John M. Gately and Patty Sue Gately v. Hamilton

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4458-13T2

JOHN M. GATELY and

PATTY SUE GATELY (h/w),

APPROVED FOR PUBLICATION

Plaintiffs-Appellants,

October 22, 2015

v.

APPELLATE DIVISION

HAMILTON MEMORIAL HOME, INC.,

d/b/a BRENNA-CELLINI FUNERAL

HOME, and MARIA E. BRENNA,

Defendants-Respondents.

__________________________________

Argued September 21, 2015 - Decided October 22, 2015

Before Judges Sabatino, Accurso, and

O'Connor.

On appeal from the Superior Court of New

Jersey, Law Division, Mercer County, Docket

No. L-2047-11.

Gary F. Piserchia argued the cause for

appellants (Parker McCay, P.A., attorneys;

Stacy L. Moore, Jr., of counsel; Mr.

Piserchia, on the brief).

Lionel J. Frank argued the cause for

respondent Hamilton Memorial Home, Inc., and

for respondent Maria E. Brenna only as to

Counts One and Three of the Amended

Complaint (Szaferman, Lakind, Blumstein &

Blader, P.C., attorneys; Mr. Frank, Jeffrey

P. Blumstein, and Melissa A. Chimbangu, on

the brief).

William E. Paulus argued the cause for

respondent Maria A. Brenna as to Counts Two

and Four of the Amended Complaint (Law

Office of Gerard M. Green, attorneys; Mr.

Paulus, on the brief).

The opinion of the court was delivered by,

SABATINO, P.J.A.D.

This appeal arises out of a no-cause jury verdict rejecting

a father's claims that a funeral home wrongfully released the

remains of his adult son for cremation without the father's

authorization. The father contends that he told an individual

employed by the home (known in the trade as an "intern") that he

did not want his son to be cremated. He claims that the intern

and funeral home ignored his protestations and instead

improperly acceded to the contrary direction of the decedent's

mother. The father and his current wife, as co-plaintiffs,

argue that the trial court erred by instructing the jury that

defendants' conduct is subject to protection under qualified

statutory immunities, and that the verdict was unjust and

against the weight of the evidence.

The main and novel legal issue presented to us is whether

the qualified immunity from civil liability granted to funeral

directors under N.J.S.A. 45:7-95 and N.J.S.A. 45:27-22(d)

extends to interns who are employed by funeral homes pursuant to

regulations issued by the State Board of Mortuary Science. The

immunity precludes liability unless the defendant had

2 A-4458-13T2

"reasonable notice" of untrue representations or a lack of

authorization by the surviving next of kin.

We conclude that the statutory immunity does extend to such

interns, and that the trial judge consequently did not err in

charging the elements of the immunity to the jury. We further

conclude that the verdict was not against the weight of the

evidence, and that there are no other grounds for ordering a new

trial.

I.

On October 16, 2009, John R. Gately, son of Kathleen

Cousminer and plaintiff John M. Gately, was killed in an

automobile accident.1 Cousminer and Gately divorced in 1988 or

1989 when their son was about five years old. Both parents have

since remarried.

Although Cousminer had custody of the son while he was a

minor, Gately contends he had a close relationship with the

young man. At the time of his death, the son was living with

Cousminer in New Jersey. Plaintiffs were residing in Florida.

1

To avoid confusion, we refer to John M. Gately as "Gately," his

current wife Patty Sue Gately as "Patty" and the deceased as the

"son." In doing so, we intend no disrespect. Gately and Patty

collectively will be referred to as "plaintiffs."

3 A-4458-13T2

Following the son's death, Cousminer's husband called

Brenna-Cellini Funeral Home2 and set up an appointment for

Monday, October 19, 2009 to make the funeral arrangements.

Cousminer and her husband met with defendant Maria E. Brenna,

who was then a licensed intern employed by the home, to make the

arrangements. Cousminer stated that she wanted the son

cremated. She signed a Cremation Authorization and Disposition

Order (the "Authorization Form") supplied to her by Brenna.

Among other things, the Authorization Form certified that the

signer "is of mature age and alone [has] the right [to] give

this authorization and direction for said cremation, and that no

other person has such right[.]"

The home's funeral director, Joe D'Errico,3 was in an

adjoining room while those arrangements were being made.

According to Brenna, D'Errico was not required to be in the room

with the customer but he had to be available to review and sign

the documents. Brenna testified that D'Errico escorted

Cousminer into the funeral home, and that he was present when

she met with them.

2

This is the business name for defendant Hamilton Memorial Home,

Inc. The "Brenna" in the funeral home's name is the surname of

the individual co-defendant.

3

According to Brenna's testimony, as of the time of trial, she

and D'Errico were "partners" in the funeral home.

4 A-4458-13T2

After the arrangements were made, Cousminer had a

conversation with her ex-husband Gately, who told her he did not

want their son to be cremated. According to her testimony,

Cousminer did not tell Brenna that Gately objected to the

cremation.

Gately testified that he spoke to Brenna by telephone on

Monday, October 19, and told Brenna he did not want the son to

be cremated. Gately claimed that Brenna told him he had no

choice in the matter and that she hung up on him. Corroborating

her husband's account, Patty testified that she overheard

Gately's conversation with Brenna and that he told Brenna he did

not want the son cremated.

A viewing was held at the funeral home on Wednesday,

October 21. Gately testified that he confronted Brenna at the

viewing and again told her he did not want the son cremated.

She allegedly responded that he had no say in the matter. Patty

similarly testified that she saw Gately confront Brenna, and

heard him repeat that he did not want the son cremated. In

addition, Gately's cousin testified that he was with Gately when

he confronted Brenna and heard Gately object to the cremation.

5 A-4458-13T2

The funeral was held on Thursday, October 22.4 Contrary to

plaintiff's testimony, Cousminer testified that Gately did not

express an objection to the cremation to her, either at the

viewing or at the funeral. The son was cremated after his

funeral on that same day.

In her own testimony, Brenna insisted that neither

plaintiffs nor Cousminer ever told her that Gately did not want

the son cremated. Brenna acknowledged that she spoke to

plaintiffs by telephone on October 19, but stated the discussion

was limited to obtaining information for the obituary. She

testified that there was no discussion whatsoever about the son

being cremated.

Brenna denied discussing the cremation with Gately at the

viewing. She testified that her only conversation with

plaintiffs at the viewing was to express her condolences.

Moreover, according to Brenna, her only conversation with

plaintiffs on the day of the funeral was to comply with their

request for a lock of the son's hair and to provide a brochure

of mementos.

Brenna testified that she "would not have moved forward

with [the] cremation had there been any indication that there

4

Gately testified that on the day of the funeral he again told

Cousminer he did not want their son cremated and that she would

not reconsider.

6 A-4458-13T2

was an objection." As Brenna explained it, she would have

advised the parents that they needed to reach an agreement if

such an objection had been raised; otherwise, the body would be

buried. Brenna acknowledged that she did not seek authorization

from Gately for the cremation. She did point out that, "from a

business point of view," she would have been "more than happy"

to forego the cremation.

At her deposition Brenna did not recall telling Cousminer

that both parents had to be in agreement regarding cremation.

However, at trial Brenna testified that she did tell Cousminer

that.

Cousminer testified that Brenna did not ask her if Gately

had agreed to cremation. Cousminer did not recall discussing

with Brenna whether she had authority to speak for Gately.

Cousminer did acknowledge that Brenna did not influence her

decision to have the son cremated.

In August 2011, plaintiffs filed a complaint in the Law

Division against the funeral home and Brenna, alleging

intentional infliction of emotional distress (count one),

negligent infliction of emotional distress (count two), a claim

of punitive damages (count three), and a loss of consortium

(count four). Defendants denied liability. Among other things,

defendants invoked the immunity provisions set forth in the New

7 A-4458-13T2

Jersey Cemetery Act, N.J.S.A. 45:27-1 to -41, and the Mortuary

Science Act ("MSA"), N.J.S.A. 45:7-32 to -95.

Under the Cemetery Act,

[a] person who signs an authorization for

the funeral and disposition of human remains

warrants the truth of the facts stated, the

identity of the person whose remains are

disposed and the authority to order the

disposition. The person shall be liable for

damages caused by a false statement or

breach of warranty. A cemetery or funeral

director shall not be liable for disposition

in accordance with the authorization unless

it had reasonable notice that the

representations were untrue or that the

person lacked the right to control the

disposition.

[N.J.S.A. 45:27-22(d) (emphasis added).]

Likewise, under the Mortuary Science Act,

[a] funeral director may permit the funeral,

disinterment or disposition of human remains

on the written authorization of a person who

claims to be, and is believed to be, a

person who has the right to control the

funeral, disinterment or disposition as

provided by sections 22 and 23 of P.L. 2003,

c. 261 (C.45:27-22 and 45:27-23). A

cemetery or funeral director shall not be

liable for the funeral, disinterment or

disposition pursuant to this authorization

unless it had reasonable notice that the

person did not have the right to control the

funeral, disinterment or disposition. . . .

A person who signs an authorization for the

funeral, disinterment or disposition of

human remains warrants the truth of the

facts stated, the identity of the person

whose remains are disposed, and the

authority to order the funeral, disinterment

8 A-4458-13T2

or disposition. A cemetery or funeral

director shall not be liable for the

funeral, disinterment or disposition in

accordance with the authorization unless it

had reasonable notice that the

representations were untrue or that the

person lacked the right to control the

funeral, disinterment or disposition.

[N.J.S.A. 45:7-95 (emphasis added).]

Defendants moved for summary judgment prior to trial

contending that these statutes immunized their conduct in this

case. Plaintiffs, in opposition, argued that the immunities

were inapplicable. The trial court denied those motions 5 and the

case proceeded to trial in March 2014.

The critical factual issue at trial was whether or not

Gately had told Brenna, either before or at the funeral, that he

objected to his son's cremation. That factual dispute was a

focal point of counsel's opening statement and summations.

During the course of the jury charge, the trial judge

instructed the jurors on the traditional elements of negligence,

intentional and negligent infliction of emotional distress,

proximate causation, and damages. With the acquiescence of all

counsel, the judge also charged the jury regarding the immunity

5

The judge who heard the motions was not the same one who later

presided over the trial.

9 A-4458-13T2

statutes. In that regard, the judge provided the following

guidance:

In this case, the plaintiff6 has separate

claims against the defendants. One is for

intentional infliction of emotional

distress. The second one is for negligent

infliction of emotional distress. The basis

for each claim is that the defendant

violated a law that governs the funeral and

disposition of decedents.

In summary, that law provides as follows.

Both surviving parents have the right to

control the funeral and disposition of the

human remains under these circumstances.

The funeral director may permit the funeral

of [sic] disposition of human remains and

[sic] the written authorization of a person

who claims to be and is believed to be a

person who has the right to control the

funeral or the disposition. The funeral

director shall not be liable for the funeral

or disposition pursuant to this

authorization unless it had reasonable

notice that the representations were untrue

or that the person lacked the right to

control the funeral or disposition.

In this case, you will be asked to decide

whether the plaintiff has established by a

preponderance of the evidence whether the

defendant negligently and/or recklessly or

intentionally violated this law.

[(Emphasis added).]

6

Although the transcript indicates that the judge used the

singular term "plaintiff," it is obvious from the context that

he meant to include the claims of both plaintiffs in his

instruction. Likewise, his reference in this passage to the

"defendant" in the singular appears to be either a transcription

error or a slip of the tongue.

10 A-4458-13T2

The jury returned a unanimous verdict in favor of

defendants as to all counts in the complaint. Specifically, the

jury answered "no" to the question on the verdict form, "Has the

plaintiff proven by a preponderance of the evidence that the

defendant7 negligently violated the law regarding the funeral or

disposition of [the son]?" Similarly, all the jurors responded

"no" to the question, "Has the plaintiff proven by a

preponderance of the evidence that the defendant intentionally

or recklessly violated the law regarding the funeral or

disposition of [the son]?"

Following the adverse verdict, plaintiffs moved for a new

trial. The trial court denied that application and this appeal

ensued.

II.

The primary legal issue that plaintiffs raise on appeal8 is

whether the qualified immunity provisions set forth in N.J.S.A.

7

Although the transcript uses the term "defendant" in the

singular, it is clear from the context that the question was

intended to cover both defendants.

8

We reject defendants' contention that plaintiffs did not

adequately raise this legal issue in the trial court. In any

event, the novel questions presented here concerning the actual

scope of the statutory immunity provisions sufficiently

implicate the public interest to warrant our consideration of

those matters. See Nieder v. Royal Indemn. Ins. Co., 62 N.J.

229, 234 (1973).

11 A-4458-13T2

45:27-22(d) and N.J.S.A. 45:7-95 cover persons such as Brenna

employed as what are known in the funeral business as "interns."

The trial court's jury instructions presumed that such interns

are included within the ambit of the statutory immunities. For

the following reasons, we agree with that premise, and reject

plaintiffs' more narrow construction of the statutes.

A.

The present regulation of funeral homes in New Jersey is

mainly governed by statutory provisions within the MSA, N.J.S.A.

45:7-32 to -95, and associated regulations administered by the

State Board of Mortuary Science ("the Mortuary Board"), N.J.A.C.

13:36-1.1 to -11.19. In addition, the funeral profession is

also affected by portions of the Cemetery Act, N.J.S.A. 45:27-1

to -41, which is enforced by the State Cemetery Board (the

"Cemetery Board"), N.J.S.A. 45:27-3. Both the Mortuary Board

and the Cemetery Board are within the Division of Consumer

Affairs of the Department of Law and Public Safety. See

N.J.S.A. 45:7-35 (Mortuary Board); N.J.S.A. 45:27-3 (Cemetery

Board).

In enacting the MSA, the Legislature recognized that "the

practice of mortuary science and the practice of embalming and

funeral directing are . . . occupations charged with a high

degree of public interest and subject to strict regulation and

12 A-4458-13T2

control." N.J.S.A. 45:7-33. The MSA vests the Mortuary Board

with the authority to adopt rules and regulations to enforce the

statute's provisions. N.J.S.A. 45:7-35, -37. The Board is

"specifically empowered to adopt rules and regulations

concerning . . . trainees, apprentices and preceptors[.]"

N.J.S.A. 45:7-38.

To become a licensed funeral director in New Jersey, a

person must, among other requirements, "complete[] 2 years of

practical training and experience as a registered trainee[.]"

N.J.S.A. 45:7-49(a)(2). The MSA prohibits a person from

"engag[ing] in the practice of mortuary science, embalming or

funeral directing" unless licensed by the Board but makes an

exception for a "registered trainee working under the direct

supervision of a practitioner of mortuary science." N.J.S.A.

45:7-47.

The term "registered trainee" is defined in the MSA as

follows:

(i) "Registered trainee" means a person who

is duly registered with the board and who is

engaged in the State of New Jersey in

learning to practice as a practitioner of

mortuary science under the personal

instruction and supervision of a person duly

licensed as a practitioner of mortuary

science and who has an annual case volume as

hereinafter provided in [N.J.S.A. 45:7-45].

[N.J.S.A. 45:7-34(i).]

13 A-4458-13T2

In recent years, the term "intern" has been used in the Mortuary

Board's pertinent regulations instead of the term "registered

trainee." See 16 N.J.R. 505(a), 508-09 (Mar. 19, 1984) (rule

proposal); 16 N.J.R. 2143(b), 2145-46 (Aug. 6, 1984) (rule

adoption). As the term is now defined, "intern" is "a person

registered with the Board who is engaged in learning to practice

as a practitioner of mortuary science under the supervision of a

Board licensee, and includes registered trainees." N.J.A.C.

13:36-1.2.

The Mortuary Board has promulgated detailed regulations

governing the training of interns and the practice of mortuary

science and funeral directing by interns. N.J.A.C. 13:36-2.1 to

-2.15. "Preceptors" in the trade must ensure that interns are

proficient in "[m]aking funeral arrangements with families,

which includes attending funeral arrangement conferences,

selling of merchandise, taking statistical information from

families, filing death certificates, preparing obituary notices

and placing such notices with newspapers, and attending

viewings[.]" N.J.A.C. 13:36-2.14(a)(2). Further, the

regulations recognize that interns are granted legal authority

to make funeral arrangements. See N.J.S.A. 45:7-47 (exempting

"registered trainee[s] working under the direct supervision of a

practitioner of mortuary science" from the MSA's general

14 A-4458-13T2

licensure requirements). In that regard, N.J.A.C. 13:36-8.9

mandates that "[n]o unlicensed person shall be permitted to make

funeral arrangements on behalf of any licensed practitioner of

mortuary science, except that interns may make such arrangements

pursuant to N.J.S.A. 45:7-47." (Emphasis added).

The manifest purpose of these provisions concerning

registered trainees (now "interns") is to provide persons who

are entering the mortuary business with an extensive opportunity

to learn their craft under the supervision of a preceptor. The

statutes and allied regulations contemplate that the intern will

carry out a wide range of responsibilities, including having

interactions with customers and family members of the decedents.

N.J.S.A. 45:7-34(f) defines a "funeral director" as "a

qualified person who practices or engages in funeral

directing[.]" "Funeral directing" includes "engaging in or

making . . . funeral arrangements[.]" N.J.S.A. 45:7-34(c).

Both N.J.S.A. 45:7-47 and N.J.A.C. 13:36-8.9 allow interns who

are "working under the direct supervision of a practitioner of

mortuary science" to engage in the practice of funeral

directing, including making funeral arrangements. Thus, by the

plain language of these provisions, interns are encompassed

within the term "funeral director" under the MSA, as they are

15 A-4458-13T2

qualified by statute and the associated regulations to engage in

funeral directing.

B.

Before we address the specific question of whether the

statutory immunities cover interns, we first provide a context

concerning the codified provisions dealing with the disposition

of a decedent's remains.

One of the important functions of persons who work in the

mortuary business is assuring the proper disposition of each

decedent's remains, whether by burial or by cremation. This

time-sensitive function is guided by the previously-expressed

intentions of the decedent or, in the absence of such

instructions, by the direction of the decedent's next of kin.

The Cemetery Act addresses who may control the funeral and

disposition of a decedent's remains. If the decedent has not

left a will appointing a person to control disposition and has

no surviving spouse or adult children, the statute provides that

the right to control the funeral and disposition of the remains

passes to "[t]he surviving parent or parents of the decedent."

N.J.S.A. 45:27-22(a)(3) (emphasis added).

The regulations promulgated by the Cemetery Board and the

Mortuary Board do not specifically address who has the right to

authorize cremation when there are two surviving parents. See

16 A-4458-13T2

N.J.A.C. 13:36-1.1 to -11.19; N.J.A.C. 13:44J-1.1 to -15.3. The

parties have not cited and we have not found any case law

interpreting the "surviving parent or parents" clause of

N.J.S.A. 45:27-22(a)(3). We also have found no other reported

opinion from another state interpreting similar language.9

The question as to whether in the present case Cousminer

had the sole authority to authorize her son's cremation thus

depends on whether the word "or" in the statute is disjunctive

(meaning that either one or both surviving parents can control

disposition), or, alternatively, is conjunctive (meaning to

convey that when there are two surviving parents both share a

joint right to control disposition and must agree on that

disposition).

"Generally courts presume that 'or' is used in a statute

disjunctively unless there is clear legislative intent to the

contrary." Norman J. Singer & J.D. Shambie Singer, Sutherland

Statutory Construction § 21:14 (7th ed. 2009); see, e.g., Cox v.

Sears Roebuck & Co., 138 N.J. 2, 19 (1994) (interpreting the

Legislature's use of the word "or" in the Consumer Fraud Act,

9

The practices in other jurisdictions widely vary. See Ann M.

Murphy, Please Don't Bury Me Down in That Cold Cold Ground: The

Need for Uniform Laws on the Disposition of Human Remains, 15

Elder L.J. 381 (2007) (canvassing the differing statutes and

regulations for funeral home and cemetery operations within

other states).

17 A-4458-13T2

N.J.S.A. 56:8-2, as evidence that the Legislature intended for

the statute's requirement of "any unconscionable commercial

practice, deception, fraud, . . . or the knowing concealment,

suppression, or omission of any material fact" to be a

disjunctive condition); see also Atl. Container, Inc. v. Twp. of

Eagleswood Planning Bd., 321 N.J. Super. 261, 270 n.4 (App. Div.

1999) (observing that the word "or" is ordinarily "considered a

disjunctive particle indicating an alternative") (citation

omitted); State v. Smith, 262 N.J. Super. 487, 506 (App. Div.),

certif. denied, 134 N.J. 476 (1993) (observing that "[p]urely as

a matter of grammar . . . [w]hen items in a list are joined by a

comma or semicolon, with an 'or' preceding the last item, the

items are disjunctive"). We recognize, however, that the word

"or" has at times been "interpreted to mean the conjunctive if

[that meaning] is more consistent with legislative intent." In

re Raymour & Flanigan Furniture, 405 N.J. Super. 367, 384 (App.

Div. 2009) (quoting Wildwood Storage Ctr., Inc. v. Mayor &

Council of Wildwood, 260 N.J. Super. 464, 471 (App. Div. 1992)).

Applying these principles, we conclude that the most

logical construction of the phrase "surviving parent or parents

of the decedent" within N.J.S.A. 45:27-22(a)(3) requires the

provision to be construed in the conjunctive if there is more

than one surviving parent. The term "surviving parent"

18 A-4458-13T2

(expressed in the singular) is encompassed by the phrase

"surviving parents" (expressed in the plural). We do not

presume that the Legislature would choose to use redundant terms

in a statute, but rather generally strive to adopt an

interpretation that gives meaning to every word. See, e.g.,

McCann v. Clerk of Jersey City, 167 N.J. 311, 321 (2001); Finkel

v. Twp. Comm. of Hopewell, 434 N.J. Super. 303, 321 (App. Div.

2013); State v. Malik, 365 N.J. Super. 267, 278 (App. Div.

2003), certif. denied, 180 N.J. 354 (2004).

The hierarchical structure of the statutes themselves sheds

light on the question. In Marino v. Marino, 200 N.J. 315, 332

(2009), the Supreme Court discussed the purpose of the hierarchy

of decision-making dictated by N.J.S.A. 45:27-22(a):

To begin with, when someone dies, the need

for a clear demarcation between who may

decide on burial and the order of preference

to be given to those who might otherwise

have a voice in the matter is paramount.

The corollary need for an efficient

mechanism to avoid, or to end quickly,

disputes among those who might disagree is

of almost equal significance.

The Legislature's amendment to the statute

in 2003 makes particularly clear its

intention to afford little room for dispute

about interment in the first instance.

Although embracing the notion that a

decedent desiring to decide the disposition

of his or her remains is entitled to have

that expression of intent effectuated, the

Legislature limited the means of doing so in

a clear effort to prevent both disputes and

19 A-4458-13T2

delays. By requiring that the directions be

in writing and by requiring that the writing

be in a will . . . the Legislature greatly

reduced the possibility that burial would be

delayed while survivors battled over the

decedent's preferences.

That is not to say that the statute can

never give rise to a dispute, the effect of

which will be to delay the interment of a

decedent's remains. . . . Moreover, in

spite of the Legislature's effort to create

a clear hierarchy to be followed in the

absence of a directive in a will, disputes

might arise if, for example, there is no

surviving spouse and no majority among the

surviving adult children who agree. The

Legislature's rejection of the [Law

Revision] Commission's recommended deletion

of the language relating to court orders

demonstrates its recognition that the court

is empowered to, and may, act to resolve

disputes.

[(Emphasis added).]

The Court further observed that the codified hierarchy among a

decedent's next of kin was an "effort to create . . . a scheme

of priorities so clear and plain that it will rarely lead to a

dispute requiring intervention by the courts[.]" Id. at 333.

A reading of the phrase "the surviving parent or parents"

to allow either surviving parent alone to control the

disposition of the decedent's remains would probably further the

goal of expeditiously proceeding with the arrangements.

Nevertheless, we conclude that the more sensible reading of the

phrase is that where there are two surviving parents, a single

20 A-4458-13T2

parent alone does not have the unilateral right to control

disposition.

This conclusion to read the statutory phrase as a

conjunctive provision in situations when both parents are still

living is consistent with the words of the provision considered

in proper context. Instead of stating "a surviving parent or

parents[,]" the statute states "the surviving parent or

parents." N.J.S.A. 45:27-22(a)(3) (emphasis added). The use of

the article "the" immediately in front of the term "surviving

parent" signifies that when there is only one surviving parent,

the right of decision is conferred upon that parent alone.

Conversely, if both parents are surviving, then the decision-

making authority presumptively is to be jointly exercised.

Had the Legislature intended to give either surviving

parent the singular right to control disposition, it could have

so stated, as is the case in the laws of some other

jurisdictions. Cf. Tex. Health & Safety Code Ann. §

711.002(a)(4) (2014) (giving right to control disposition of

remains to "either one of the decedent's surviving parents");

N.Y. Pub. Health Law § 4201(2)(a)(iv) (giving right to control

disposition of remains to "either of the decedent's surviving

parents"). By comparison, in conferring the right of

disposition to a decedent's surviving adult children or the

21 A-4458-13T2

decedent's brothers and sisters, our own Legislature saw fit to

require agreement by a majority of the survivors in that class

of persons. N.J.S.A. 45:27-22(a)(2), (4). It seems unlikely

that the Legislature would have intended to elevate the wishes

of one surviving parent over the other, when among other groups

of surviving relatives it requires majority agreement or mutual

acquiescence.

Having so construed the statutes to confer on each

surviving parent an equal presumptive say in the disposition of

their child's remains, the question then arises as to what

should or can be done in instances when there is no mutual

agreement or acquiescence. Significantly, there is nothing

expressed in the MSA or in the Cemetery Act, nor in the

associated regulations, that requires a funeral director to

obtain authorization from all parties who have the right to

control the disposition.

For example, before the decision-making right passes down

the hierarchy to the surviving parents, it rests with the

"majority of the surviving adult children." N.J.S.A. 45:27-

22(a)(2). If there are no surviving adult children or parents,

the right then passes to "[a] majority of the brothers and

sisters of the decedent." N.J.S.A. 45:27-22(a)(4). There is

nothing in the statutes or regulations that expressly requires

22 A-4458-13T2

each member of those majorities to individually authorize a

disposition of the remains. Likewise, nothing expressed in the

statutes or regulations requires the funeral director or home to

obtain individualized authorization from surviving parents.

In fact, N.J.S.A. 45:7-95 permits a funeral director to

dispose of human remains "on the written authorization of a

person who claims to be, and is believed to be, a person who has

the right to control the . . . disposition as provided by

[N.J.S.A. 45:27-22]." (Emphasis added). Hence, the plain

language of the statute indicates that the funeral director does

not have an affirmative duty to obtain authorizations from all

parties who have a right to control disposition. Instead of

obligating the funeral director to obtain such explicit assent

from both surviving parents, the statutory and regulatory scheme

permits the director to proceed with the written authorization

provided by a surviving parent who "claims to be and is believed

to be entitled to make the decision," subject to the "reasonable

notice" caveat that we shall discuss, infra, in Part II(C).

Plaintiffs argue that the statutes and regulations should

be construed to impose upon funeral directors an affirmative

duty to inquire of both surviving parents before assuming that

the written directive from one of those parents claiming to be

authorized to make the decision can be treated as valid.

23 A-4458-13T2

Although imposing such a duty might have some advantages, it

also might precipitate undue delays in the disposition of the

decedent's remains while the other relatives with authority are

tracked down and individually consulted. For example, if

plaintiffs' proposed principle of mandatory consultation were

extended, say, to a family of seven children who survived an

intestate widowed parent, it might take considerable time and

effort to solicit the views of all seven of those siblings. It

is not inconceivable that some of those siblings may be too

grief-stricken to want to discuss the subject or weigh in on the

decision. There also may be logistical impediments to making

timely contact with each of them.

Given these —— and possibly many other —— consequences of

imposing a duty of individual consultation, and the absence of

clear mandate establishing such a duty within the present

statutes and regulations, we will not impose this policy choice.

Instead, we defer to the democratic authority of the

Legislature, as well as the administrative expertise of the

Mortuary Board and the Cemetery Board, to consider the wisdom of

amending the statutes and regulations to create such a duty of

consultation. Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 547

(2009); Lourdes Medical Ctr. of Burlington Cty. v. Bd. of

Review, 197 N.J. 339, 366 (2009).

24 A-4458-13T2

C.

With this backdrop, we now turn to the qualified immunity10

provisions that appear in both the MSA at N.J.S.A. 45:7-95 and

in the Cemetery Act at N.J.S.A. 45:27-22(d). The legislative

histories of these statutes indicate that the immunity was first

enacted within the Cemetery Act, dating back to at least 1971.

See N.J.S.A. 8A:5-19 (repealed 2003); L. 1971, c. 333. The

immunity for funeral directors in the MSA appears to have been

enacted in 2003, at the same time that the Cemetery Act was

recodified. See L. 2003, c. 261.

In their present form, both statutes confer qualified

immunity for the disposition of remains in accordance with an

authorization received from the decedent's next of kin unless

the defendant had "reasonable notice" that the representations

made by the surviving relative were "untrue" or that the person

"lacked the right to control" the disposition. N.J.S.A. 45:7-

95; N.J.S.A. 45:27-22(d). The adjective "reasonable" in the

phrase "reasonable notice" connotes an objective standard,

founded upon the notion of a reasonable person in the

10

As case law recognizes, at times the Legislature has conferred

qualified or limited immunity on private organizations to

promote certain public policies and to allocate risks. See,

e.g., Hubner v. Spring Valley Equestrian Ctr., 203 N.J. 184, 196

(2010)(applying the qualified immunity conferred by the Equine

Act, N.J.S.A. 5:15-1, upon defendants for certain equestrian

activities, subject to enumerated exceptions).

25 A-4458-13T2

defendant's position. Scully v. Fitzgerald, 179 N.J. 114, 125-

26 (2004). Such an objective standard of reasonableness is

harmonious with the norms of traditional negligence law. See

Model Jury Charge (Civil) 5.10A(2) (generally defining

negligence as "a failure to use that degree of care, precaution

and vigilance which a reasonably prudent person would use under

the same or similar circumstances"); see also People Express

Airlines v. Consol. Rail Corp., 100 N.J. 246, 262 (1985);

Harpell v. Pub. Serv. Coordinated Transp., 20 N.J. 309, 316

(1956).

In adopting qualified immunity provisions within the MSA

and the Cemetery Act using this objective standard, the

Legislature surely recognized that funeral professionals can

sometimes confront difficult situations in which the

authorization provided by a surviving relative might be

challenged by another relative after the burial or cremation has

taken place. The statutory scheme contemplates that if the

funeral director had not been timely provided with "reasonable

notice" of disagreement among the survivors or a lack of valid

authority by the relative who is making the funeral

arrangements, then the director is relieved of the burden of

defending his or her conduct in a lawsuit and being exposed to

financial tort liability. Conversely, if such "reasonable

26 A-4458-13T2

notice" had been expressed, but was ignored, then the defendant

faces potential liability if the other elements of a cause of

action are established. The statute thus provides a limited

shield of protection, contingent upon whether there is

persuasive proof of reasonable notice.11

There is nothing in the text of the applicable statutes or

regulations that precludes an intern serving under the

supervision of a preceptor from receiving the protection of this

qualified immunity. Moreover, from a functional perspective, it

makes sense for this statutory immunity to extend to such

supervised interns. Without that financial shield, funeral

homes and funeral directors presumably would be loathe to hire

interns or to assume the responsibilities of a preceptor, or

would be reluctant to delegate tasks to the interns that could

spawn future litigation.

In the present case, there was evidence that the intern,

Brenna, was in fact supervised by the funeral director D'Errico

in the course of her work, including the funeral arrangements in

this case. As a matter of law, we hold that Brenna was entitled

as an intern to the qualified protection conferred by N.J.S.A.

11

The statutes and regulations do not specify how a funeral home

is to proceed if it does receive reasonable notice that the

surviving parents disagree about the disposition of their

child's remains. We suggest the Mortuary Board consider

addressing this predicament explicitly within the regulations.

27 A-4458-13T2

45:7-95 and N.J.S.A. 45:27-22(d), assuming that "reasonable

notice" of the father's objections to the cremation had not been

provided.

Case-dispositive questions of reasonableness in tort

actions are commonly questions of fact for the jury (or the

judge in a bench trial). See, e.g., Jerkins v. Anderson, 191

N.J. 285, 305-06 (2007) (holding that the "reasonableness" of a

defendant's efforts in discharging a duty of care is a question

for the trier of fact when the record does not permit summary

judgment); Burke v. Briggs, 239 N.J. Super. 269, 274 (App. Div.

1990) (observing in a negligence case not involving a claim of

intentional tort or strict liability, that the "ultimate

question for the trier of facts to determine . . . is one of

negligence or reasonableness"). Those assessments often turn on

questions of the credibility of the testifying witnesses. Rova

Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474,

484 (1974); see also State v. Nash, 212 N.J. 518, 553 (2013)

(reiterating the long-established principle that jurors are

"well-suited to determine each witness's knowledge, bias,

consistency and overall credibility").

Here, the crucial factual question at trial was whether

Gately, as he insisted in his testimony, told Brenna that he

objected to the cremation of his son. Brenna repeatedly denied

28 A-4458-13T2

in her own testimony that Gately communicated any such objection

to her, either before or at the funeral.

The factual dispute accordingly boiled down to a classic

determination of credibility. The jury was given the

opportunity to believe plaintiffs' witnesses on the subject and

disbelieve Brenna. Its unanimous verdict for the defense

signifies that it was unpersuaded by plaintiffs' proofs and

their claims of reasonable notice.

We cannot conclude from our reading of the cold transcript

that the jury's conclusion was manifestly against the weight of

the evidence. R. 2:10-1; State v. Sims, 65 N.J. 359, 373-74

(1974). The jury obviously found Brenna's account of events

more credible than the conflicting testimony of plaintiffs'

witnesses. We therefore sustain the verdict.

In upholding the jury's verdict finding no liability here

by defendants, we emphasize our limited role as a court of

appellate review. We did not see or hear the trial witnesses.

Nor did we write the statutes that it is our obligation to

enforce. We certainly do not wish to exacerbate the emotional

pain of a grieving parent who has lost his adult child far too

soon. Even so, the jury has literally spoken in this case, and

we discern no legally compelling reason or "miscarriage of

justice" to disturb the outcome. See R. 2:10-1.

29 A-4458-13T2

III.

We see no merit in plaintiffs' secondary argument that the

jury instructions concerning the immunity statutes were

inadequate or improper. Trial counsel were provided ample

opportunity to object to the jury charge and to advocate

different language in those instructions. "[W]hen [a] party

fails to object, the reviewing court must determine whether any

error in the charge was 'of such a nature as to have been

clearly capable of producing an unjust result.'" Toto v.

Ensuar, 196 N.J. 134, 144 (2008) (quoting R. 2:10-2). Here

there was no such plain error.

Although the charge provided here conceivably could have

been more detailed, the charge sufficiently tracked the key

"reasonable notice" facet of the immunity statutes. The charge

was clear and understandable, and consistent with the law. The

trial court did not err in issuing it, nor in denying

plaintiffs' motion for a new trial claiming error.

Affirmed.

30 A-4458-13T2