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

                                         SUPERIOR COURT OF NEW JERSEY
                                         APPELLATE DIVISION
                                         DOCKET NO. A-4458-13T2
    JOHN M. GATELY and
                                              APPROVED FOR PUBLICATION
                                                 October 22, 2015
                                                APPELLATE DIVISION
             Argued September 21, 2015 - Decided October 22, 2015
             Before    Judges     Sabatino,      Accurso,     and
             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,
          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
         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.
      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.
      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.
       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
          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
      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
           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
             [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
      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
                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).]
      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
           The primary legal issue that plaintiffs raise on appeal8 is
    whether the qualified immunity provisions set forth in N.J.S.A.
      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.
      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.
           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
           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.
        The term "registered trainee" is defined in the MSA as
                (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.
          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.
        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
         "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,
      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
         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
                   [(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
          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
          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
    197 N.J. 339
    , 366 (2009).
                                               24                                A-4458-13T2
         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
      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
          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.
      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
        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
           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.
    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.
                                                30                                  A-4458-13T2