The opinion of the court was delivered by
This appeal and cross-appeal are from the several grants of summary judgment that resulted in the dismissal of all claims against all defendants. We affirm.
On February 7,1992, plaintiff filed a complaint seeking damages for injuries he suffered as a result of his being shot. Specifically, he alleged that defendant, Police Lieutenant, J.W. Corney and his employer, Township of Pennsauken, violated a special duty of care they owed to him because of Corney’s alleged insufficient training
On November 10, 1993, Klapproth filed a motion for summary judgment which was argued on December 17, 1993. The motion was granted. We denied plaintiffs motion for leave to appeal, and the Supreme Court denied certification.
On February 15, 1995, Merchantville moved for summary judgment. This motion was granted. Plaintiff then, on March 20, 1995, moved for reconsideration of the 1993 order granting Klapproth summary judgment. This was denied. On March 31,1995, a summary judgment motion brought by Pennsauken and Corney was denied. Subsequently, plaintiff moved for reconsideration as to Merchantville. This was denied on April 28,1995. On July 14, 1995, Pennsauken and Comey’s second motion for summary judgment was denied.
On August 7,1995, plaintiff moved for summary judgment as to all remaining defendants, and Pennsauken and Corney filed a cross-motion for summary judgment. Argument on the motions was held on September 11, 12 and 13, 1995, at the conclusion of which Pennsauken and Comey’s motion was granted. On October 20, 1995, plaintiffs motion for reconsideration with respect to Pennsauken and Corney was denied. Plaintiff sought leave to appeal with respect to this order for summary judgment, which was denied on December 8, 1995. A proof hearing was held, and on November 14, 1996, judgment was entered against Wirtz for damages in the amount of $2,348,307.96.
The relevant facts begin on January 11, 1990, when Officers John Seeley and Bruce Bianchi of the Merchantville Police Department observed David Wirtz walking erratically in the street two feet from the curb. They had contact with Wirtz before and were aware that he exhibited erratic behavior. The officers told Wirtz to stop walking in the street, but shortly thereafter, they observed him continuing to walk in the street. Seeley told Wirtz to approach the vehicle and produce identification. Wirtz did this without incident. Seeley then conducted a pat-down search of Wirtz because he observed that Wirtz’s pockets were bulging. Wirtz removed a four to five inch screwdriver from his pocket. Stepping back in a defensive position, he raised the screwdriver in a threatening manner, moving his arm up and down. According to Seeley, Wirtz was “raving,” saying, “I’m not going to be touched by any faggot cops---- If they do, I’ll kill them.” Wirtz also threatened to Mil Lieutenant Silvеrs, Ms former father-in-law, who, he claimed, had broken up Ms marriage. Wirtz asked if he was under arrest and then ran from the police, who were unable to find him.
The officers filed simple assault and resisting arrest charges against Wirtz. On February 5, 1990, two summonses ordering Wirtz to appear on March 5, 1990 in the Merchantville Mumcipal Court to answer the charges were issued.
On February 7, 1990, at approximately 5:30 p.m., a Merchant-ville patrol officer observed Wirtz walking on the street. He contacted Ms department and was instructed to proceed against Wirtz. When he called to Wirtz, Wirtz screamed “stay away from me” and ran towards Ms boarding house in Pennsauken, wMch was just across the border from Merchantville. The officer followed him and discovered that Wirtz had locked himself in his apartment. He refused to open the door and screamed repeatedly that the officer should go away and that he had been raped by various individuals, including the police.
Whitmore and Cox told Corney that it was the judge’s desire that Wirtz be arrested. However, Corney told them he was not inclined to do so because of Wirtz’s mental state. He suggested the summons should be thrown under the door. He did not believe Wirtz posed a threat to anybody, including himself. Corney repeated this to his captain, who arrived at the scene. He told the captain: “[I]f they want to get a warrant and bring a warrant over, got a new ball game. Got a summons, I’m not bringing him in____” Whitmore, Cox and Corney then agreed to wait until the crisis worker arrived.
Plaintiff, certified by the State Division of Mental Health as a crisis intervention specialist, had previously instructed both Merchantville and Pennsauken police in handling crisis situations. He, together with another crisis worker, Paul Snyder, arrived at the scеne and Corney explained what had happened. According to Corney, he told them that Merchantville had a summons for Wirtz and that it was impossible to communicate with Wirtz because he kept claiming everyone was trying to rape him. Plaintiff claims he was told that there was an outstanding warrant for Wirtz’s arrest. Plaintiff told Corney that because Wirtz had threatened a police officer, Wirtz needed to be taken into custody and evaluated, which could be done after Wirtz was taken to jail. Plaintiff attempted to speak with Wirtz, but Wirtz kept repeating
Comey checked with other residents of the boarding house and was told that Wirtz was sometimes seen with a knife in his possession, but that he had not been seen with a knife that day. Comey obtained a key to Wirtz’s room from the landlord, and the officers and plaintiff then planned the strategy they would use to apprehend Wirtz. Comey said they would need some sort of protection, and plaintiff suggested using a rolled-up rug, which plaintiff said he had used several times in subduing individuals. Corney agreed to enter the room and if there was a problem, plaintiff could throw the mg on Wirtz.
Corney unlocked the door and it opened only a short distance because there was a chain on the door. Plaintiff told Corney to step aside, and plaintiff forced the door open. As Comey and plaintiff entered the darkened room, Wirtz fired a .22 caliber rifle he had stolen from the Klapproth house. The bullet struck plaintiff, exited through his back, and then stmck another officer. Wirtz was eventually apprehended.
I
In arguing it was error to grant Pennsauken and Comey summary judgment, plaintiff maintains that immunity under N.J.S.A. 59:5-2b(3) is not applicable because Pennsauken and Corney did not offer evidence that an arrest was intended. In the alternative, plaintiff claims summary judgment was inappropriate because there is a factual dispute as to whether an arrest was intended.
We are satisfied that Pennsauken and Comey are entitled to immunity under N.J.SA 59:5 — 2b(2) and (3), because Wirtz was
(1) an escaping or escaped prisoner;
(2) an escaping or escaped person; or
(3) a person resisting arrest; or
(4) a prisoner to any other prisoner.
Because Wirtz was not a prisoner, b(l) and b(4) are not applicable. Pennsauken and Corney are, however, entitled to immunity under b(2) and b(S).
In granting summary judgment to Pennsauken and Corney, the judge addressed the issue of whether an arrest was intended for purposes of the resisting arrest immunity under N.J.S.A 59:5-2b(3):
This Court must look at the acts and the actions as to what was transpiring at the time of the event rather than the language that was used by an of the individuals at the time of the event.
Recognizing the situation where they first attempted to talk Mr. Wirtz into coming out from the room where he had barricaded himself and then decided to break down the door and forcibly take him into custody and restrain his freedom, it is this Court’s determination that that language and those actions equal the actions anticipated by the legislature when they use the term a person resisting arrest.
Mr. Wirtz obviously was resisting being taken into custody. When the police authorities take one’s physical being intо custody and restrain that physical being from utilizing his freedom, that is an arrest. No matter what the police officer might call it, it’s an arrest.
Plaintiff contends that Pennsauken and Corney were not entitled to summary judgment because they did not specifically plead immunity under section 5-2b(3). The burden is on the public entity to plead and prove its immunity under the Act. Kolitch v. Lindedahl, 100 N.J. 485, 497,
In Tice v. Cramer, 133 N.J. 347, 356,
The possible distinctions between an escaping prisoner, an escaping person, or simply a person eluding an officer do not bear sufficient relationship to the purposes of immunity to warrant attributing such an intent to the Legislature when none is even hinted. To the extent that the section is viewed in the context of police pursuit, the anomaly of such distinctions becomes apparent.
The Legislature presumably wаnted to provide very specific immunity to police officers in the pursuit of wrongdoers who were escaping or who had escaped____ It seems most unlikely that the Legislature would want to base that immunity on the technical status of suspects as persons who had just been arrested, or who were about to be arrested, or for whom good cause for arrest existed. The most likely legislative intention evinced by the statutory language in the context of police pursuit is that when the officer suspected someone of having violated the law and was pursuing him, the officer’s conduct was immune from liability.
[Id at 360-61,627 A.2d 1090 .]
The Supreme Court agreed with this court’s statement that the words “escaped or escaping person” should not receive “a cramped interpretation in view of the clear legislative objective of immunity.” Id. at 361,
We hold that Pennsauken and Corney are entitled to immunity under N.J.S.A 59:5-2b. This section “provides absolute immunity for injuries caused by persons who are ... resisting arrest, escaping, or who havе escaped, or who are being pursued by police after having failed to stop at police command.” Margolis & Novack, Claims Against Public Entities, comment to N.J.S.A 59:5-2 (Gann 1997) (emphasis added). Wirtz failed to stop at a police command, fled, locked himself in his room and caused injury to plaintiff while the police were trying to take him into custody. Plaintiffs injury was caused by a person avoiding apprehension as a result of police pursuit. Tice, supra, 133 N.J. at 377,
We need not consider whether Pennsauken and Corney were also entitled to immunity under N.J.S.A 30:4-27.7(a), which provides:
A law enforcement officer ... acting in good faith pursuant to this act who takes reasonable steps to assess, take custody of, detain or transport an individual for the purposes of mental health assessment or treatment is immune from civil and criminal liability.
This statute has been described as providing another layer of protection for law enforcement officers by complementing, not superseding or abolishing, the immunity provisions of the Act. Perona v. Township of Mullica, 270 N.J.Super. 19, 25,
Plaintiff further maintains that summary judgment was improperly granted to Pennsauken, Corney and Merchantville because the judge erroneously refused to apply the special relationship doctrine which, plaintiff claims, has been adopted in New Jersey and which, according to plaintiff, supersedes any immunities under the Act. Plaintiff asserts that he, Pennsauken and Corney had a “special relationship,” as that term has been defined by case law, which was created in part by the Screening Act, N.J.S.A 30:4r-27.1 to -27.11.
Prehminarily, plaintiff maintains that the law of the case doctrine precluded the judge from granting summary judgment to Pennsauken and Corney because two judges had previously denied those defendants summary judgment. The two judges reasoned that because of the nature of the relationship between the police and Blunt, as a civilian mental health sereener, immunity should not apply. We do not agree with plaintiffs position.
A trial judge has the inherent power to review, revise, reconsider and modify interlocutory orders at any time prior to the entry of final judgment. C.P. v. Piscataway Township Bd. of Educ., 293 N.J.Super. 421, 431,
The special relationship doctrine, as defined by the California courts, arises where it is alleged that the police failed to protect members of the public from the harm caused by a third person. Lopez v. City of San Diego, 190 Cal.App.3d 678, 235 Cal.Rptr. 583, 585 (1987). “Generally, thеre is no legal ‘duty,’ and hence no liability for negligence, unless there is a special relationship between the police and either the victim or the third person which gives rise to a responsibility to control the third person’s conduct.” Ibid. In the usual situation, such a relationship will depend on representations or conduct by the police which causes the victim to detrimentally rely on the police to the extent that the risk of harm as the result of police negligence is something more than that to which the victim was already exposed. Ibid.
In Lee v. Doe,
In marked contrast to the conclusion reached by the court in Lee, supra, the California Supreme Court, however, has stated: “[T]he question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity.” Davidson v. City of Westminster,
Applicant argues that governmental immunities do not apply if there is a “special relаtionship” between the parties, giving rise to a duty of care. Applicant has confused the issues. Where the defendant owes no duty of care, no cause of action can be stated, and the issue of immunity is irrelevant. If, because of a special relationship, a duty of care may be found which otherwise would not exist — in other words, if the plaintiff has stated a cause of action — it is then incumbent upon the court to determine whether any immunity applies. The existence of an alleged special relationship does not negate the applicability of immunity; rather, it simply defines whether there is a duty that has been breached.
[Masters v. San Bernardino County Employees,32 Cal.App.4th 30 , 37 Cal.Rptr.2d 860, 869 n. 10 (1995) (emphasis added).]
See also Whitcombe v. County of Yolo, 73 Cal.App.3d 698, 141 Cal.Rptr. 189, 192 (1977) (rejecting the assumption that if a special relationship is established, there is no need to consider immunity, and thereby rejecting the related assumption that the special relationship doctrine gives rise to governmental liability notwithstanding principles of immunity). Thus, the sole purpose of the special relationship rule is to have “a reasonable and proper limitation of the scope of a duty of care owed,” 57 Am.Jur.2d Municipal County, School and State Tort Liability § 141 (1988), not to abrogate existing immunities.
New Jersey has taken a contrary approach under the Act. Duty is not a consideration and the initial determination is whether an
There appears to be a difference between California and New Jersey regarding the approach to immunity problems. In New Jersey the approach is whether an immunity applies and if not, whethеr liability should attach. However, in California, “the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity.”
[232 N.J.Super. at 580 n. 7,557 A.2d 1045 (citations omitted).]
However, while the Lee court noted this distinction, it did not apply it in its discussion. In our view, there is no need for a determination of the question of duty of care under the Act or for an analysis of whether a special relationship existed between the public entity or employee and the injured plaintiff because immunity under the Act clearly is applicable.
In addition, we question the applicability of the special relationship doctrine to case law in this state. It has been observed that because the Act is intended to be strictly construed to effectuate its purpose, courts should be cautious in sanctioning novel causes of action. 1972 Task Force Comment to N.J.S.A. 59:2-1; Margolis and Novack, supra, Comment to N.J.S.A 59:1-2. Immunity is the dominant consideration of the Act. Rochinsky v. State, Dep’t of Transp., 110 N.J. 399, 408,
In summary, because establishment of a special relationship does not negate the immunities contained in the Act, we do not decide the question of whether a special relationship existed between the police and plaintiff. Plaintiffs claim that a special
Ill
Plaintiff claims that defendants are not entitled to immunity under the Act because of willful misconduct. ■ Plаintiff points to Merchantville’s pursuit of Wirtz into Pennsauken and the refusal to take him into custody at that point, the alleged misrepresentation as to the existence of a warrant for Wirtz’s arrest and the warrantless entry into Wirtz’s boarding room. In addition, plaintiff maintains that defendants are not entitled to good faith immunity under the Act.
Pennsauken and Corney maintain that they did not commit willful misconduct because their acts were authorized by N.J.S.A. 30:4-27.6. They note that it was plaintiffs recommendation to enter Wirtz’s room, and that the issue of good faith is moot both because of their entitlement to immunity under N.J.S.A. 59:5-2b and because plaintiff failed to raise the issue below. Merchantville contends that both N.J.S.A 30:4-27.6 and “exigent circumstances” gave them the authority to pursue Wirtz, and that there can be no finding of willful misconduct because plaintiff fails to identify a policy or practice that the Merchantville police violated.
The alleged misrepresentation as to the existence of an outstanding warrant, rather than there being only summonses to compel Wirtz’s appearance, does not in these circumstances support a cause of action. The officers proceeded under compulsion of the Screening Act which required that they take immediate custody of Wirtz based on their personal observations that there was “reasonable cause to believe that [he was a] person [ ] in need of involuntary commitment.” N.J.S.A 30:4-27.6a. It is clear that plaintiff was aware that this was the objective of all concerned at the time of the shooting.
In granting Pennsauken and Corney’s summary judgment motion, the judge determined that “there is absolutely no evidence in the record before me upon which any jury could reasonably
IV
Plaintiff contends it was error to grant Merehantville summary judgment because discovery had not been completed and because the failure of the Borough’s officers to take Wirtz into custody constituted the negligent performance of a ministerial act, which, under the Act, would expose Merehantville to liability. Merchant-ville maintains that summary judgment was not premature, but that any error caused by a premature grant of the motion was cured by plaintiffs motion for reconsideration. Merehantville also argues that it is immune from liability for any negligence on the part of its officers pursuant to N.J.S.A. 59:5-2b.
In granting Merchantville’s summary judgment motion, the judge cited plaintiffs failure to submit an affidavit in accordance with R. 4:46-5, and the lack of evidence of the Borough’s negligence. In denying plaintiffs motion for reconsideration, the judge found that plaintiffs expert’s report constituted a net opinion and that the pursuit by Merchantville’s police officers into Pennsauken was not a proximate cause of plaintiffs injuries.
We are convinced that even if discovery was not complete at the time the motion was decided, the issue was mooted by plaintiffs motion for reconsideration. By the time of the motion for reconsideration, plaintiff was able to offer a report from an expert who concluded that the Merehantville officers were negligent because they did not have the authority to pursue Wirtz into Pennsauken. Plaintiff points to no additional facts coming to light after Merchantville was granted summary judgment that would raise any additional factual or legal issues respecting liability.
V
Lastly, we consider plaintiffs claim that the judge erred in granting summary judgment to Klapproth because she was negligent “in allowing her mentally ill grandson, Wirtz, to have access to the rifle,” as she knew he was “unstable” and afraid of police, and because she allegedly breached a statutory duty under N.J.SA 2C:58-3(j) to dispose of her deceased husband’s rifle. Plaintiff complains that the judge “failed to resolve factual issues in favor of plaintiff.” Klapproth argues that there was no statutory violation, and that even if there was, the breach was not a proximate cause of plaintiffs injury in light of Wirtz’s intervening criminal act.
In his deposition, Wirtz stated he stole the gun from the Klapproth’s house a week or two after his January 11, 1990 encounter with the police. He knеw his grandfather used to go hunting, but did not know where the gun was kept. Wirtz stayed in the vacant apartment above the Klapproth’s garage one night, and unsuccessfully looked for the gun in the house and garage. The following day, Wirtz told his grandmother he was going to her basement to make a slingshot. As he was “rummag[ing]” through
The record reveals that Klapproth’s husband bought the .22 caliber rifle around 1965. He put the rifle in the rafters in the back of the basement for safekeeping approximately ten years prior to the shooting, and he died in 1982. No ammunition was kept in the basement. When asked if he was the only person who used the rifle, she stated: “I never touched the gun, I never knew a thing about it.” Klapproth, now deceased, asserted “I could never have reached it in the rafters even if I wanted to move the thing.” She was aware that her grandson had been in a psychiatric hospital and believed he was not quite “right in his mind.” However, she never knew him to carry a weapon, and she said he was never “one for guns.” In addition, she never heard Wirtz say that he intended to use a weapon to hurt anyone. According to Klapproth, Wirtz talked about the police, and his fear of the police, whenever he spoke to her. Klapproth was not aware that the gun was missing until after the shooting. She believed that Wirtz must have taken the gun on January 16,1990, when he asked if he could go down to the cellar to get a tool. He did not have a key to her house and would not stay in her house, but rather in an apartment over the garage when visiting overnight.
Whether a defendant owes a legal duty, and the scope of that duty, are questions of law for the court to decide. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502,
Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. That inquiry involves identifying, weighing, and balancing several factors — the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. The analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific ease and generate intelligible and sensible rules to govern future conduct.
*512 [Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439,625 A.2d 1110 (1993) (citations omitted).]
Foreseeability of harm is the crucial factor in determining whether a duty exists to take reasonable measures to guard against the criminal activity of others. McGlynn v. Newark Parking Auth., 86 N.J. 551, 560,
[T]hese situations arise where the actor is under a special responsibility toward the one who suffers the harm, which includes the duty to protect him against such intentional misconduct; or where the actor’s own affirmative act has created or exposed the other to a recognizable high degree of risk of hаrm through such misconduct, which a reasonable man would take into account.
[Id. at cmt. e.]
The question of whether a party is liable when a weapon he or she owns is stolen from a private residence and subsequently used in a criminal act has not been decided in this State. However, other states have considered the issue.
In Estate of Strever v. Cline, 278 Mont. 165,
In the present case, we agree with the motion judge that plaintiff has failed to establish that Klapproth breached a duty to plaintiff. There is no evidence thаt Klapproth ever assumed or exercised any control over the weapon. Merely because she would have been entitled to ownership and control of the rifle does not mean that she had a duty to locate her deceased husband’s well-hidden rifle and make it further inaccessible to third parties who might clandestinely seek to steal it. There is no indication that stowing the rifle any other place upon the premises would have prevented its theft or the intentional shooting in question.
Palmisano v. Ehrig, 171 N.J.Super. 310,
With respect to the question of an intervening criminal act, such as occurred in this case, the Restatement (Second) of Torts, supra, at § 448 states:
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.
[Emphasis added.]
Under this rule, the actor must realize there is a likelihood that the failure to act would create an invitation оr temptation which would be likely to lead to the commission of the crime, either because the invitation or temptation is such that a “recognizable percentage of humanity is likely to yield” or is created at a place where “persons of particularly vicious type are likely to be” and likely to lead to the commission of fairly definite types of crime. Id. at cmts. b and c. It would not be reasonable on the facts presented to conclude that Klapproth should have realized that the hidden rifle presented a circumstance that was likely to cause her grandson to search for, find and use the rifle to intentionally shoot another. We find no breach of a common law duty by Klapproth.
We next consider whether Klapproth breached a statutory duty to plaintiff under N.J.S.A 2C:58-3(j), entitled “Firearms passing to heirs or legatees.” This statute provides:
Notwithstanding any other provision of this section concerning the transfer, receipt or acquisition of a firearm, a permit to purchase or a firearms purchaser identification card shall not be required for the passing of a firearm upon the death of an owner thereof to his heir or legatee, whether the same be by testamentary bequest or by the laws of intestacy. The person who shall so receive, or acquire said*515 firearm shall, however, be subject to all other provisions of this chapter. If the heir or legatee of such firearm does not qualify to possess or carry it, he may retain ownership of the firearm for the purpose of sale for a period not exceeding 180 days, or for such further limited period as may be approved by the chief law enforcement officer of the municipality in which the heir or legatee resides or the superintendent, provided that such firearm is in the custody of the chief law enforcement officer of the municipality or the superintendent during such period.
[Ibid.]
Thus, N.J.S.A 2C:58-3(j) allows a person to possess an inherited firearm without obtaining a firearms purchaser identification card, provided that if the person does not qualify to possess or carry it, the firearm can be retained for a limited time only for the purpose of disposing it. See State v. Cunningham, 186 N. J.Super. 502, 509,
No person shall ... receive ... a rifle or shotgun ... unless the ... assignee, donee, receiver or holder signs a written certification, on a form prescribed by the superintendent, which shall indicate that he presently complies with the requirements of subsection c. of this section____ The said certification ... in the case of a person who is not a dealer, ... may be filed with the chief of police of the municipality in which he resides or with the superintendent.
In turn, the chief of police or superintendent is authorized to issue to a qualified person a firearms purchaser identification card. N.J.S.A 2C:58-3(d). Thus, for purposes of this discussion, we will assume that Klapproth violated N.J.S.A 2C:58-3(j).
Nonetheless, the determination that a party has violated a statutory duty is not conclusive on the issue of negligence, unless it incorporated a common law duty of care, which the statute in question does not. Giantonnio v. Taccard, 291 N.J.Super. 31, 45,
Chapter 58 has been construed as an effort to limit the availability of weapons so that guns will be kept out of the hands of all dangerously unfit persons. Hoffman v. Union County Prosecutor, 240 N.J.Super. 206, 214,
“[I]n the absence of any other guide, a statute may well be assumed to include all risks that reasonably may be anticipated as likely to follow from its violation.” Prosser & Keeton on Torts, § 36 at 227 (5th ed.1984) (footnote omitted). Here, there is no evidence Klapproth did not “qualify to possess” the firearm under N.J.S.A 2C:58-3(e). Rather, any statutory violation was because she did not comply with the “provisions of th[e] chapter” regarding submission of the written certification.
Even if Klapproth had submitted the certification to obtain a firearms purchaser identification card, that would not have prevented Wirtz from taking the weapon from her residence and using it against plaintiff. “The test is reasonable foreseeability not possibility or conceivability.” Berko v. Freda, 172 N.J.Super. 436, 439,
The grants of summary judgment to respondents were in all respects proper. In light of our decision, the cross-claims are dismissed as moot.
Affirmed.