John M. Gately and Patty Sue Gately v. Hamilton ( 2015 )

NOT FOR PUBLICATION WITHOUT THE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