RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3638-16T1

L.E. and P.T.,

Plaintiffs-Appellants,

v.

THE PLAINFIELD PUBLIC SCHOOL

DISTRICT, PLAINFIELD BOARD OF

EDUCATION, ANN NETTINGHAM, 

ANGELA BENTO and ANNA 

BELIN-PYLES,

Defendants/Third Party 

Plaintiffs-Respondents,

v.

A.D. and R.B.,

Third Party Defendants.

_____________________________________

Submitted February 12, 2018 – Decided 

Before Judges Sabatino, Ostrer and Rose.

On appeal from Superior Court of New Jersey, Law 

Division, Union County, Docket No. L-2513-15.

Matthew Van Natten, attorney for appellants.

October 5, 2018

APPROVED FOR PUBLICATION

October 5, 2018

APPELLATE DIVISION
A-3638-16T1 2

Nirenberg & Varano, LLP, attorneys for respondents 

(Howard M. Nirenberg, of counsel; Sandra N. Varano, 

on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

Plaintiffs L.E. and her mother, P.T., allege that defendants, a school 

district and several of its employees, negligently supervised L.E. and two 

teenage male students on school grounds; failed to protect L.E. from a sexual 

assault; and failed to undertake an adequate investigation after L.E.'s delayed 

report. Plaintiffs allege that L.E. suffered psychological injury as a result. 

They appeal from the summary judgment dismissal of their complaint.

We conclude defendants owed L.E. a duty to exercise reasonable care in 

supervising her and fellow students during the school day; and plaintiffs' 

expert provided sufficient evidence for a jury to reasonably conclude that 

defendants failed to fulfill that duty. The court erred in determining that two 

provisions of the Tort Claims Act (TCA or Act) – N.J.S.A. 59:5-4, governing

the failure to provide police protection services, and N.J.S.A. 59:3-5, 

governing the failure to enforce laws – shield defendants from liability for the 

negligent supervision of the students preceding the assault. However, we 

agree with the trial court that plaintiffs failed to establish a reasonable standard 

of care governing the appropriate response to L.E.'s report of the assault, or 
A-3638-16T1 3

that she suffered any harm from the alleged shortcomings in the post-assault 

investigation. 

Therefore, we reverse in part, and affirm in part, the trial court's order 

granting summary judgment.

I.

We view the facts in the light most favorable to plaintiffs. Brill v. 

Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). June 23, 2011, was 

the last day of L.E.'s high school freshman year. She was on the playground 

for a scheduled gym class, but most students had "skipped" that day. The 

boys' and girls' gym classes were combined, but there was no real instruction. 

L.E. testified, "We didn't really have a class. Nobody came. We're just, it was 

like a free day." She said no teachers or security guards were present on the 

playground. 

Two male students, A.D. and R.B., approached her on the playground. 

She knew them from her classes. She once had a crush on A.D., but recently 

he had been bullying her. He offered to reconcile. 

While the class was technically still in session, L.E. left the playground 

and entered the school building on the way to the bathroom. The boys left too, 

and the three entered the school building. None of them had hall passes, 
A-3638-16T1 4

notwithstanding that the school required them when students used the hallways 

during class. 

L.E. reached the girls' bathroom, which was across the hallway from the 

boys' bathroom. R.B. asked L.E. to enter the boys' bathroom and she 

consented. L.E. alleged that once inside the boys' bathroom, an unwanted 

sexual encounter took place with both boys, which escalated with one of them, 

as the other watched. When another student entered the boys' bathroom, L.E. 

ran out. 

In December the following school year, L.E. reported the incident to a 

guidance counselor and a basketball coach. She did so after she overheard 

R.B. boasting about the incident to fellow classmates. L.E. also told her 

mother. The principal and school superintendent were soon involved, as were 

local police and the Division of Youth and Family Services, as it was known at 

the time. No criminal charges were brought. Shortly after her report, L.E. left 

school and was hospitalized for extended periods due to mental illness. 

Plaintiff contends the assault triggered and exacerbated her condition. 

Plaintiffs retained an expert in school security and safety. The expert 

visited the school in 2016. He noted that the school maintained a closed 

circuit television (CCTV) system of sixteen cameras that could be monitored 

from the school's front desk, including one camera with a view of the boys' 
A-3638-16T1 5

bathroom where the expert believed the assault occurred.1 The school also 

maintained locks restricting access to the school building.

Citing both the school's own policy and "school security best practices," 

the expert opined that "students should be supervised at all times during 

regular school hours" and hall passes should be required for students traveling 

within a building during class sessions. He also opined that controlling access 

to school buildings "is critical to providing a safe and secur[e] school 

environment." The expert opined that defendants failed to implement a hallpass system, failed to control access to the building, and failed to supervise 

L.E., A.D. and R.B. on the date of the incident. 

After discovery, the trial court granted defendants' motion for summary 

judgment. In an oral opinion, the trial court found defendants were immune 

under the TCA. The court invoked N.J.S.A. 59:5-4, which provides public 

entities and employees immunity for "failure to provide police protection 

services," and "failure to provide sufficient police protection service." The 

court also relied on N.J.S.A. 59:3-5, which provides immunity to public 

employees for injuries "caused . . . by his [or her] failure to enforce any law." 

See also N.J.S.A. 59:2-4 (extending similar immunity to public entities). The 

 

1

 Based on the date of his visit to the school, the expert acknowledged that he 

did not know whether the system was in place or operational when the assault 

occurred.
A-3638-16T1 6

court rejected plaintiffs' negligent supervision claim, which it found 

unsupported by the expert's opinion. The judge stated:

So plaintiffs argue that the defendants did not 

reasonably supervise the students. They point to the 

parts of the expert report noting the various failures 

that are alleged . . . : failure to supervise, failure to 

have hall passes, not having somebody on the 

playground. But basically it boils down to a lack of 

security or a lack of supervision. And if it's a lack of 

security . . . the Tort Claims Act provides a defense. 

And if it's a lack of supervision, there's no expert for 

that. The policeman[2]is not an expert on what is 

appropriate supervision for 15-year-olds in a high 

school. 

The court also questioned whether plaintiffs could prove causation. 

And I guess what's alleged here is that they did not act 

to . . . give hall passes, have one police person on 

campus or have somebody everywhere at every point 

in time to make sure that girls are not entering the 

boys bathroom. . . . And there's a lot of assumptions 

to be made that if somebody was there, . . . that person 

would have stopped her. It's really left a lot to 

speculation. 

However, the court ultimately concluded that plaintiffs' negligent 

supervision claim was, at bottom, a claim of inadequate security. "Plaintiffs 

here have not raised any facts outside of lack of security at school which 

 

2

 The court referred thereby to plaintiffs' expert, who was a former police 

detective and municipal police commissioner. After his policing career, the 

expert served lengthy stints as the security chief for two hospitals and a New 

Jersey university. He also reported experience managing the day-to-day 

security operations of educational programs serving K-12 students. 
A-3638-16T1 7

would subject defendants to liability." The court found that statutory 

immunity shielded defendants. "Mainly, the plaintiff is alleging . . . that 

defendants negligently supervised the three students, despite the fact that even 

if this were true, it would be irrelevant in light of the applicability of the police 

protection and the failure to enforce immunities." 

The trial court also dismissed plaintiffs' claim that defendants failed to 

conduct an appropriate investigation of L.E.'s allegation. After reviewing the 

various steps that the individual defendants took, the court relied on plaintiffs' 

failure to present any evidence or expert opinion to establish a standard of care 

for the appropriate response to L.E.'s report. The court concluded that 

plaintiffs failed to demonstrate how any shortcomings in the individual 

defendants' response caused L.E. injury. 

On appeal, plaintiffs contend the trial court misapplied the TCA. They 

argue that their claim pertains to negligent supervision, not inadequate police 

protection or failure to enforce laws. They also contend the trial judge 

inappropriately relied on facts pertaining to L.E. and P.T., which the judge 

learned while presiding over a Family Part matter involving them.
A-3638-16T1 8

II.

Exercising de novo review, see Henry v. N.J. Dep't of Human Servs., 

204 N.J. 320, 330 (2010), we conclude the trial court erred in dismissing 

plaintiffs' negligent supervision claim.

We turn first to the TCA. The Act establishes the general principal of 

sovereign immunity, which is subject to exceptions, and specific grants of 

immunity. The Act provides, "Except as otherwise provided by this act, a 

public entity is not liable for an injury, whether such injury arises out of an act 

or omission of the public entity or a public employee or any other person." 

N.J.S.A. 59:2-1. But, the Act states generally that "[a] public entity is liable 

for injury proximately caused by an act or omission of a public employee 

within the scope of his employment in the same manner and to the same extent 

as a private individual under like circumstances." N.J.S.A. 59:2-2(a); see also

Margolis and Novack, Claims Against Public Entities, 1972 Task Force 

Comment to N.J.S.A. 59:2-2 (2018) (stating the subsection is "[t]he primary 

source of public entity liability"). Similarly, "[e]xcept as otherwise provided 

by this act, a public employee is liable for injury caused by his [or her] act or 

omission to the same extent as a private person." N.J.S.A. 59:3-1(a). 

Notwithstanding these general provisions, defendants seek protection 

under the specific immunities granted by N.J.S.A. 59:5-4 and N.J.S.A. 59:3-5. 
A-3638-16T1 9

They bear the burden to plead and prove immunity. Leang v. Jersey City Bd. 

of Educ., 198 N.J. 557, 582 (2009).

N.J.S.A. 59:5-4 "precludes suit against municipalities and their 

responsible officers based upon contentions that damage occurred from the 

absence of a police force or from the presence of an inadequate one." Sczyrek 

v. Cty. of Essex, 324 N.J. Super. 235, 241 (App. Div. 1999) (quoting Suarez v. 

Dosky, 171 N.J. Super. 1, 9 (App. Div. 1979)). The immunity provision 

"protect[s] 'the public entity's essential right and power to allocate its 

resources'" and "determine with impunity whether to provide police protection 

service and, if provided, to what extent." Ibid. (quoting Rodriguez v. N.J. 

Sports & Exposition Auth., 193 N.J. Super. 39, 43 (App. Div. 1983)).

We disagree with the trial court's view that plaintiffs' claim relates to a 

failure to provide police protection, or to enforce laws. Plaintiffs alleged in 

their complaint that defendants violated a duty when they "failed to properly 

supervise, attend to, care for and otherwise provide for the safety of . . . [L.E.]" 

and they "failed to properly supervise, attend to, patrol, monitor, control and 

regulate the conduct and behavior of [A.D.] and [R.B.] who were other 

students either entrusted to their care or over whom they have supervisory 

responsibilities." Plaintiffs did not ground their claim on a "failure to provide 
A-3638-16T1 10

police protection service," N.J.S.A. 59:5-4, or a "failure to enforce any law," 

N.J.S.A. 59:3-5. 

The trial court and defendants misplace reliance on Setrin v. Glassboro 

State College, 136 N.J. Super. 329 (App Div. 1975), which involved a claim 

by a person stabbed on college property after leaving a basketball game. The 

plaintiff did not ground his claim on negligent supervision. See id. at 332. 

Rather, he claimed that prior incidents of racial unrest created a "dangerous 

condition" that rendered the defendants liable under the proviso of N.J.S.A. 

59:2-7, which states, "A public entity is not liable for failure to provide 

supervision of public recreational facilities; provided, however, that nothing in 

this section shall exonerate a public entity from liability for failure to protect a 

dangerous condition . . . ." (emphasis added).

We held that "the mere presence on the property of a person with 

criminal intent or purpose" was not a dangerous condition that would impose 

liability on the school. Setrin, 136 N.J. Super. at 333. In passing, we stated 

that the plaintiff's claim amounted to a claim of insufficient police protection, 

which was barred by N.J.S.A. 59:2-7. Id. at 335. We simply did not address 

the interplay between a negligent supervision claim and N.J.S.A. 59:5-4 or 

N.J.S.A. 59:3-5. 
A-3638-16T1 11

The other reported police-protection cases upon which defendants rely

extend N.J.S.A. 59:5-4 to claims involving security arrangements and the 

adequacy of privately retained security officers; but they do not justify 

immunizing school staff's failure to supervise interactions among students on 

school grounds during the school day. See Sczyrek, 324 N.J. Super. at 241-42 

(finding immunity for allegedly inadequate security plan in courthouse, which 

failed to prevent entry and murder by armed person); Rodriguez, 193 N.J. 

Super. at 42 (finding immunity for failure to provide sufficient private security 

protection services to prevent robbery on racetrack parking lot). 

The policy underlying N.J.S.A. 59:5-4 is to shield a public entity's 

discretionary decisions regarding how to allocate and direct scarce police 

resources. Suarez, 171 N.J. Super. at 9. Plaintiffs do not question the 

allocation of police or security personnel, nor do they contend defendants 

provided an inadequate police presence in the school. Plaintiffs' claim relates 

to the separate duty of a school and its staff to exercise reasonable care in 

supervising children entrusted to them. Plaintiffs assert that L.E. was injured 

by fellow students whom defendants failed to supervise. Their expert 

addresses the failure to issue hall passes, the absence of teachers or other staff 

on the playground during the class hour, and the students' unfettered access to 
A-3638-16T1 12

the school building during class hour. These failures do not involve 

inadequate police protection. 

Courts in other jurisdictions have likewise distinguished between policeprotection immunity and educators' duty to supervise and assure the safety of 

students. See Peterson v. San Francisco Cmty. Coll. Dist., 685 P.2d 1193, 

1202 (Cal. 1984) (concluding that a provision comparable to N.J.S.A. 59:5-4 

did not immunize college from claims that it failed to warn student of danger, 

or failed to take other steps to prevent assault); Moore ex rel. Knight v. Wood 

Cty. Bd. of Educ., 489 S.E.2d 1, 5 (W. Va. 1997) ("A county school board's 

policy regarding supervision of students on school grounds is [not] police . . . 

protection, and the immunity cited . . . does not therefore apply.") 

Defendants also mischaracterize plaintiffs' claim as one alleging a 

failure to enforce the law against sexual assault. Defendants cite Bombace v. 

City of Newark, 125 N.J. 361 (1991), which addressed the immunity for failure 

to enforce a law. The Court held that the defendants were entitled to summary 

judgment on plaintiffs' complaint that a fatal apartment fire caused by a stove 

or portable heater could have been prevented had the City enforced laws 

requiring adequate heating and smoke detectors. Id. at 373-74. The Court 

noted that the immunity under N.J.S.A. 59:3-5 and N.J.S.A. 59:2-4 addresses 

"the government's failure to act or non-action" where there is usually "a 
A-3638-16T1 13

principal wrongdoer from whom to seek redress." Id. at 372. The immunity 

recognizes that the government cannot "do everything that might be done." Id.

at 372 (quoting N.J.S.A. 59:1-2). By contrast, plaintiffs focus not on the 

failure to act in the form of the non-enforcement of laws, but on the negligent 

discharge of the supervisory function that the school had already assumed 

when students were attending class. 

Our courts have consistently held that school officials have a duty to 

supervise the children in their care. See, e.g., Jerkins v. Anderson, 191 N.J. 

285, 296 (2007) (stating that "[s]chool officials have a general duty 'to exercise 

reasonable supervisory care for the safety of students entrusted to them, and 

[are accountable] for injuries resulting from failure to discharge that duty'") 

(quoting Caltavuturo v. City of Passaic, 124 N.J. Super. 361, 366 (App. Div. 

1973) (alteration in original)); Frugis v. Bracigliano, 177 N.J. 250, 268-70 

(2003) (stating school officials' duty of care "extends to supervisory care" of 

their students). We have recognized that "[t]eachers must at times be present 

to oversee students on school playgrounds and in hallways, classrooms, 

lunchrooms and auditoriums." Kibler v. Roxbury Bd. of Educ., 392 N.J. 

Super. 45, 55 (App. Div. 2007). The duty may be violated by nonfeasance, as 

well as misfeasance. Titus v. Lindberg, 49 N.J. 66, 74 (1967); Caltavuturo, 

124 N.J. Super. at 366. 
A-3638-16T1 14

"The theory behind the duty is that the relationship between the child 

and school authorities is not a voluntary one but is compelled by law." Frugis, 

177 N.J. at 270. Because "[t]he child must attend school and is subject to 

school rules and discipline," school officials "are obligated to take reasonable 

precautions for [the child's] safety and well-being." Ibid. 

The supervisory duty extends to "foreseeable dangers . . . [that] arise 

from the careless acts or intentional transgressions of others." Id. at 268; see 

also L.W. ex rel L.G. v. Toms River Reg'l Sch. Bd. of Educ., 189 N.J. 381, 406 

(2007). In Frugis, the Court held that the supervisory duty extended to protect 

students from the transgressions of an adult – a school principal who privately 

photographed students in inappropriate poses. 177 N.J. at 268. In L.W., the 

Court applied the supervisory duty to a case of student-on-student harassment. 

189 N.J. at 406-07. In Titus, the Court affirmed a jury verdict finding a 

principal liable for negligent supervision of a student who shot a paper clip at 

another student, injuring him. 49 N.J. at 75-76; see also Longo v. Santoro, 195 

N.J. Super. 507 (App. Div. 1984) (reversing summary judgment for the school 

board and principal whom the plaintiff claimed negligently assigned 

supervisory personnel, who failed to prevent one student from striking another 

with a rock); Kibler, 392 N.J. Super. at 55 (noting, in reference to teachers' 
A-3638-16T1 15

supervisory responsibilities, that "there is invariably the prospect that a 

student-on-student altercation will erupt"). 

Consistent with this authority, we conclude that school personnel's 

supervisory responsibilities may extend to the prevention of unwanted sexual 

encounters between students. Although we have found no New Jersey case 

addressing that form of student-upon-student assault, persuasive out-of-state 

decisions have found liability in such cases. See J.H. v. Los Angeles Unified 

Sch. Dist., 107 Cal. Rptr. 3d 182, 196 (Ct. App. 2010) (finding student who 

was sexually assaulted during a voluntary, school-sponsored after-school 

program had "a right to reasonable protection"); M.W. v. Panama Buena Vista 

Union Sch. Dist., 1 Cal. Rptr. 3d 673, 675 (Ct. App. 2003) (recognizing a duty 

of supervision where an eighth-grade special education student was sexually 

assaulted by another student in the school bathroom before classes began); 

Collins v. Sch. Bd. of Broward Cty., 471 So. 2d 560, 564 (Fla. Dist. Ct. App. 

1985) (holding that a teacher and school board "owed a duty to use reasonable 

care in supervising" a class in which an emotionally handicapped student was 

sexually assaulted); Doe v. Dep't of Educ. of City of New York, 862 N.Y.S.2d 

598, 599-600 (App. Div. 2008) (holding that a school could be liable for 

negligent supervision of students if an alleged sexual assault against the 

plaintiff on school grounds was foreseeable); Doe by Roe v. Orangeburg Cty. 
A-3638-16T1 16

Sch. Dist., 495 S.E.2d 230, 232 (S.C. Ct. App. 1997) (finding, in a student-onstudent sexual assault case, that a jury could conclude the school acted with 

gross negligence by leaving a class of students unsupervised for fifteen 

minutes). 

School officials must exercise "that degree of care which a person of 

ordinary prudence, charged with comparable duties, would exercise under the 

same circumstances." Caltavuturo, 124 N.J. Super. at 366. In Frugis, 

plaintiffs proceeded on the theory that the school board had not implemented 

proper procedures for school officials to report a principal's inappropriate 

behavior toward students. 177 N.J. at 270. In L.W., the Court acknowledged 

that "[a] school cannot be expected to shelter students from all instances of 

peer harassment" but "reasonable measures are required to protect our youth, a 

duty that schools are more than capable of performing." 189 N.J. at 406. 3

In addition to establishing a duty of care, plaintiffs must prove a breach 

of the duty, actual and proximate causation, and damages. See Jersey Cent. 

Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013) (setting forth 

four requisites of negligence action). There was sufficient evidence that 

school officials breached their duty. L.E. asserted there was no instruction or 

 

3

 The parties have not cited to us, nor have we found, any State regulations or 

Department of Education guidelines or standards addressing the level of 

supervision that a high school should maintain over its students.
A-3638-16T1 17

supervision during the gym class period. The boys and girls mixed freely on 

the playground, so A.D. and R.B. were free to approach L.E. The three were 

also able to leave the playground together during the class period, without 

securing hall passes or the express permission of a staff-person. They freely 

entered the school building and proceeded to the hallway. They avoided 

observation of school staff, despite the presence of a CCTV camera trained on 

the area (assuming it was in place in 2011). 

Plaintiffs' expert opined that reasonable measures to prevent student-onstudent assault, as occurred here, included enforcing a system of hall passes, 

maintaining supervision of students in class and elsewhere, and preventing free 

entry into the school building. The expert also noted that the surveillance 

system he observed in 2016 covered the hallway where L.E. entered the boys' 

bathroom; yet, there is no evidence that a staff-person monitored the area, 

spotted L.E. or attempted to intervene.4 

 

4

 We conclude the court mistakenly rejected the qualifications of plaintiffs' 

expert to opine about "what is appropriate supervision for 15-year-olds in a 

high school." Our courts "take a liberal approach when assessing a person's 

qualifications." State v. Jenewicz, 193 N.J. 440, 454 (2008) (reversing 

exclusion of expert). Although the decision to qualify an expert under 

N.J.R.E. 702 is vested in the trial court's discretion, State v. Torres, 183 N.J. 

554, 572 (2005), "[a]n appellate court can . . . discern an abuse of discretion 

when the trial court fails to take into consideration all relevant factors . . . ." 

State v. S.N., 231 N.J. 497, 515 (2018) (quoting State v. C.W., 449 N.J. Super. 

231, 255 (App. Div. 2017)). The trial court did not address the expert's 

(continued)
A-3638-16T1 18

We also decline to follow the trial court's view of proximate causation. 

"Ordinarily these questions of proximate and intervening cause are left to the 

jury for its factual determination." Titus, 49 N.J. at 76 (quoting Rappaport v. 

Nichols, 31 N.J. 188, 203 (1959)); see also Perez v. Wyeth Labs, Inc., 161 N.J. 

1, 27 (1999). This is not a case where "no reasonable jury could find that the 

plaintiff's injuries were proximately caused" by defendants' alleged negligence. 

See Vega by Muniz v. Piedilato, 154 N.J. 496, 509 (1998). In Titus, the Court 

rejected the school principal's argument that, even assuming "a lack of due 

supervision," the assailant's intentional conduct was the sole cause of the 

victim's injury, breaking the causative chain. 49 N.J. at 76. "The fact that 

there were also intervening causes which were foreseeable or were normal 

incidents of the risk created would not relieve the tortfeasor of liability." Ibid. 

A jury could reasonably find that the risk of sexual misbehavior among high 

school teenagers was foreseeable. 

The trial court considered it speculative that enforcement of a hall-pass 

system could have prevented the assault. Yet, a jury may reasonably conclude 

that the presence of teachers would have had a deterrent effect. Id. at 75 

("'The mere presence of the hand of authority and discipline normally is 

 

(continued)

significant employment and academic experience, after his policing career, in 

the area of school security and safety. 
A-3638-16T1 19

effective'" to deter misbehavior) (quoting Ohman v. Bd. of Educ., 90 N.E.2d 

474, 478 (N.Y. 1949)). A jury could find that a teacher exercising reasonable 

care would not have permitted L.E. and both boys to take a bathroom break at 

the same time, in the middle of a class period, and enter the apparently empty 

building together. Also, if the students had been engaged in regular class 

activities, as opposed to enjoying a "free day" on the playground during class 

time, their initial interaction on the playground may have been prevented. Had 

school staff monitored the hallway – personally or through the CCTV system if 

operational – they may have prevented or quickly responded to L.E.'s entry 

into the boys' bathroom. Although a finding of proximate causation is far from 

certain, a jury could reasonably find that defendants' negligent supervision was 

a proximate cause of the injury. 

Although we reverse the trial court's dismissal of plaintiffs' negligent 

supervision claim, we agree with the trial court's assessment of their claim that 

defendants inadequately responded to L.E.'s report of the assault. Plaintiffs 

failed to present sufficient evidence on the standard of care or in establishing 

that any shortcoming in defendants' response caused or exacerbated L.E.'s 

injury. Any further discussion on that point is not warranted. See R. 2:11-

3(e)(1)(E).
A-3638-16T1 20

Finally, we need not address in any detail the issue of the trial judge's 

reference to facts of which she became aware in a separate Family Part 

proceeding but which were not of record on the summary judgment motion. 

The facts had no discernible impact on the court's decision, nor do they affect 

the disposition we reach here.

Reversed in part; affirmed in part; and remanded. We do not retain 

jurisdiction.