Qualified Immunity for Funeral Directors

Gately v. Hamilton Memorial Home, Inc., 442 N.J. Super. 542 (App. Div. 2015).  Apart from funeral directors, their attorneys, and a small number of  judges, it’s likely that few people know that funeral directors are given qualified immunity from certain civil lawsuits by N.J.S.A. 45:27-22D, the Cemetery Act, and N.J.S.A. 45:7-95, the Mortuary Science Act.  The qualified immunity applies to actions taken by a funeral director after authorization by a person who claims to be and is believed to be authorized to dictate the funeral, disposition of remains, or disinterment of a body, except in certain circumstances.  The question in this appeal was whether this qualified immunity extended to an intern (a person who used to be known in the funeral home industry as a “registered trainee”) employed by a funeral home.  In an opinion by Judge Sabatino, the Appellate Division ruled that the intern was protected by the immunity.  That opinion affirmed a jury verdict for defendants.

As sometimes happens, in this case, two family members disagreed about how to treat their loved one after death.  Plaintiff John Gately and his wife sued a funeral home and the intern because the funeral home cremated the body of plaintiff’s adult son, at the direction of the son’s mother, plaintiff’s former wife, who signed an authorization form for the cremation.  After the mother had already given that authorization, plaintiff allegedly had told the intern that he did not want his son cremated.  The intern denied that.

Plaintiffs sued for intentional or negligent infliction of emotional distress and loss of consortium.  The Law Division denied defendants’ motion for summary judgment that had been based on the qualified immunity statutes, and the case went to trial.  The jury returned a verdict for defendants.  Plaintiffs appealed.

After an exhaustive discussion of the statutes at issue and their implementing regulations, Judge Sabatino concluded that, in a situation such as this, the law “confer[s] on each surviving parent an equal presumptive say in the disposition of their child’s remains.”  But this was a case where the two parents did not agree.  The panel ruled that “the plain language of the [Mortuary Science Act] indicates that the funeral director does not have an affirmative duty to obtain authorizations from all parties who have a right to control disposition.”  Rather, “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 “reasonable notice” of an objection to that authorization.  Judge Sabatino declined plaintiffs’ invitation to override the statutory language and “impose [a] policy choice” of requiring consent of both parents.

As to whether the intern was protected by the qualified immunity, Judge Sabatino observed that “[t]here 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.”  If the immunity did not extend to interns, funeral directors would be deterred from delegating functions to them.  Moreover, the plain language of a statute and a regulation “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, interns are included under the definition of “funeral director” for purposes of qualified immunity.  There was evidence that the intern here was supervised by the funeral director, including as to the very body at issue.

Nor did the “reasonable notice” caveat salvage the case for plaintiffs.  The jury heard both the father’s testimony that he had told the intern of his objection to cremation and the intern’s testimony that no such thing had happened.  By deciding for defendants, the jury rejected the father’s version.  The standard of review of a jury verdict is whether the decision was “manifestly against the weight of the evidence.”  Judge Sabatino found that it was not.  Accordingly, the jury verdict for defendants was upheld.