim when a loved one’s body is intentionally or recklessly mistreated (see, for example, Moffatt v. Baird Funeral Home Inc.). However, this tort often falls short from providing families with the relief many believe is suitable for the pain and suffering caused by going through the grieving process twice.

This case, along with other gruesome tales of unlicensed funeral homes, demonstrates the ambivalent legal position that the funeral industry is in. As businesses, running a smooth operation is beneficial for the well-being of the company. As a service, however, running a smooth operation is vital for the community. The industry is intensely regulated in almost every state; however, the limited remedies available to those who have been victims of Hawkins, and the arguably light sentence that he received, illustrates the uncertain approach that the law has towards the industry when that regulation fails.

Charley Connor

What Treatment of a Corpse will "Outrage Ordinary Family Sensibilities"?

On October 1, 2014, Goldia Massey of Cynthiana, Kentucky was reported missing by her son.  She was later determined to have died “on or about” September 21, 2014.  Upon her death, her body was sawed to pieces and dumped into the Kentucky River.  In October 2014, Massey’s arm was found along the river in Henry County and her torso was found that December along the river in Jessamine County.

In August 2016, the jury took less than three hours to find Paris Charles, a 60 year old handyman and former boyfriend of Massey, guilty of her murder and abuse of her corpse.  While sentencing will take place later this week, the jury recommended a 35-year sentence for murder and a $500 fine for abuse of a corpse.

Kentucky Statute §525.120 dictates that a person commits the crime of abuse of corpse when “he intentionally treats a corpse in a way that would outrage ordinary family sensibilities.”  It is a Class A misdemeanor unless the abuse involves sexual intercourse or “deliberate failure to prepare, bury, or cremate a corpse” after entering into a contract to do so.  In these cases, the abuse will be categorized as a Class D felony.

The case of Golida Massey clearly does not fall into the felony provision of the statute; there is no evidence of sexual activity with her corpse and the abuse did not happen as a result of a breach of contract.  Charles was convicted under the misdemeanor provision of the statute, which prohibits any treatment “that would outrage ordinary family sensibilities.”  What is an ordinary family sensibility?

While most will likely agree that sawing a corpse to pieces would “outrage ordinary family sensibilities,” this provision is extremely ambiguous.  America is composed of many religions and types of families.  Is there really an “ordinary family” that can be used to judge inappropriate treatment of human remains?

Had Massey's body been sawed up in another state, the criminal statute might have more definitively prohibited the behavior.  For example, some states prohibit “mutilation” of a corpse.  Illinois goes further and specifically defines the crime of dismembering a corpse as when an individual “knowingly dismembers, severs, separates, dissects, or mutilates any body part of a deceased’s body.”

Kentucky, however, is among many states that define abuse of a corpse only in terms of what would offend an ordinary family’s sensibilities.  While most jurors will likely consider sawing up your girlfriend’s body to offend ordinary sensibilities, what will happen when a defendant commits a slightly more subtle injustice to his girlfriend’s corpse?  Will ambiguous state statutes let him slip away unpunished?  What will happen when grieving loved ones perform a unique ritual as part of a religious tradition?  Will ambiguous state statutes criminalize their grief?  What really is an "ordinary family"?

Lauren Stovall

Internet Sales of Human Remains Persist Despite Questionable Legality

Conor Gearin recently wrote an article for The New Scientist entitled "Hundreds of mystery human skulls sold on eBay for up to $5500."

The article begins:

A morbid market. Staffers at the Louisiana Department of Justice in Baton Rouge tracked the sale of human skulls on eBay for seven months. During that period, 237 people listed 454 skulls for sale, with opening bids ranging from one cent to $5500.

Until last week, eBay’s official policy as stated on its website was that it doesn’t allow the sale of human remains, with two exceptions – “items containing human scalp hair, and skulls and skeletons intended for medical use”. However, sellers could say that skulls were for medical use without proving it, and still sell them as curiosities, says Tanya Marsh at Wake Forest University in Winston Salem, North Carolina.

Following the study’s publication, eBay recently changed its policy to ban sales of all human body parts except hair.

On average, the opening bids were about $650. Skulls described as pathological – coming from someone with a disease – went for similar prices as other skulls. Specimens cleaned and articulated for teaching started at about $50 more, though.

You can read the rest of the article here.

I checked eBay today and the policy appears to be working - no listings that appear to be for real human skeletons or skulls appear.  However, it is still pretty easy to purchase human remains online.

Skulls Unlimited currently lists 115 products in the category "Real Human Skulls & Skeletons" including 23 human skulls with most prices in the $1,250 - $1,850 range.  A full human skeleton is offered for $5,200.  Skulls Unlimited won't sell human remains to just anybody:

In order to honor the donors who have graciously made this material available to the educational community, Skulls Unlimited will only place these specimens with medical or educational professionals such as college professors, teachers, doctors, nurses, dentists, physical therapists, occupational therapists, respiratory therapists, dental assistants, optometrists, x-ray technicians, ultrasound technicians, crime scene investigators, and lawyers.

The Bone Room currently offers approximately 50 human skulls, including 15 skulls from fetuses, infants, and children under the age of 7.  You can buy a 4 year old child's skull for $3,500, FYI.  But don't worry, The Bone Room says that this is all perfectly legal:

Human Bone Laws & Information - In short, it is perfectly legal to posses and sell human bones in the United States. There are a few exceptions to this: a few states have banned import and export, and of course, all archaeological resources protected by the Native American Graves Protection and Repatriation Act.

Readers are urged to visit the site's "Bone FAQ" page, which offers additional information:

In short, there is no law at the U.S. Federal level prohibiting you from having a human bone in your possession. The fact that some people believe there is or believe there should be such a law is irrelevant.

This is not to say that such laws do not exist in other countries, or at the local level. For example, three US states, New York, Georgia & Tennessee, all have independent State Laws prohibiting the import or export of human remains across their state lines. While we work hard to remain current, laws are passed worldwide faster that the human mind can track or comprehend, so you must be responsible to know your local laws before ordering.

We work within the framework of U.S. Federal, California State, and International Treaty Law. Within these jurisdictions, there are no prohibitions on the sale or possession of human bones.

The Bone Room's FAQ is somewhat correct—there are few laws in the United States that explicitly prohibit the possession and sale of human bones. But that is because the law doesn't distinguish between intact human remains and human bones.  The bigger problem that the sellers of human bones have (particularly since both Skulls Unlimited and The Bone Room have pages on their sites offering to purchase human bones) is that there is no way in the United States to legally transform intact human remains into human bones. 

When a person dies in the United States, the state must be informed and a death certificate issued.  Prior to final disposition of the remains, another certificate, usually called a burial and transit permit, must also be issued by the state. There are particular rules regarding the treatment and disposition of those remains.  For example, in no state is it permissible to transform intact human remains into a skeleton.  The Bone Room specifically references California law in its FAQ, presumably because it is located in California.  It may be interested in this California law:

“Except as authorized pursuant to [§§ 7054.6, 7116, 7117, and 103060], every person who deposits or disposes of any human remains in any place, except in a cemetery, is guilty of a misdemeanor.” Cal. Health & Safety Code § 7054.

I'm not their lawyer, but that statute doesn't seem consistent with the idea that it is "perfectly legal" for them to possess human remains in California. 

Tanya Marsh

 

The Vultures are Coming—Air Burials in Indiana?

In Lafayette, Indiana, Illa Solomon lived with the corpse of her 88-year-old husband, Gerald “Scooter” Gavan for nine months without reporting the death. Her aim was to fulfill her husband’s request for an air burial. This supposedly coveted air burial is an ancient practice of Tibetan Buddhists where birds slowly devour a corpse.

In February 2013, Solomon purchased the house next door to her house. Though Solomon claimed Gavan helped her renovate the house through the winter months, the coroner found Gavan was actually dead since summer. Solomon initially claimed her husband had been dead only five days before officers found the severely decomposed corpse, but eventually Gavan confessed the body had been decaying for nine months. She even admitted the smell of the decomposing body was so bad she could no longer live in her home with it. Hence, she bought the neighboring house and would sleep next door after returning each night to open the side door in hopes that birds would fly in and feed on her husband. When explaining her decision, Solomon stated, “That's kind of a little thing, isn't it? Keep a secret and open the door?" She said, "All he wanted me to do was just keep his secret and open the door.”

Solomon was, at the time of her husband’s death, unaware Texas State University’s Forensic Anthropology Center studies scavenger birds, like vultures, as they feed on donated human bodies. She now says it is her goal to get her late husband’s remains to the Texas body farm. She explained, “I do hope that if somebody else gets put in the same situation I got put into, they'll know about the body farm and the body ranch, so they'll know where to go.”

Of course, in failing to report her husband’s death to authorities, Solomon violated state law. In Indiana, it is a misdemeanor to fail to report a dead body and a misdemeanor for the unlawful disposal of a dead body. Solomon’s defense was, “I know I did commit failure to report and that is a crime. I don't know if they'll charge me with failure to report or not.” In the end, Solomon’s lack of knowledge about the law did not save her. She pleaded guilty to two misdemeanor charges of failing to report a dead body and unlawful disposal.

If Solomon was truly unaware of her legal obligation to report her husband’s death, it seems unfortunate she was punished for her lack of awareness. Additionally, her explanation that she was only doing something small to carry out the wishes of her husband suggests the law may be too restrictive. Why shouldn’t Gavan be able to devote his body to an air burial, especially if his wife was willing to give up their entire home during the process? It appears the only burden the air burial created was the burden on Solomon.

Interestingly, upon investigation into potential foul play on Solomon’s part, she produced her husband’s last will and testament. The document stated that Gavan, an 88-year-old WWII veteran, wanted a “traditional burial.” Solomon claimed this document and the phrase “traditional burial” tipped her off that her late husband wanted the air burial. She specifically alleged the documents show that her husband wanted to be eaten by birds in India. Solomon’s dogged interpretation of Gavan’s wishes seems to have something missing. Was she mentally addled by her husband’s passing? Was she engaged in foul play? Or did Solomon really just misinterpret her husband’s will the way he wanted? So perhaps Indiana’s law for reporting human passing is the best way to avoid such questions.

Katie Ott