E.C. VS. LEO INGLIMA-DONALDSON (L-1419-18, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2752-20
E.C., a minor, by his guardians,
D.C. and S.C., and D.C. and
S.C., individually,
Plaintiffs-Respondents,
v.
LEO INGLIMA-DONALDSON, APPROVED FOR PUBLICATION
BRADLEY DONALDSON,
December 16, 2021
Defendants-Respondents, APPELLATE DIVISION
and
BLOOMFIELD BOARD OF
EDUCATION,
Defendant-Appellant,
and
COUNTY OF ESSEX, and STATE
OF NEW JERSEY,
Defendants.
______________________________
Argued October 19, 2021 – Decided December 16, 2021
Before Judges Fisher, Currier and DeAlmeida.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Essex County,
Docket No. L-1419-18.
Roshan D. Shah argued the cause for appellant
(Anderson & Shah, LLC, attorneys; Roshan D. Shah, of
counsel and on the briefs; Joseph E. Lanzot and Erin
Donegan, on the briefs).
Robert R. Fuggi, Jr. argued the cause for respondent
E.C., a minor by his guardians D.C. and S.C. (Fuggi
Law Firm, PC, attorneys; Robert R. Fuggi, Jr., of
counsel and on the brief; Michael R. Napolitano, on the
brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
In 2019, the Legislature expanded public-entity civil liability for claims
based on sexual assaults and other sexual misconduct by enacting N.J.S.A. 59:2-
1.3(a), which disables in those instances the immunities provided by the Tort
Claims Act.1 In this action, plaintiff E.C. alleges he was the victim of the sexual
misconduct of a teacher employed by the Bloomfield Board of Education . In
appealing the partial denial of its summary judgment motion, the board argues
that this new statute does not apply unless the public entity – and not just the
public employee – has engaged, in the words of the statute, in "willful, wanton
1
N.J.S.A. 59:1-1 to 12-3.
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or grossly negligent" conduct. The board also argues that even if triggered,
N.J.S.A. 59:2-1.3(a) deprives the public entity only of its Tort Claims Act
immunities, and not two defenses under the Act – the verbal threshold, N.J.S.A.
59:9-2(d), and the declaration that a public entity "is not liable for the acts or
omissions of a public employee constituting a crime . . .," N.J.S.A. 59:2 -10 –
that the board argues are not immunities and remain applicable. We agree the
verbal threshold is not an immunity and applies here, but we otherwise reject
the board's arguments and affirm the denial of summary judgment.
I
The board hired defendant Leo Inglima-Donaldson in May 2008 to begin
working as a teacher at Bloomfield High School in September 2008. As part of
the hiring process, the board conducted a criminal background check o n
Inglima-Donaldson; no red flags went up. During his employment, Inglima-
Donaldson consistently received "excellent" teaching evaluations and was
named head coach of the high school's cross-country track team in 2014.
In October 2016, law enforcement learned J.M., a sixteen-year-old, had
disclosed to his therapist that he and Inglima-Donaldson had been sexually
involved. Inglima-Donaldson was arrested, and the board suspended and
ultimately terminated his employment. Inglima-Donaldson was indicted in June
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2017 and charged with, among other things, aggravated sexual assault and
endangering the welfare of J.M. and another minor, K.F.
During the investigation, law enforcement officials obtained statements
from eight members of the track team, including plaintiff E.C., who was
attending Bloomfield High School when the events involving J.M. and K.F.
occurred. During the initial investigation, E.C. did not report anything to the
prosecutor's office, but he later described several instances in which Inglima-
Donaldson engaged in lewd and inappropriate conduct:
• in December 2015 or January 2016, Inglima-
Donaldson was playing "hide and seek" with the
team with the lights off and his pants down;
• in December 2015 or January 2016, Inglima-
Donaldson drove E.C. home from practice and
when they were alone, he put his hand on E.C.'s
thigh and groin in a sexual manner;
• in late May or early June 2016, Inglima-
Donaldson said after practice, "let's all get naked
and go home";
• in late summer of 2016, Inglima-Donaldson and
his partner brought the team members to a
friend's house, where Inglima-Donaldson
undressed and jumped in the pool, asking the
student team members to join him;
• in October 2016, while on a team run, Inglima-
Donaldson had the student team members change
shorts in front of him; and
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• in October 2016, Inglima-Donaldson brought
student team members back to his home after
practice and had them play "naked twister."
More than a year after Inglima-Donaldson's October 2016 arrest, E.C.'s
parents filed this action for damages on his behalf and their own behalf. After a
motion to dismiss, the completion of discovery, and a motion for summary
judgment, only one claim remained 2: plaintiffs' claim that the board should be
held vicariously liable for Inglima-Donaldson's actions. In denying summary
judgment on that claim, the trial judge determined that: N.J.S.A. 59:2-1.3(a)(1)
was triggered by Inglima-Donaldson's wrongful acts; this triggering deprived
the board of its Tort Claims Act immunities; and N.J.S.A. 59:2-10 and N.J.S.A.
59:9-2(d) are immunities and therefore do not apply to E.C.'s claims.
2
Plaintiffs' complaint contained twenty-four counts. The board's motion to
dismiss eliminated all but seven counts, which asserted: the board's negligent
hiring, supervision, and retention of Inglima-Donaldson; the board's vicarious
liability for Inglima-Donaldson's actions; negligent infliction of emotional
distress on E.C.; negligent infliction of emotional distress on D.C. and S.C.; and
loss of consortium. On the summary judgment motion's return date, plaintiffs'
counsel advised of the withdrawal of the consortium claim. The judge granted
summary judgment in the board's favor on all the other claims except the
vicarious liability claim.
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We granted leave to appeal to consider whether the trial judge accurately
construed these statutes when he denied in part the board's summary judgment
motion.
II
N.J.S.A. 59:2-1.3(a) was one part of a group of laws enacted to expand
the rights of victims of sexual assaults and other sexual misconduct. Along with
this amendment to the Tort Claims Act, the Legislature provided a significantly
greater time period in which a minor victim of sexual misconduct may
commence a civil action. See N.J.S.A. 2A:14-2(a); N.J.S.A. 2A:30B-6; N.J.S.A.
2A:61B-1. In addressing the fact that victims might also encounter sexual
misconduct involving public entities and public employees, the Legislature
disabled Tort Claim Act immunities in circumstances defined by N.J.S.A. 59:2-
1.3(a) and eliminated the procedural notice-of-claim requirements in cases like
this. See N.J.S.A. 59:8-3(b). We thus consider the meaning and scope of
N.J.S.A. 59:2-1.3(a) as illuminated by the Legislature's stated desire to expand
the rights of victims of sexual assaults and other sexual misconduct.
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To further this intent, the Legislature enacted the statute in question, 3
declaring that "[n]otwithstanding any provision of" the Tort Claims Act "to the
3
The Legislature initially enacted a version far less complex than that now in
effect. The original version stated, in its entirety:
Notwithstanding any other provision of law to the
contrary, including but not limited to the "New Jersey
Tort Claims Act," N.J.S. 59:1-1 et seq., a public entity
is liable in an action at law for an injury resulting from
the commission of sexual assault, any other crime of a
sexual nature, a prohibited sexual act as defined in
[N.J.S.A. 2A:30B-2], or sexual abuse as defined in
[N.J.S.A. 2A:61B-1].
[L. 2019, c. 120 (May 13, 2019).]
The amended version, L. 2019, c. 239 (Aug. 9, 2019), which is the version now
in effect, significantly revamped the same concept in light of Governor Murphy's
statement at the time that he signed the bill into law based on the Legislature's
commitment "to introduce and swiftly pass a bill that will correct an erro r . . .
relating to the liability of public entities." Governor's Statement Upon Signing
Senate Committee Substitute for Senate Bill No. 477 (May 13, 2019). That error,
according to the Governor's statement, was that the original version did not
"clarify[] that public entities should be held to the same standard of liability that
is applied to religious and nonprofit organizations." Ibid. As we will shortly
demonstrate, this statement further reveals the error in the board's argument.
The new version, which included the "willful, wanton and grossly
negligent" standard, also broke down its limitation of the New Jersey Tort
Claims Act broadly described in the May 13, 2019 version into two parts –
subsections (a) and (b) – and then broke subsection (a) into two parts –
subsections (1) and (2) – that are quoted in the text above.
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contrary," Tort Claims Act immunities would not apply to insulate from civil
liability:
(1) . . . a public entity or public employee . . . as a result
of a sexual assault, any other crime of a sexual nature,
a prohibited sexual act as defined [in N.J.S.A. 2A:30B-
2], or sexual abuse as defined in [N.J.S.A. 2A:61B-1]
being committed against a person which was caused by
a willful, wanton or grossly negligent act of the public
entity or public employee; and
(2) . . . a public entity . . . as a result of a sexual assault,
any other crime of a sexual nature, a prohibited sexual
act as defined in [N.J.S.A. 2A:30B-2], or sexual abuse
as defined in [N.J.S.A. 2A:61B-1] being committed
against a minor under the age of 18, which was caused
by the negligent hiring, supervision or retention of any
public employee.
The focus here is on subsection (1) 4 and on the board's argument that the
trial judge incorrectly interpreted this statute by holding that a public entity's
immunities will be disabled whenever a public employee's conduct was willful,
4
As noted earlier, the trial judge granted summary judgment in favor of the
board on plaintiffs' negligent hiring, supervision, and retention claims. Plaintiffs
did not seek leave to appeal those parts of the order that granted summary
judgment, and, therefore, the soundness of those determinations is not before us
at this time but certainly not foreclosed from review once a final judgment is
entered in the trial court. The same is true for all other interlocutory orders
entered in the trial court; our discretionary allowance of an interlocutory appeal
does not give any party either the right or obligation to file an appeal of other
interlocutory orders. See Barr v. Bishop Rosen & Co., Inc., 442 N.J. Super. 599,
605 (App. Div. 2015).
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wanton or grossly negligent. The board contends that for a public entity to lose
its immunities under this provision, the public entity's conduct must also be
willful, wanton or grossly negligent. The board argues this despite the statute's
declaration that such conduct need be attributed only to "the public entity or
public employee." N.J.S.A. 59:2-1.3(a)(1) (emphasis added). We find the
board's logic to be faulty for a few reasons.
First, as we just noted, the statute's plain language expresses that the
public entity's immunities will be disabled when the sexual offense was caused
by the willful, wanton or grossly negligent conduct of the public entit y "or"
public employee. Ibid. In essence, the board would have us interpret this statute
as if the conjunctive "and" appears in place of the disjunctive "or."5 We disagree
and assume the Legislature meant what it said when it declared that the willful,
wanton or grossly negligent conduct could be provided by either the public
5
Although the board has not made the argument, we are mindful there have
been times when our courts have recognized a legislative intent to use "and" and
"or" interchangeably. See Howard v. Hardwood's Restaurant Co., 25 N.J. 72, 88
(1957); Murphy v. Zink, 136 N.J.L. 235, 239 (Sup. Ct. 1947), aff'd o.b., 136
N.J.L. 635 (E. & A. 1948). This particular statute, however, was the subject of
an almost immediate revision, see n.3, above, with, among other things, the
phrase "the public entity or public employee" being inserted after a description
of the type of claim that would trigger the statute. This strongly suggests to us
that the Legislature was focused on the narrow task before it after enacting a
version of this statute that was immediately recognized as in need of revision.
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employee or the public entity. It is not our role to "rewrite a plainly-written
enactment of the Legislature []or presume that the Legislature intended
something other than that expressed by way of the plain language." O'Connell
v. State, 171 N.J. 484, 488 (2002).
Second, the board invokes the tenet of statutory construction that "full
effect should be given, if possible, to every word of a statute" and courts should
"[]not assume that the Legislature used meaningless language." Gabin v. Skyline
Cabana Club, 54 N.J. 550, 555 (1969); see also McCann v. Clerk of Jersey City,
167 N.J. 311, 321 (2001). The board argues the phrase "willful, wanton or
grossly negligent" – if attributable to only the public entity or public employee
– is rendered redundant here. Stated another way, the board argues that if the
"willful, wanton or grossly negligent" requirement is satisfied when only a
public employee has so acted, the phrase becomes unnecessary because the
statute also depends on the commission of a sexual assault or any other crime of
a sexual nature, all of which inherently carry that same or more egregious state
of mind. By including the "willful, wanton or grossly negligent" phrase after
describing the types of offenses that trigger N.J.S.A. 59:2-1.3(a)(1), the board
argues the Legislature must have meant that the phrase would apply to both
public entities and public employees.
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It may be true the phrase "willful, wanton or grossly negligent" becomes
unnecessary when a public employee is the sex offender, but subsection (1)
encompasses much more than that particular instance. For example, subsection
(1) would apply when a public entity is an occupier of real property – like a
school – and provides woefully inadequate security, thereby allowing a predator
to enter the school and commit a sexual crime against a student. In that
circumstance, the acts or omissions of the public entity would have to be
assessed through application of the willful, wanton or grossly negligent
standard. And all the language of subsection (1) has meaning in that
circumstance: the sex crime element would be provided by the outsider's
unlawful act, and the plaintiff would then need to demonstrate the public entity's
willful, wanton or grossly negligent conduct.
Friedman v. Martinez, 242 N.J. 450 (2020) provides another helpful
example. If the public entity is the owner of a building that hires an outside
contractor to provide janitorial services, and a janitor commits a sexual offense
against an individual to whom the public entity owed a duty of care, subsection
(1)'s requirement of a sex crime would have been met by the non-public-
employee offender and the right of the public entity to immunity under
subsection (1) would turn on whether its failure to protect its employees was
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willful, wanton, or grossly negligent. In these examples, there may be no public
employee at fault; the requirement urged by the board – that a plaintiff must
show both the public entity and a public employee engaged in willful, wanton
or grossly negligent conduct – would be insurmountable, and the disabling of
Tort Claims Act immunities in that situation would be illusory. There is nothing
in the statute or its legislative history to suggest the Legislature intended such
an understanding of N.J.S.A. 59:2-1.3(a)(1).
In short, it may be true that when the sex offender is a public employee ,
parts of the statute prove unnecessary to the way in which the statute functions,
but it does not logically follow that we should twist the meaning of the
Legislature's otherwise unambiguous use of the disjunctive to make those
sometime redundant words fit this one instance. As we have shown, there are
other circumstances in which all the words and phrases have meaning and render
perfectly sensible the Legislature's use of the word "or." If we were to adopt the
board's suggested interpretation of N.J.S.A. 59:2-1.3(a)(1) so that it might more
comfortably fit the public-employee-as-sex-offender situation, we would make
more difficult if not insurmountable a plaintiff's pursuit of the remedy provided
in N.J.S.A. 59:2-1.3(a)(1) in all other instances.
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We reject the board's argument. By disabling Tort Claims Act immunities
in sexual misconduct cases, the Legislature undoubtedly intended to make the
plaintiff's pursuit of a remedy realistic rather than illusory.6
Third, as noted earlier, n.3, above, when the Governor signed into law the
original abbreviated version of N.J.S.A. 59:2-1.3(a), he did so with the assurance
from the bill's sponsors that it would introduce and swiftly pass a bill that would
"correct an error" about public entity liability. The Governor viewed the May
2019 version of N.J.S.A. 59:2-1.3(a) as "inadvertently fail[ing] to establish a
standard of proof for cases involving claims filed against public entities" and
that the new bill would "correct this omission by clarifying that public entities
should be held to the same standard of liability that is applied to religious and
nonprofit organizations," with the added comment that "[a]pplying a different
standard would be unjustified." Governor's Statement Upon Signing Senate
Committee Substitute for Senate Bill No. 477 (May 13, 2019).
6
The Legislature understood that this provision would increase the liability of
public entities. The Office of Legislative Services reported to the Legislature
that the bill would "expose the State, school districts, and local units of
government to civil claims" and that there would be an added fiscal impact for,
among other things, "substantial settlements and judgments against affected
governments." Assembly Budget Committee Statement with Committee
Amendments, Assembly Bill No. 5392 (June 17, 2019).
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N.J.S.A. 2A:53A-7 was amended in May 2019 with the other changes to
the laws concerning the claims of sexual offense victims. The amendments to
this statute, however, retained the existing declaration that immunity would not
be granted to religious or nonprofit organizations for damage "caus[ed] . . . by a
willful, wanton or grossly negligent act of commission or omission, including
sexual assault [and] any other crime of a sexual nature." N.J.S.A. 2A:53A-7(c).7
In a slightly different way, this statute describes the state of mind and then
describes the types of acts included rather than, as with N.J.S.A. 59:2-1.3(a)(1),
where the wrongful sexual acts that disable Tort Claims Act immunity are
delineated and then followed by a description of the same necessary state of
mind. The way in which the Legislature described when a religious or nonprofit
organization will not be immune more clearly demonstrates that the standard of
care can be supplied by the sexual offense (as N.J.S.A. 2A:53A-7(c) states, the
standard of care "includ[es]" the sexual offenses described) and does not need
to stand alone or separate from the sexual offense. We are satisfied from the
intent revealed by the Governor's statement and by N.J.S.A. 59:2-1.3(a)(1) itself,
that when the wrongful state of mind is provided by the public employee's sexual
7
N.J.S.A. 2A:53A-7(c) was amended to include within this description of
triggering sexual offenses, the prohibited sexual act defined in N.J.S.A. 2A:30B-
2, and sexual abuse as defined in N.J.S.A. 2A:61B-1.
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offense, there is no need for a plaintiff to establish that the public entity also
engaged in willful, wanton or grossly negligent conduct.
Fourth, subsection (2) of N.J.S.A. 59:2-1.3(a) further reveals that the
Legislature did not seek to create such a high bar to the disabling of Tort Claims
Act immunities for public entities in subsection (1). When considering the
disabling of immunities in a claim against a public entity – regardless of whether
the crime was committed by a public employee – arising from the public entity's
hiring, supervision or retention of any public employee, the Legislature imposed
on the public entity only a simple negligence standard. This seems wholly
inconsistent with the interpretation of subsection (1) offered by the board that
both the involved public employee and the public entity must be found to have
engaged in willful, wanton or grossly negligent conduct to disable their
immunities. The Legislature did not impose that high standard on public entities
in subsection (2), a fact that strongly suggests the Legislature had no intention
to impose that standard in all situations to which subsection (1) would apply as
the board's argument that "or" be viewed as "and" in subsection (1) would
require.
In the final analysis, our decisions rests on the well-established precept
that statutes must be interpreted to "discern and effectuate" the legislative intent.
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Murray v. Plainfield Rescue Squad, 210 N.J. 581, 592 (2012). This requires
consideration of the statute's plain language, which is best understood when the
words used are given "their ordinary meaning and significance." DiProspero v.
Penn, 183 N.J. 477, 492 (2005). We conclude that while, in some instances, a
portion of N.J.S.A. 59:2-1.3(a)(1) may be redundant, the entire provision – when
understood in light of the various types of situations in which it will apply –
sensibly and reasonably imposes an obligation on a plaintiff to show the "willful,
wanton or grossly negligent" conduct of only the public entity "or" public
employee, but not both – just as the statute expressly declares. We assume that
the Legislature intended that courts would interpret the word "or" appearing in
subsection (1) as meaning "or."
III
In permitting this interlocutory appeal we not only sought to determine
the scope of N.J.S.A. 59:2-1.3(a)(1), but also whether N.J.S.A. 59:2-10 and
N.J.S.A. 59:9-2(d) should be understood to be immunities, which would render
them inapplicable, or merely as limitations of liability, which would still apply
to claims like this.
The word "immunity" is not defined by the Tort Claims Act, and N.J.S.A.
59:2-1.3(a) does not specify what provisions of the Tort Claims Act it intended
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to disable. N.J.S.A. 59:2-1.3(a)(1) states only that the "immunity from civil
liability" provided by the Tort Claims Act would not apply in cases in which a
sexual assault or other sexual crime formed the basis for the complaint.
Nevertheless, we proceed by assuming the phrase "immunity from civil liability"
was intended by the Legislature to mean exactly what it suggests: an "exemption
from a duty [or] liability." Black's Law Dictionary 898 (11th Ed. 2019). This
view comports not only with common usage and dictionary definitions but also
with how the word "immunity" has been historically understood by courts. See
McDonald v. City of Chicago, 561 U.S. 742, 813-15 (2010).
Since an immunity is an exemption from liability, and not a limitation of
liability, we examine the two provisions of the Tort Claims Act that the board
claims are not immunities. We conclude that N.J.S.A. 59:2-10 is an immunity
but N.J.S.A. 59:9-2(d) is not.
The board's argument about N.J.S.A. 59:2-10 has no merit. The board
relies heavily if not exclusively on the statute's label – "Public employee conduct
– Limitation on entity liability" (emphasis added) – but this argument exalts
form over substance. We are instead persuaded by the statute's text: "A public
entity is not liable for the acts or omissions of a public employee constituting a
crime, actual fraud, actual malice, or willful misconduct." Ibid. (emphasis
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added). This statute does not express when a public entity will be liable for the
wrongful conduct of its employee or to what extent; it states, without exception,
that a public entity will not be held liable for, among other things, an employee's
crimes. To hold that N.J.S.A. 59:2-10 remains applicable in those cases in which
N.J.S.A. 59:2-1.3(a)(1) also applies would leave in place the very obstacle the
Legislature intended to remove. We cannot imagine the Legislature intended
such a result.
On the other hand, we agree with the board that N.J.S.A. 59:9-2(d) is not
an immunity but only a limitation on liability since it states that "[n]o damages
shall be awarded against a public entity or public employee for pain and
suffering resulting from an injury" with the added proviso that
this limitation on the recovery of damages for pain and
suffering shall not apply in cases of permanent loss of
a bodily function, permanent disfigurement or
dismemberment where the medical treatment expenses
are in excess of $3,600.00.
[Emphasis added.]
By its very language N.J.S.A. 59:9-2(d) does not purport to free a public entity
from liability. It instead limits the damages that may be awarded once a public
entity is held liable by precluding damages for pain and suffering unless certain
circumstances are met. Because this verbal threshold only impacts the award
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that may result from a claim and not whether the claim may be maintained
against the public entity, we reject the argument that N.J.S.A. 59:9 -2(d) is an
immunity.
IV
The judge incorrectly determined that N.J.S.A. 59:9-2(d) is an immunity
but he also alternatively found plaintiffs provided sufficient evidence of a
permanent injury to hurdle the verbal threshold. That alternate disposition
prompted the parties to argue here about how the verbal threshold impacts this
case. They also argue whether the board can be held vicariously liable in these
circumstances; the board claims the trial judge should have followed the
reasoning of Davis v. Devereaux Found., 209 N.J. 269 (2012), and plaintiffs
assert the judge properly applied the principles announced in Hardwicke v. Am.
Boychoir Sch., 188 N.J. 69 (2006).
Although our order did not limit the scope of the arguments the parties
could present in this interlocutory appeal, our intention in granting leave to
appeal was to resolve the novel questions about the meaning and impact of
N.J.S.A. 59:2-1.3(a) in cases like this and whether N.J.S.A. 59:2-10 and
N.J.S.A. 59:9-2(d) are immunities or limitations of liability. Having resolved
the statutory interpretation issues, we decline at this time to consider the
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remaining issues about how our interpretation will impact this claim. In so
holding, we acknowledge that the parties retain the right to seek appellate review
of those other issues on entry of a final judgment in the trial court.
***
We lastly observe that the board's arguments were not entirely implausible
and N.J.S.A. 59:2-1.3(a) could have been drawn with greater precision. We take
comfort in the knowledge that if we have misconstrued its intent, the Legislature
has the power to clarify its intent by amendatory enactments. See Plastic Surgery
Ctr., PA. v. Malouf Chevrolet-Cadillac, Inc., 241 N.J. 112, 113 (2020).
Nevertheless, having carefully considered the parties' arguments, we conclude
that:
• N.J.S.A. 59:2-1.3(a)(1) was intended to deprive
public entities of their Tort Claims Act
immunities when the sexual misconduct suffered
by the plaintiff was caused by a willful, wanton
or grossly negligent act of the public entity or
public employee, as the statute expressly states;
• N.J.S.A. 59:2-10 is a Tort Claims Act immunity
that is disabled in cases like this by N.J.S.A.
59:2-1.3(a)(1); and
• N.J.S.A. 59:9-2(d) is not a Tort Claims Act
immunity and remains applicable in cases like
this.
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We also exercise our discretion in choosing not to consider now either the
viability of plaintiffs' claim that the board may be held vicariously liable or the
impact of N.J.S.A. 59:9-2(d) on plaintiffs' claim; we leave those issues to further
development in the trial court.
We affirm the denial of the board's summary judgment motion and remand
for further proceedings. We do not retain jurisdiction.
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