primarily upon the environment that is created on their premises when the injuries in the accident to my client were forseeable and in fact likely based upon the nightclub arrangement that harris had operating at the appreciate you providing supplemental briefing on which is the question of of this court's jurisdiction is it you i doubt you know we have an obligation to review and confirm our jurisdiction at all stages of this  matter your you will lawyer it seems on the standard that is well accepted that there is deference given to the well pled allegations but even taking those allegations to their fullest extent can you help me better understand where there is an amount of controversy above seventy five thousand dollars there is not a general amount of damages claimed here there's a very specific set of injuries capacity or medical independent medical examination the injury that my client the same is a serious injury on her right hand which is her dominant hand she's a fifty five year old woman who had eight spiral fingers and also a deformity and that her ring finger has shortened as a result of the healing nature of the fracture and she relayed in her deposition that she can't do simple things such as  hair with regard to her right hand which he used to do before and things that require and functions that require gripping i think that common experience tells us that the in terms of gripping the ring finger and the little finger are the most important fingers on your hand for terms of strength the index finger and you know the st three fingers a thumb in that finger and the middle finger more for dexterity but the strength actually comes from your expectancy tables in new jersey would be another twenty seven years so the fact that she still has problems with it it was not a simple break as i said with multiple fractures within those two fingers which has left her with a permanent disability and a permanent this figur n and ultimately i think that's that sustained our bleeding and demand of in excess of seventy five thousand dollars and show me some sort of compensatory damages to deal with and drinking on a crowded nightclub floor within a few inches of a of a pool is is anything less than an extraordinarily obvious aspersions on fifty five year olds but i'm assuming that if you're going to nightclubs to dance they were they were doing the waltz or something like that they were they were drinking and doing the sort of dance and that you know happens in one clubs right up against the pool that's that seems to be the factual record here and so so was there really a jury question as to the and in this case harris has to appear knowledge based upon their business model and there is a record proof that specially controller coulter indicated that he saw i about three occasions were just dancing cause someone to wind up in the pool and there were eight other incidents where people got pushed into the pool bar and during one of those you know i have been here so here's the heart of the challenge that i think you might face here mr brill that is on the one hand your briefing seems to indicate that you know clearly this was a hazard and harris knew it was a has they had a record that was a hazard but sort of a sucker that is it was obviously a hazard if you get people liquored up and you have a dance around in a big crowd right up at the edge of the pool that's a hazard and hair is parents knew it they had to know it that's kind of is something you're saying but by the same token shouldn't a thoughtful or nearly reasonable person know the same thing and say well you know what maybe i shouldn't maybe i shouldn't be right up against the pool while all this is happening maybe i should back myself off you know a few feet well judge i is the fact that there is a pool in the middle of the lake club with insufficient protection or is it that there was a call it an attempted or absolute criminal of fault or an action by a rd party because they seem to see shades of both in the discussions here and i'm wondering which which one are you focused on well judge we really don't know and ultimately i don't think it makes any difference under the case law whether it's a or intentional act so we've got a side of the fight for leave that aside for the moment you're focused then on the act of the rd party pushing whether intentionally or unintentionally is antonio that every single night there are at least two people who are arrested for disorderly conduct by atlantic city police or station and harrods just outside the door they don't like you and i'm glad you brought that up right because that's you're making the connection that i i think it's important if if the harm is the action of the rd party well then it seems as though they already will be would have satisfied that duty by among other things having the atlantic city police department station having a lifeguard on duty having twenty five to thirty five i think they call them uniformed control specialists will just call them security guards in the club so if your argument is under the restatement even if this was even if this was an obvious how they still had a duty then and help me understand how they didn't meet that duty as you've defined it by kicking over those precautions rico out what i would suggest is st of all that it would be a jury question to people twice a night being arrested for disorderly conduct they still have a leavened of twelve incident times where people wind up in the pool what did they do to correct that or to change that so it's one thing to have some measures in place but i it's a jury question and closing the supreme new jersey supreme court case would say would be a jury question whether that would be reasonable with that was enough given the history and pattern that occur if i might mr brill is the existence of the duty of fact question or a legal question well  duty comes from a legal question but the question is whether they comply with the duty depends upon the facts so if the if the well st of all before an obvious risk but under the case law it's a totality of circumstances test that's what the closing case that the supreme court case so that you have to take into effect not only the pool but the nature of the activities that are you know around the pool and what's occurring around the pool everybody knows that a pool is dangerous but if you're going to have activities that are going to heighten the risk which is what occurs here every night that has opened their doors you've got to use some kind of heightened measures to protect your patrons because the new jersey law requires this well then it sounds like you're saying there's at least the factual calm tone and to the determination of whether there's duty is that right well i guess that sounds like what you're saying there is a factual component you know and he's in this case all  issues that i will i need to address the st i will start with the substance and then i will address the mountain controversy issue but this is this is a it is a legal question at this point whether this is there is a duty by harris to protect protect against the type of injury allegedly sustained by playing well then but then i want you to wrestle with this language of the new jersey supreme court from the the close a case foreseeability as it impacts duty determinations refers to the knowledge of the risk of injury to be apprehended the risk reasonably be to be perceived defines the duty to be obeyed it is the risk reasonably within the range of apprehension that is taken into account in determining the existence of the duty or excise care so if if the risk to find the duty and the apprehension of the risk is determined by a reasonable standard isn't that classically a fact question that there is there is indeed a factual compound and here that  jury should have had an opportunity to assess while your honor is correct that reasonable is often the job of the jury or the fact finder to determine it is not exclusively that i'm just thinking up the top of my regularly is denied at least temporarily because there are facts questions right there so there are factual issues that have to be resolved before a court can say ok on that fact that undisputed fact record this is what we can say about immunity here what i'm hearing mr bruno say both in person well sort of in person here we are all in the sume room but  here in argument and in his briefing is that the level of risk to be reasonably apprehended had a whole bunch of fact questions associated with you know what  safety record told it what it's it's what the level of activity going on on a regular basis was and therefore what should have been understood to be the risk of allowing people right up against the pool why why is he wrong in saying that's all risk assessment and that risk assessment is fact intensive and that plays into duty and we're a title to have a now i've put words in his mouth he said it better night probably but that's i understand their argument to be what's wrong with that argument the assessment care has traditionally banned a legal question and even to court and i think it was close quote has he said that the when we we quote in our brief to of course i can't put my hand on that right jury to make a determination for example the supermarket cases where the consideration of whether i was security guard should be placed in a supermarket where there's a high crimes or whether one security guard is sufficient case those who did not go to those questions weren't gone did not go to the jury it was the court that decided what the reasonable duty or what the reasonable risk to be apprehended what's well here here the court seemed to which talks about the landowner being liable and having a responsibility to deal with risks to invitees that the should reasonably be understood to desist and that's were by were is there an acceptance you think there's some implicit acceptance by the district court that yes this there was riskier and yes there was an obligation to deal with it question is the three hundred and forty three question which is done will look like judge rodriguez answered explicitly so my question to you is should we be accepting it as having been implicitly answered by the judge that there was risk here and the duty ask i'm trying to ask you how you read it should we read this is a saying implicitly i find that there is a risk here and they had a responsibility but i'm going straight to three hundred and forty three dollars a and i'm just going to say it was an obvious risk so we read it that way or should we read it and say hey he missed a step it's got to go back because he he started talking about obviousness when he should have talked about risk and responsibility on harris part to start with what you think is the better reading well i  think there's some sort of reading that i'm missing i think the judge would have to cross i think the judge did address both because st of all he talks about the pool itself being an obvious hazard and in fact plaintiffs counsel just sa everyone everybody knows the pool is dangerous so so just so you're saying it's at least implicit in the least implicit that the judge understood int's and was saying that harris had a and a duty to protect its people since it had it chose to put on it shows just to throw drinking and dancing parties all around the pool right yes and and but the risk was matched with the local and state requirements that we have a lifeguard that we have regulations there's safety regulations and there's no indication in the record that there were any violations of the safety regulations so reg regard it was a poor or city regulations as to just a venue a nightclub you know with the number of people  attendance we had security guards there we had a life guard so so whatever risk that was reasonably foreseeable we met with appropriate measures to prevent any kind of injury to the  thank you you've got right to the point isn't that usually does kind of thing that we ask a cheery whether the measures taken were commensurate to address the risk well that would be classically classically a question for the jury did do enough to protect the public from a known risk that would be i would question of reach but before we even get to that the issue of whether there was a legal duty to protect against the type of harm suffered allegedly suffered by plaintive is what she that's why i started where i started because i thought we were i thought we just got past i thought we'd agreed that at least implicitly the judge  said there's a duty to protect here because this is a risk it's a risk that it's a risk to invite people to your property give them a bunch of liquor finance music and say dance right up and then let him dance right up to the edge of the pool that that's that there's risk there in fact he thought it was so risky apparently he went on to say it's an obvious obvious risk under three hundred and forty three dollars a and i thought you agreed with that so if we've gotten that far we've already said there's a duty and now our that there was a breach of that duty or that that was the proximate cause of the alleged injury and if this is a case where no reasonable jury could find for point of on the facts because they're just not there i mean this was a situation that happened out of the blue i mean they were dancing and something out of the blue it's happened it's happened to mr bruno eight times in the previous few months a lake who knew that people getting drunk and dancing right next to a pool might get knocked in apparently harrison knew because they had multiple examples of it on their safety record at  least on this record no except for that those incidents of people getting this prior incidents of people getting pushed into the pool did not result in an injury so the risk there was that people would get wet not that they would be injured but that they might  into the pool according to our complaint so that is something that is even though it does exist whether it would be preventable i think there's no there's no that's not even a question for the jury if you even get that far because it really maybe you don't think you don't think a jury might say hey maybe you should have sort of this chain a couple feet from the pool said you know you want to put some sort of a chain around that thing to people from going right up to her or maybe there some other barrier or safety you don't think any reasonable juror might say well you know what a little safety's a little bit of a safety spot might be in order no reasonable juror could think that i think that that would actually a legal question for this court to decide because if there if there's going to be a requirement if there's a leak if the duty of care  u know asked earlier about that yeah well thank you get started for you counsel before you turn to the jurisdictional question which i welcome your response on let's assume for a moment that there is a duty let's assume the harm was foreseeable where or where does this court factor in the questions of public policy that the new jersey supreme court has has urged as relevant to determining this question is it a is it a legal question that we then look for on top of it is that a factual question that somehow the jury considers because the court has spoken often about how it is that we need solutions that are properly and fairly key specific intelligence and sensible rules to govern future conduct seems that potentially the future conduct here goes beyond this particular pool be just a general issue about safety and as i referenced before there are regulations for public venues there are regulations for pools and none of those involve any kind of you know barrier between the pool and people who are walking next to those pools so i guess as is a far a public policy if this were to go to if this  e create a tension between legislative function and judicial function because the you know because the legislature whether local or state are the ones who determine what regulations are reasonably safe and they have done so and and i think that that would i can would only be that the public policy but there's also an issue and i'm not sure if this is a public policy or fairness i think that if there were there were a finding that would be required to do that there would be events such as you know swim meets at schools or other public pools where meets would occur if every single pool now is required to place  barrier i just think that the cost we're not really we're not really talking about every single pool needing a barrier a we're just we're kicking around hypotheticals about what a jury might think would a responsible nightclub owner do who chooses to have dancing and drinking all around the pool which is not the usual use for pools pools are not typically the situs night club dancing but that may be one of the things that i live at the shore so we don't do too we were more ocean goers not pool goers but i mean i'm thinking of other carbis but but not to you know i've been to the i've been to the shore once or twice both as an older man of the younger than you do  bar's right and so the idea that impacts the kids can lead to injury is not something unusual right and so i i suspect you would say that not only other implications to how the regulations involving pools are interpreted but how the regulations involving bars could be interpreted it's possible that you could have a staircase near a dance floor possible that the dance floor could be elevated by a foot or so it would s however i'd like to remind the court that this is not a dram shop case i mean negligence relating to alcohol service is exclusive property of the dram shop act and we raise this in our brief that if any argument hold on it's not a dram claim anymore there was one and we know that's out of the case but certainly when assessing levels of risk you're not suggesting that the fact that the dram shop claim is no longer in th case means the fact that there are widespread use of intoxicants at the nightclub is irrelevant are you are you suggesting that's irrelevant i suppose it would depend on how much of a factor that i it's part of the end part of the invitation come to our party we're going to play loud music we're going to have a lot of alcohol dennis rodman will be here there's a pool it's fun i mean it's all part of the mix in it i so what you want to say about jurisdiction jurisdiction now i'm sure the court can appreciate our frustration with this particular issue because we would prefer this court to simply affirm s she's not going to convince them i mean that's where her good fortune when she is not going to convince a jury that this is a seventy five thousand dollars case that the submission will if says are are  we're bound to follow what the u s supreme court says and and the way they put it is it must appear to a legal certainty that the claim is really for less than just your stiction a limb out toward dismissal the bus appeared that's a quote it must appear to a legal certainty now i understand you think they've got a snowball's chance but they don't think so when they put some things forward that indicate permanent  permanent loss of function pain and suffering could you can you really say and and it's i think you're right maybe to your advantage to keep this case here i don't know but can you really say legal certainty no way a jury would ever look at permanent disfigurement loss of function pain and suffering medical bills and say north of seventy five thousand no jury could ever say  own subjective testimony not on any other medical evidence in the file including her own medical expert who rendered a report saying that the prognosis and i'm reading from this report says the prognosis from these repeat our standard is it must appear to a legal certainty that there's no way the claim to be in excess of that and so i guess i'm just you're saying yes it's a legal certainty is that the position i think that their expert is saying that in addition to which which is more reliable i think the statements in her deposition testimony and addition to the fact that there were no medical i think your honor a high regard to closing that is that responsibility but thems is a reasonable precautions and the close the court says that the existence of a duty to take reasonable cautions is on the property owner and that would be factually intensive and so in terms of you know who makes that decision it should be the jury that makes that decision with regard to my client by the way even though there were striking my the testimony record  actually did not have any drinks that night as she was dancing and that would go towards her i guess comparative negligence if you will in terms of dancing where she was dancing with regard to what you can do around the pool what if you do say here's where you can dance  associated with pools they are set by elected officials with the advice of experts and it ill blues i mean i'm putting words around but it will boost the court to speak itself in where their spin policy judgments may business model that harrah's has adopted in this situation and even if the regulations are such the fact that you have continuing problems at your pool doesn't mean you know that complying with the regulations is sufficient that also would be a jury question whether you should take that extra step because you have disappearing knowledge that something's going to happen and in fact does happen on a regular and routine basis and all you do is collect the money and say ok what station will hire these off duty that they had at least they say that they had no injuries before with regard to people being bumped in the pool that that's not the standard the standard the foreseeability and even close he's close he says that is a foreseeable risk that someone who gets bumped into thank you for a debriefing and for argument today and we'll call our next case