                NOT FOR PUBLICATION WITHOUT THE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
