On October 15, 2015, the Appellate Division of Superior Court of New Jersey published its decision in the case of Gately v. Hamilton Memorial Home Inc., 2015 WL 6181084 (20145) dealing with the liability of a funeral home for the action of an intern when an error is claimed to have occurred concerning the authorization for the cremation of remains. The case deals with the New Jersey state law about the priority of the parties that may authorize the disposition of remains and the liability involved if an error is made. (N.J.S.A. 45:7–95; N.J.S.A. 45:27–22(d).

  According to the facts stated in the decision the deceased son was killed in an automobile accident. The Plaintiffs were the father of the deceased and his second wife. The Plaintiffs lived in Florida. The first wife and mother of the deceased lived in New Jersey with the deceased son. After the accident, the mother of the deceased met with an intern at the funeral home to make the arrangements. The opinion indicates the intern was under the direct supervision of a licensed funeral director, who was in the next room. The mother authorized the funeral home to handle the services, and to perform cremation of the remains. The intern when deposed stated she could not recall telling the mother that both parents had to authorized the cremation, but at trial testified that she had provided that information to the mother.

  The Plaintiffs filed the lawsuit against the funeral home and the intern claiming the cremation was not authorized by both parents, as required by New Jersey law and the funeral home was responsible for the improper actions of the intern. A jury trial was conducted. During the proceedings the father contended that he told the 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 without obtaining an authorization from him. The intern denied the Plaintiffs had advised her of their objections. The jury found in favor of the funeral home and intern on the basis the Plaintiffs had not proven their claim by a preponderance of the evidence. The lower court judge denied a motion for a retrial and the Plaintiffs filed an appeal.

  The father and his current wife argued before the Appellate Court that the trial court erred by instructing the jury that defendants’ conduct is subject to protection under qualified statutory immunities, and that the jury’s verdict was unjust and against the weight of the evidence.

  The first issue considered by the Appellate Court was whether the New Jersey laws dealing with authorization for the disposition of human remains allowed only one parent to authorize the disposition. Interestingly, the Appellate Court interpreted the “or” in the statutory provision that stated “surviving parent or parents” (N.J.S.A .45:27–22(a)(3)) to mean either parent and not both. The Appellate Court then determined that the intern was justified in proceeding on the basis of the sole authorization by the mother in this instance.

  The Appellate Court also rejected the Plaintiffs position that the laws and regulations require a funeral director to determine who is authorized and then be required to obtain the approval of everyone. The Appellate Court’s determination on this issue could have resolved the matter. However, the Appellate Court decided to deal with the next issue of whether an intern was protected by the immunity for funeral directors stated in the statutory provisions because it was an issue of first impression.

  The Appellate Court noted that both the New Jersey Cemetery and Funeral law contained the following:

  “[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.” (emphasis supplied)

  The Appellate Court then reviewed the funeral director licensing laws and regulations. It determined that interns registered with the Mortuary Board were authorized to take certain actions when under the direct supervision of a licensed funeral director. On that basis it concluded that interns who are supervised by a funeral home director are entitled to qualified immunity for the disposition of human remains in accordance with an authorization received from the decedent’s next of kin unless the intern had reasonable notice that the representations made by the surviving relative were untrue or that the person lacked the right to control the disposition.

  This article is for the information of subscribers and does not constitute legal advice about this subject. All subscribers should accordingly consult with their own attorney to make sure they are in compliance with the laws in their state when dealing with an incident.

  The author is licensed to practice law in Illinois, Florida and Wisconsin. He has been involved with legal matters related to the industry in almost every state and can be reached by phone at 847-334-1983 or by email at harv4law@gmail.com.