B.F. v. TOWNSHIP OF HAZLET

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

B.F.,

Plaintiff-Appellant,

v.

TOWNSHIP OF HAZLET, HAZLET

BOARD OF EDUCATION, its members

individually, THE RUGBY SCHOOL

AT WOODFIELD, BRANDI SHROYER,

individually and in her official

capacity, JAIME ROGERS, individually

and in her official capacity, GLENN

HELFRICH, individually and in his

official capacity, and R. HELFRICH

& SON,

Defendants-Respondents,

and

RALPH RUSSO,

Third-Party Defendant/Respondent,

and

DELORES DESANTO, individually

and in her official capacity,

ANTHONY ACQUILINO, individually

and in his official capacity,

and ADAM AVELIS, individually

and in his official capacity,

Defendants.

_________________________________________________

December 14, 2016

Submitted September 27, 2016 Decided

Before Judges Messano, Espinosa and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2625-12.

The Maglione Firm, P.C., attorneys for appellant (Dean R. Maglione, of counsel; Lora B. Glick, on the brief).

Margolis Edelstein, attorneys for respondent The Hazlet Board of Education (Peter S. Cuddihy, on the brief).

Cruser, Mitchell & Sanchez, L.L.C., attorneys for respondents Jaime Rogers, Glenn Helfrich and R. Helfrich & Son (Douglas V. Sanchez, of counsel and on the brief; Michael S. Williams, on the brief).

Respondents The Rugby School at Woodfield, Brandi Shroyer and Ralph Russo have not filed briefs.

PER CURIAM

In 2009, plaintiff B.F. was a sixteen-year-old student in the Hazlet school district. As part of plaintiff's independent educational plan (IEP), designed to address his special needs, the Hazlet Board of Education (the Board) placed plaintiff in The Rugby School at Woodfield (the School), where defendant Brandi Shroyer was employed as a teacher's aide and counselor. The IEP also included the Board's obligation to provide transportation of plaintiff to and from the School. Defendant R. Helfrich & Son's Bus Company, a privately-owned transportation company, and its principal, defendant Glenn Helfrich, contracted with the Board to transport plaintiff and other students to the School. Defendant Jaime Rogers worked as one of the company's bus drivers.1

In May 2009, after weeks of inappropriate conversations and text messages, plaintiff and Shroyer commenced a sexual relationship that continued for several weeks. Eventually, Rogers became aware and told her supervisors, who in turn notified the School. Shroyer was eventually arrested and prosecuted. Plaintiff alleged that as a result of the sexual abuse, he suffered extreme anxiety, depression and behavioral changes that led to his psychiatric hospitalization.

In June 2012, plaintiff filed suit against the Board, Shroyer, the School and three of its directors and employees (collectively, the Rugby defendants). Plaintiff filed an amended complaint that added Helfrich as a defendant, and, on December 20, 2013, plaintiff moved to file a second amended complaint alleging: assault and battery by Shroyer (count one); negligence by the Board (count two); age and gender discrimination pursuant to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, against the Board, the Rugby defendants and Helfrich (Count Three); negligence against the Rugby defendants and Helfrich, claiming they stood in loco parentis to plaintiff (count four); negligent supervision and training against the Board and the Rugby defendants as to Shroyer (count five); intentional infliction of emotional distress (IIED) (count six), and negligent infliction of emotional distress (NIED) (count seven), against all defendants.

The Board filed an answer generally denying plaintiff's allegations, and asserting, among other things, that plaintiff's negligence claims were barred by the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. In lieu of filing an answer, Helfrich moved to dismiss the complaint for failure to state a claim.2 R. 4:6-2(e). In support, Helfrich furnished a copy of plaintiff's deposition.

Plaintiff filed opposition, as did the Board, which essentially argued the motion was premature. During oral argument, the judge recognized the motion had been transformed into one seeking summary judgment. See R. 4:6-2 ("If, on a motion to dismiss based on [subsection (e)], matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by [Rule] 4:46 . . . ."). The judge reserved decision.

In a written statement of reasons that accompanied his March 21, 2014 order (the 2014 order), the judge concluded plaintiff failed to plead any facts demonstrating Helfrich violated the LAD.3 He also determined Helfrich was not acting in loco parentis while transporting plaintiff. Nonetheless, the judge noted Helfrich may have had a statutory duty to report Shroyer's abuse, stating, "[g]iven the possible statutory duty" to report child abuse or neglect pursuant to N.J.S.A. 9:6-8.10, "failure to follow said law could then be grounds for tortfeasor liability under a common law negligence claim." The judge denied the motion as to plaintiff's NIED and IIED claims.4

Discovery ensued, and Helfrich subsequently moved for summary judgment, the Board cross-moved for summary judgment and plaintiff opposed the motions and cross-moved for reconsideration of the 2014 order as to Helfrich.5 The judge again considered oral argument and reserved decision. His May 8, 2015 orders (the 2015 orders) granted summary judgment to the Board and Helfrich and denied plaintiff's motion for reconsideration. This appeal followed.

Plaintiff argues the judge erroneously determined Helfrich was not acting in loco parentis, and his motion for reconsideration should have been granted because Helfrich's employees qualify as "school personnel" under New Jersey law and on public policy grounds, and the judge's decision was "premature." Plaintiff further argues the judge wrongly applied summary judgment standards, and the record contained sufficient evidence of Helfrich's negligence, because its drivers never received proper training and failed to report the sexual abuse for more than two weeks. Plaintiff further contends the Board was vicariously liable for Helfrich's negligence, based on the Board's non-delegable duty to protect its students, the doctrine of apparent authority and "master-servant-subservant theory." Lastly, plaintiff asserts the judge wrongly dismissed his LAD claim against the Board, and his IIED claim against Helfrich and the Board.6

We have considered these arguments in light of the record and applicable legal standards. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I.

We first consider whether plaintiff's cross-motion for reconsideration should have been granted, and if so, whether the judge's interlocutory order dismissing all of plaintiff's claims against Helfrich, except for the IIED and NIED counts, was appropriate. Although plaintiff's application sought relief under Rule 4:49-2, that rule only applies to final orders or judgments. Rusak v. Ryan Auto., L.L.C., 418 N.J. Super. 107, 117 n.5 (App. Div. 2011).

The 2014 order did not dispose of all claims against Helfrich, much less claims against other defendants. As a result, it was "subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice." R. 4:42-2; see also Lombardi v. Masso, 207 N.J. 517, 535-36 (2011) (explaining that even orders granting complete summary judgment to a party are interlocutory and subject to revision until the litigation is final as to all parties). The evidence in support of such a motion need not be "newly discovered," nor is the judge "constrained . . . by the original record." Id. at 537. We briefly summarize the motion record that was before the court in May 2015 in a light most favorable to plaintiff. R. 4:46-2(c); Bhagat v. Bhagat, 217 N.J. 22, 38 (2014).

Plaintiff testified in deposition that he and Shroyer began to exchange personal text messages in April 2009, and he would try to be assigned after-school detention, which Shroyer oversaw. Shroyer was also responsible for driving student detainees home and did so in plaintiff's case. The texts became more intimate, and in late May, plaintiff sent a message that he wanted to visit Shroyer at her home. She picked him up at the train station, brought him to her home, and they had sexual intercourse. Plaintiff said that Rogers asked about his relationship with Shroyer, and plaintiff told her that he and Shroyer were "seeing each other." About two weeks later, Rogers notified school authorities.

Rogers stated that she began working for Helfrich in October 2008 and had no prior experience transporting students. She received no training other than that required to operate the bus and obtain a commercial driver's license. On May 28, 2009, Rogers witnessed plaintiff having a conversation with Shroyer, and heard her tell plaintiff, "I'll text you." Rogers overheard plaintiff's conversation with a fellow student, essentially bragging about his relationship with Shroyer. On June 2, she observed a "hickey" on plaintiff's neck, which plaintiff said Shroyer had given to him the night before at her house. The next day, Rogers spoke directly to Glenn Helfrich, who indicated he was unsure what to do. On June 5, Helfrich told Rogers he was waiting for the School to return his call. According to Rogers, on Monday, June 8, plaintiff said he had spent the weekend with Shroyer.

Rogers never received any policies or procedures from the Board or Helfrich regarding the use of cell phones between students and teachers, nor did she receive any specific training regarding the reporting of incidents of violence or abuse against children.

Glenn Helfrich testified at deposition that his company contracted directly with the Board. Neither the Board nor the School provided any information pertaining to the transport of special needs children, or any training "regarding witnessing and/or reporting of incidents of violence, abuse, bullying, intimidation, harassment, or sexual harassment against students[.]" Each school district, however, provided Helfrich with its specific anti-bullying policy. Contrary to Rogers' testimony, Helfrich stated that he trained his employees to file an incident report any time they witnessed harassment or misbehavior by students, or "anything to do with safety or violence . . . ." Helfrich further testified he never spoke to anyone from the Board about the incident, but he contacted the School within twenty-four hours of speaking with Rogers. He was told by the School's director that law enforcement had been contacted, and an investigation was underway. The School reported the incident to law enforcement on June 11.

Plaintiff's liability expert, Bruce Rothenberg, an "[e]ducational [c]onsultant," opined in his report that the Board, the School and Helfrich were palpably negligent in their obligation to "provide a safe and secure environment which would have prevented multiple sexual assaults of [plaintiff], by . . . [Shroyer], from occurring." Rothenberg determined the Board was palpably negligent: (1) in its failure to meet its responsibility to provide transportation to plaintiff; and (2) in failing to ensure that Helfrich, as the Board's contracted agent, was in compliance with all regulations, including the appropriate training of their drivers. Rothenberg stated that Helfrich was palpably negligent in its failure to train their drivers to recognize, document and report evidence of child abuse.

Richard L. Farber, the School's liability expert, opined in his report that Helfrich, the Board and plaintiff's step-father, who admittedly was told by plaintiff about the relationship, but chose not to believe his stepson, were grossly negligent. Farber stated the Board failed to "inform and guide" Helfrich about "the nature of special needs children, harassment, bullying and intimidation . . . state mandates/procedures" and failed to convey this information to its drivers. As to Helfrich, Farber concluded the company and its drivers were untrained and failed to act in a timely manner when they became aware of plaintiff's relationship with Shroyer.

Plaintiff's motion for reconsideration of the 2014 order confusingly sought review of the judge's earlier determination that Helfrich could not, as a matter of law, be in loco parentis to plaintiff. However, during oral argument, plaintiff's counsel made clear that she was asking the judge to review his earlier ruling dismissing all claims of negligence against Helfrich, except for the NIED claim.

The judge should have reconsidered plaintiff's claim for common law negligence against Helfrich. When the judge entered the 2014 order, the record only included plaintiff's deposition. When the motions for summary judgment were filed, and plaintiff cross-moved for reconsideration, the record, as noted, was extensive. In his written statement of reasons that accompanied the 2015 orders, the judge only stated that plaintiff "cited no new case law to question" the prior "legal determination" that Helfrich did not stand in loco parentis to plaintiff. The judge failed to address his earlier recognition that Helfrich might have owed a duty pursuant to N.J.S.A. 9:6-8.10 to report Shroyer's conduct, and a breach of that duty might support plaintiff's common law negligence claim.

In reviewing a grant of summary judgment, we apply the same standard as the trial court. Bhagat, supra, 217 N.J. at 38. We first determine whether the moving party demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006).

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]

We then decide "whether the motion judge's application of the law was correct." Atl. Mut., supra, 387 N.J. Super. at 231. We review issues of law de novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

We are constrained to reverse the orders that collectively dismissed plaintiff's common law negligence claim against Helfrich. Plaintiff contends that Helfrich breached a duty to timely report Stroyer's sexual abuse. He cites as evidence of this duty various regulatory and statutory provisions. Indeed, violations of legislative and regulatory standards of conduct intended to protect certain members of the public may not necessarily give rise to private causes of action, but such a violation might be evidence of negligence. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 361 (2016).

Relevant to this case, transportation to and from school is a "related service" required to be provided by the Individuals with Disabilities Education Act (the IDEA), 20 U.S.C.A. 1401. 34 C.F.R. 300.34(c)(16). New Jersey requires school districts to provide transportation services to their special needs students. N.J.A.C. 6A:27-5.1(a). Local districts are permitted to contract with private companies to provide all necessary transportation, N.J.A.C. 6A:27-9.1(a), and every employer is required to "ensure that all school bus drivers . . . are properly trained for the functions of their positions." N.J.A.C. 6A:27-11.3(a). "At a minimum, the training shall include . . . [s]tudent management and discipline." N.J.A.C. 6A:27-11.3(b)(1).

N.J.S.A. 9:6-8.10 requires "[a]ny person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse [to] report the same immediately to the Division of Child Protection and Permanency by telephone or otherwise." The failure to make a timely report under N.J.S.A. 9:6-8.10 could constitute evidence of negligence. J.S. v. R.T.H., 155 N.J. 330, 349 (1998).

Viewed through the appropriate summary judgment prism, the motion record revealed that Helfrich failed to train its employees regarding the obligations imposed by regulation upon all school bus drivers in New Jersey, as well as the statutory duty to report child abuse. Its employee, Rogers, was arguably aware of Shroyer's sexual abuse of plaintiff for several days or weeks before reporting it to her superiors. Despite that knowledge, the company collectively failed to immediately report Shroyer's conduct to school officials and the appropriate authorities. Without commenting on the ultimate merits of the claim, we are constrained to reverse the grant of summary judgment to Helfrich on count four of plaintiff's complaint alleging negligence.

For the sake of completeness, we note our agreement with the judge's conclusion that Helfrich was never in loco parentis to plaintiff and reject plaintiff's reassertion of this argument on appeal. The Court has said,

In loco parentis literally translated means "in the place of a parent." Black's Law Dictionary 803 (8th ed. 2004). Black's Law Dictionary further describes the phrase as "relating to, or acting as a temporary guardian or caregiver of a child, taking on all or some of the responsibilities of a parent." Ibid. Typically, the in loco parentis relationship is temporary in nature, Miller v. Miller, 97 N.J. 154, 162 (1984) (quoting A.S. v. B.S., 139 N.J. Super. 366, 369-70 (Ch. Div. 1976), aff'd, 150 N.J. Super. 122 (App. Div. 1977)), and "is reserved for individuals who function as a parent." Dale v. Boy Scouts of Am., 160 N.J. 562, 602 (1999), rev'd on other grounds, 530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000). "Characteristics of that relationship include 'the responsibility to maintain, rear and educate the child,' as well as the duties of 'supervision, care and rehabilitation.'" Ibid. (citations omitted).

[Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 91 (2006).]

Helfrich undertook none of the responsibilities of a surrogate parent, Frugis v. Bracigliano, 177 N.J. 250, 268 (2003), but rather only accepted the responsibility to safely transport students to and from school. More importantly, even when a defendant is in loco parentis to a plaintiff, the Court has rejected some heightened standard of care and applied "traditional principles of due care and foreseeability." Davis v. Devereux Found., 209 N.J. 269, 289 (2012).

II.

In granting summary judgment to the Board, the judge never squarely addressed the second count of the complaint alleging negligence. Instead, in the context of plaintiff's NIED claim, the judge rejected plaintiff's assertions of negligent training and statutory and regulatory violations and said "[p]laintiff's sexual assault was not reasonably foreseeable . . . ."

Before us, citing the same legislative and regulatory provisions already noted, plaintiff contends the Board violated his IEP because it failed to provide transportation when he was assigned after school detention, thereby leading to the inappropriate relationship he struck up with Shroyer, who, on occasion, drove him home. Plaintiff also argues the Board had a non-delegable duty to ensure that Helfrich personnel were properly trained to transport special needs children and contends that the Board may be held liable under the doctrine of "apparent authority" or "master-servant-subservant theory." The Board argues the judge correctly decided Shroyer's criminal conduct was unforeseeable; these alternative theories of liability were never presented to the trial court; and Rothenberg's report was a net opinion.

Initially, we reject the Board's assertion that the expert's report was a net opinion. "The net opinion rule . . . mandates that experts 'be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable.'" Townsend v. Pierre, 221 N.J. 36, 55 (2015) (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)).

Rothenberg explained the relevant statutory and regulatory provisions, and his report adequately set forth the numerous factual reports and depositions he reviewed. He expressed two bases for his opinion that the Board was negligent. First, Rothenberg said the Board failed to provide transportation as required by plaintiff's IEP, because it provided no bus service after plaintiff's detention. As a result, plaintiff found himself in Shroyer's car as opposed to Helfrich's bus. We fail to see how that violates any of the Board's statutory or regulatory duties. "A party's burden of proof on an element of a claim may not be satisfied by an expert opinion that is unsupported by the factual record or by an expert's speculation that contradicts that record." Ibid. To the extent the judge saw this allegation of negligence as an issue of foreseeability, we would agree. In other words, the Board's duty to provide transportation was not breached when alternate transportation was arranged by the school.

However, Rothenberg also opined the Board was negligent for "failing to insure that Helfrich . . . was in compliance with all regulations, including the appropriate training of their drivers . . . as per IDEA guidelines" to identify "evidence of abuse, to document that evidence and to report those incidents to law enforcement authorities." He cited Rogers' testimony that she was never trained and did not know how or to whom she should make a report.

During her argument in the Law Division, plaintiff's counsel never claimed that Helfrich was the Board's servant or acted with apparent authority. We therefore do not consider these points on appeal. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).

Although she did not describe the duty as "nondelegable," plaintiff's counsel did contend that the Board had a duty to provide transportation pursuant to the IDEA and New Jersey statutes and regulation, and that duty included an obligation to ensure that Helfrich's employees were properly trained. The Board argued it met its obligation to provide transportation by hiring Helfrich, and, citing material not in the record, the Board claimed it and Helfrich had policies and procedures in place to address issues of violence and student behavior. The judge did not specifically decide the argument, since he concluded, apparently, that the Board could not be liable because Shroyer's conduct was not foreseeable.

Before us, plaintiff recognizes the general proposition that one who hires an independent contractor is not liable for the contractor's own negligence in the performance of its duties. "The immunity granted to a principal who hires an independent contractor rests on the distinction between an independent contractor and an employee." Basil v. Wolf, 193 N.J. 38, 62 (2007).

"Liability may be imputed to a principal for the actions of independent contractors: (1) where the principal retains control of the manner and means of doing the work that is the subject of the contract; (2) where the principal engages an incompetent contractor; or (3) where the activity constitutes a nuisance per se." Id. at 63 (citing Majestic Realty Assocs., Inc. v. Toti Contracting Co., 30 N.J. 425, 431 (1959)). Plaintiff contends a variation of this last exception applies, i.e., the Board's duty to plaintiff was non-delegable because transportation of special needs children "presents a significant risk of grave harm." See, e.g., Baboghlian v. Swift Elec. Supply Co., 197 N.J. 509, 519 (2009) ("Our courts have imposed nondelegable duties in other instances in which the potential for grave harm was involved.") (citations omitted).7

We have also recognized that "[t]he primary reason for imposing a nondelegable duty on the principal is that the duty is of extraordinary importance to the public." Great N. Ins. Co. v. Leontarakis, 387 N.J. Super. 583, 592 (App. Div. 2006) (citations omitted). The overriding public policy supporting imposition of a non-delegable duty may be expressed in applicable legislation. Id. at 591.

For example, in Great Northern, we concluded that, pursuant to statute, when conducting excavation on his property, a landowner owed a non-delegable duty to an adjacent property owner to support a wall previously constructed on the property line. Id. at 592-94. In DeMary v. Rieker, 302 N.J. Super. 208, 221-22 (App. Div. 1997), we concluded that a finance company had a non-delegable duty pursuant to statute to repossess a car without a breach of the peace.

In Marek v. Professional Health Services, Inc., 179 N.J. Super. 433 (App. Div. 1981), we found a non-delegable duty, even in the absence of a statute. There, we held that the defendant health care entity owed a non-delegable duty to its patient, and the engagement of an independent contractor to read the patient's x-ray "created no insulation against liability for that independent contractor's negligence." Id. at 435. The result was particularly appropriate since "[t]he very work" the plaintiff contracted for "was negligently performed," and he neither knew of the subcontractor nor "had any choice in selecting" him. Id. at 441.

As already noted, the regulations regarding the transportation of students, including special needs students, anticipate adequate training on the part of bus drivers to be alert to and report instances of possible abuse. These obligations are imposed regardless of whether the school board or an independent contractor is the driver's "employer." In addition, the Court has recognized the pervasive responsibility shared by all citizens to prevent child abuse and the duty imposed by statute to make a report upon reasonable cause to believe abuse has occurred. J.S., supra, 155 N.J. at 342-346; N.J.S.A. 9:6-8.10.

Our independent research reveals at least one circuit has rejected a claim that, because the public entity retains ultimate responsibility to provide ancillary transportation services under the IDEA, it was liable under 42 U.S.C.A. 1983 for the negligence of its independent contractor. Santiago v. Puerto Rico, 655 F.3d 61, 71-72 (1st Cir. 2011). To the contrary however, in Seiwert v. Spencer-Owen Community School Corp., 497 F. Supp. 2d 942, 956 (S.D. Ind. 2007), the court found a school board may be liable for common law negligent supervision where the state statute "placed transportation of school children within the hands of the School Corporation." The court reasoned the "legislature must have intended for transportation to be a non-delegable duty 'so important to the community that the principal should not be permitted to transfer these duties to another.'" Ibid.

Based upon the motion record at the time, there were disputed facts as to whether Helfrich trained its personnel, and whether the Board took any action to ensure that Helfrich's drivers were properly trained. As noted above, those disputed facts foreclosed summary judgment as to Helfrich. Whether the Board is liable for Helfrich's failure depends upon whether it could delegate its statutory and regulatory duties to an independent contractor to fulfill, or whether those duties were nondelegable.

It is common knowledge that public entities use private contractors to transport school students, and the practice in New Jersey is pervasive. The record before the motion judge was sparse, and plaintiff's articulation of the argument was obtuse. The failure on appeal to have included participation of affected non-governmental organizations intimately involved with public education in New Jersey further heightens our reluctance to hold that school boards have a nondelegable duty in this regard. As a court of intermediate appellate jurisdiction, we do not presume to impose significant fiscal responsibility upon public bodies in the absence of direction from the Supreme Court or the Legislature. See, e.g., Riley v. Keenan, 406 N.J. Super. 281, 297 (App. Div.) (noting an appellate court "should normally defer to the Supreme Court . . . with respect to the creation of a new cause of action") (citing Tynan v. Curzi, 332 N.J. Super. 267, 277 (App. Div. 2000)), certif. denied, 200 N.J. 207 (2009). We therefore affirm the grant of summary judgment to the Board.

III.

Lastly, we affirm the judge's decision granting the Board summary judgment on plaintiff's LAD claim, and the Board and Helfrich summary judgment on plaintiff's IIED claim. Simply put, the arguments plaintiff makes lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part; reversed in part and remanded. We do not retain jurisdiction.

1 For the balance of our opinion, except as necessary to identify individual defendants, we refer to the company, Glenn Helfrich and Rogers collectively as "Helfrich."

2 We need not set out the procedural history which led to the judge's consideration of Helfrich's motion without first granting plaintiff's motion to file an amended complaint. The judge clearly articulated that, for purposes of deciding the motion to dismiss, he was treating the second amended complaint as having already been filed.

3 Although count five, alleging negligent supervision and training, only named the Board and the Rugby School as defendants, the judge also determined Helfrich had no duty to properly train or supervise Shroyer.

4 The judge's order did not specify the particular counts that were dismissed, although the written statement of reasons clearly indicated only counts six and seven remained extant.

5 Because plaintiff settled his claims against Shroyer and the Rugby defendants, we do not address any issues raised by their motion for summary judgment.

6 Plaintiff has not challenged dismissal of the separately-pled NIED count against the Board and Helfrich. An issue not briefed is deemed waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011).

7 Plaintiff has not asserted and the record does not support a conclusion that the Board either knew or should have known that Helfrich was "incompetent."