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Cole v. Laughrey Funeral Home

376 N.J. Super. 135, 869 A.2d 457 (App. Div. 2005)

CONSUMER FRAUD ACT—Misrepresentations made after execution of a contract for services are not the basis for a claim under the Consumer Fraud Act nor are non-economic losses compensable.

Relatives sued a decedent’s children for emotional distress and sued a funeral home for consumer fraud after the relatives failed to have a viewing for their deceased family member. The suing relatives were the brother, sister, cousin, and natural children of the decedent and the defending children were the decedent’s adopted daughter and her husband. The aggrieved relatives argued that: 1) the decedent’s adopted daughter and her husband excluded them from the funeral arrangements and kept them from participating in a private viewing of the decedent, and that these acts constituted both intentional and negligent infliction of emotional distress upon the family; and 2) the funeral home committed consumer fraud by misleading the aggrieved relatives into believing that the condition of the decedent’s body was unsuitable for a public viewing and by concealing the fact that the defending children were nevertheless holding a separate private viewing.

The decedent’s adopted daughter initiated steps for the funeral of the decedent, retaining the services of the funeral home and signing the contract with it for the decedent’s funeral. This contract included “arrangements for the viewing and funeral services.” The aggrieved relatives were not involved in making arrangements for the funeral, the funeral services or making decisions with respect to whether or not a viewing of the decedent would be held. The decedent’s adopted daughter and her husband made all arrangements with respect to the funeral, the services, and whether a viewing would take place. The adopted daughter consulted with one of the aggrieved relatives in an attempt to compromise on the funeral and burial arrangements and it was decided that the burial of the decedent would take place in the cemetery preferred by the aggrieved relatives. Additionally, two of the aggrieved relatives served as pallbearers.

The aggrieved relatives never requested a viewing of the decedent and neither the decedent’s children nor the funeral home told any of them that they could not have a viewing. Additionally, the funeral home testified that if” the relatives had requested a viewing of the decedent, it “would have permitted them to view him.

The Consumer Fraud Act provides that it is unlawful to use “any unconscionable commercial practice, deception, fraud, ... concealment, ... or omission of any material fact with intent that others rely upon such concealment ... in connection with ... sale or advertisement ..., whether or not any person has in fact been misled, deceived or damaged thereby.” The Appellate Division held that the funeral home had not committed consumer fraud because the alleged misrepresentations were done after the contract for services was entered into between the funeral home and the decedent’s adopted daughter and her husband; therefore, the alleged misrepresentations were not made to induce the aggrieved relatives to purchase the services of the funeral home. Additionally, since the aggrieved relatives claimed they had only suffered emotional harm, they were not entitled to damages since the Consumer Fraud Act does not award damages for non-economic losses.

The Court dismissed the emotional distress claims against the daughter and her husband since the aggrieved relatives failed to show that they had behaved in reckless disregard of a high likelihood that their actions would bring about emotional distress. Additionally, in order to establish a claim of intentional infliction of emotional distress, a plaintiff must show, among other things, that the actor’s conduct was “extreme and outrageous.” Here, the aggrieved relatives failed to show that the adopted daughter and her family behaved in such a manner by holding a private viewing of the decedent without the aggrieved relatives, several of whom were strangers to the daughter and had never spoken to her or her husband before the decedent’s death.

The Court also held that the decedent’s adopted daughter and son-in-law had neither a legal duty to inform the relatives of the private viewing nor to ensure that the relatives participated in a viewing, and the family had no legally protected right to attend the viewing that the decedent’s children had organized. Additionally, it was unforeseeable that the aggrieved relatives would suffer severe emotional injury by attending the funeral, but not the private viewing of the decedent, since a number of them did not have a substantial relationship with the decedent and they were all free to organize their own viewing, but failed to do so. Finally, the relatives failed to distinguish between the emotional distress caused by the conduct of the defending children, the decedent’s death itself, and the manner in which the decedent died (by murder); thus, it was impossible to ascertain whether the decedent’s adopted daughter and her family had actually inflicted severe emotional distress upon the aggrieved relatives.

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