ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] *  When the first railroad immunity statute became law in 1869, it merely codified the common law of New Jersey that a landowner owed no duty to a trespasser other than to refrain from willful and wanton conduct.  *Egan, supra*, 29 N.J. at 250.  One hundred years later in *Egan*, the plaintiffs contended that the statute had become an anachronism as courts had by then restricted the prior common law policy of a landowner's duty to trespassers in a variety of ways, leaving the statute “isolated” within our premises liability law.  *Id.* at 251–52.  The Supreme Court rejected the argument, holding that the Legislature had “solidified” the common law in effect at the time of the statute's enactment as it related to trespassers on the rights of way of railroads, and the evolution of the common law in the area provided no basis “to encroach upon a field where the Legislature has spoken. ”  *Id.* at 252.  More than twenty years later in *Renz*, the Supreme Court read the statutory history differently.  The Renz Court concluded that the Legislature had intended to predicate the railroads' statutory immunity on the common law doctrine of contributory negligence and not trespass.  87 N.J. at 448.  Contributory negligence, however, had been abrogated in New Jersey by the Legislature in 1972 when it adopted the Comparative Negligence Act.  *N.J.S.A.* 2A:15–5.1 to –5.17.  In order to resolve the apparent conflict between the railroad immunity statute and the Comparative Negligence Act, the Court infused the doctrine of comparative negligence into the railroad immunity statute.  *Renz*, supra, 87 N.J. at 459–60.  Accordingly, after *Renz*, the railroads no longer enjoyed complete immunity from the claims of injured trespassers.  Instead, they would be absolved of liability only if they could prove to a jury that the plaintiff's negligent contribution to his own injuries exceeded that of the railroad.  Id. at 460–61.  We subsequently applied *Renz* in two cases against [...] and [...], holding in both that the railroads owed trespassers a duty of reasonable care under all surrounding circumstances.  *Boyd v. [...]*, 291 N.J.Super. 608, 618–19 (App.Div.1996); *Ocasio*, supra, 299 N.J.Super. at 150–51.  Following our opinion in *Ocasio*, the Legislature in 1998 comprehensively amended the railroad immunity statute, restoring to railroads the absolute immunity from the claims of trespassers they had enjoyed before *Renz*, except as to minors, including railroad officers and employees within the protections of the statute, extending the statute's definition of trespass, and expressly repudiating application of the Comparative Negligence Act to railroad trespassers.  The point of this brief history is to illustrate the care that the Legislature took in crafting the statute in its current form.
[brief] The substance of the statements for which he was charged – “I will break your . . . jaw”; “I will beat your ass” – made no reference to the pandemic.  The threats did not exploit the conditions of the pandemic.  And the impact or harm of those statements was not enhanced in any way by the existence of the public health emergency, which had been in place for nearly 18 months at the time of the offenses.  (4T  Simply, there was no nexus between the threatening statements and the COVID-19 emergency.  In the absence of a nexus between the threat made and the emergency in place at the time, the second-degree enhancement in the terroristic threats statute does not reasonably relate to any legitimate governmental purpose.
[brief] Thereafter, the Chapter 13 Trustee sought to file an *amicus curiae* brief and there was no opposition thereto filed.  Adv. Pro. Doc. Nos. 19 and 26.  The Chapter 13 Trustee timely filed his Answer to Amended Complaint.  Adv. Pro. Doc. No. 27.  The Chapter 13 Trustee argued that the Debtor satisfied the necessary requirement for pipeline retroactivity and that the court should decline to permissively abstain from deciding the pipeline retroactivity issue.  \(^{12}\)  Unfortunately, Debtor’s counsel did not reciprocate with this graciousness in agreeing to maintaining the status quo because less than 2 hours before the hearing on the preliminary injunction and abstention, she directly requested the Clerk’s Office to enter Default against [...].  The parties have made their submissions, Main Case Doc. Nos. 96 and 98, and Adv. Pro. Doc. Nos. 21, 23, 24 and 27, a hearing was held, and the matters were taken under advisement.
[brief] ”  A charitable reading of the comments cited by Appellant shows the Trial Judge merely stated there were “some inconsistencies with the [Master Plan]” (3T50:22-51:3) and/or that the Redevelopment Plan was “in part” inconsistent.  3T63:9-11.  Immediately after making those comments, however, the Trial Judge clarified the Committee nevertheless had the authority to adopt the Redevelopment Plan by majority vote.
[directive] Addendum A | December 2020  CEDs and Other Less-Lethal Devices and Ammunition 2 Policy  2.1  The Use of Force Policy formally recognizes four distinct types of force: physical force; mechanical force; enhanced mechanical force; and deadly force.  2.2  Enhanced Mechanical Force is an intermediate force option between mechanical force and deadly force, generally requiring a greater level of justification than that pertaining to physical or mechanical force, but a lower level of justification than that required for the use of deadly force.  Unlike deadly force, enhanced mechanical force does not require an imminent threat of death or serious bodily injury.  Examples include CEDs and less-lethal devices and ammunition.  2.3  As with any type of force, officers shall exhaust all other reasonable means to gain compliance before resorting to enhanced mechanical force, if feasible.  Thus, if a safe alternative would achieve law enforcement’s objective, enhanced mechanical force shall not be used.  Officers shall, therefore, use verbal commands, critical decision making, tactical deployment and de-escalation techniques to gain voluntary compliance, when feasible.  Officers shall never engage in unnecessary, overly aggressive, or otherwise improper actions that create a situation where force becomes needed.  2.4  In situations where officers are justified in using force, officers shall use only that degree of force that is reasonable, necessary and proportional considering the totality of the circumstances, including the subject’s mental and physical condition, the nature of the offense, and the level of resistance or threat known to the officer at the time.  2.5  The decision to use force and the appropriate amount of force requires careful attention to the facts and circumstances of each incident.  2.6  Any deployment of a CED or less-lethal device against a person, except as authorized by this policy, is prohibited.  Any intentional misuse or reckless abuse of any such device will not be tolerated and will result in administrative action, discipline, or criminal prosecution.  2
[brief] B.  Plaintiff Proved the Amount of her Damages  Despite what defendants would have this Court believe, plaintiff proved the amount of her damages by presenting evidence of the amount of legal fees she incurred to correct defendants’ malpractice.  In In re Estate of Vayda, 184 N.J. 115 (2005), the New Jersey Supreme Court explained that:  [I]f a plaintiff has been forced because of the wrongful conduct of a tortfeasor to institute litigation against a third party, the plaintiff can recover the fees incurred in that litigation from the tortfeasor [because t]hose fees are merely a portion of the damages the plaintiff suffered at the hands of the tortfeasor.  Id. at 122 (quoting In re Estate of Lash, 169 N.J. 20, 26 (2001)).  The situation in Estate of Vavda is exactly what occurred here.
[brief] [...] expressed concerns with the lack of parking at the Property.  He speculated that [...]’s customers would utilize [...]’s emergency department parking spaces, next door to the Property.  (T1/139:1-6).  [...] also believed that ambulance traffic trying to access [...] could somehow be impacted.  (T1/135:2-8).  On cross-examination, however, [...] conceded he would be equally concerned about parking with another restaurant, a Starbucks, or a 7-11 convenience store operating at the Property – all of which are permitted uses in the CBD Zone.  (T1/142:12-143:17;147:25-148:5).  [...] also admitted that [...] did not attend any public hearings objecting to the implementation of the Green Zone at the Property, nor did [...] object to any of the related ordinances passed by the [...] and the [...].  (T1/151:14-19; 152:17-153:17; 154:1-4).  Next, [...] expressed concerns about the lack of loading and parking spaces.  (T1/162:7-166:8).  On cross-examination, [...] also admitted that he would have similar concerns if a Starbucks or Dunkin’ Donuts wanted to operate at the Property.  (T1/170:3-10).  More importantly, [...] also conceded that due to the pre-existing building on the Property, the Property is undersized and cannot accommodate any parking because of the shape of the Property.  (T1/177:1-16).  Finally, [...] opined on behalf of the objector that the parking demand for the proposed development would be higher than anticipated.  (T1/178:21-183:8).  However, [...] admitted on cross-examination that if the proposed development were for a Starbucks or a Dunkin’ Donuts, he would have the same concerns regarding parking and loading activities, but in those instances, the Applicant would be able to operate at the Property without having to undergo the approvals process.  (T1/183:21-184:12).
[brief] (15T144-19 to 149-11).  According to defendant, that supervisor, [...], introduced defendant to [...] at the conference.  (15T149-3 to 7).  Defendant denied showing [...] any ID during the stop, despite the video evidence of the earlier Lakehurst and Marlboro stops.  (16T114-15 to 20).  Defendant presented [...]’s testimony, in part, to corroborate defendant’s claim of the introduction.  (15T90-10 to 11; 15T106-23 to 107-3).  But while [...] confirmed he taught various courses with defendant, [...] could not recall teaching [...] at a conference, or if [...] ever took a course that defendant taught.  (15T108-8 to 12; 15T129-23 to 130-1; 15T130-23 to 25).  --- 14
[brief] (Pa3)  On June 30, 2021, [...] filed an Answer to Petitioner’s Complaint.  (Pa7)  On July 14, 2021, [...] filed a motion to dismiss petitioner’s Complaint for failure to state a claim upon which relief can be granted pursuant to R. 4:6-2(e).  (Pa21)  On August 16, 2021, Petitioner filed a separate motion to amend her Complaint to add additional allegations.  (Pa35)  Petitioner’s motion did not seek to change the named plaintiff in the case.  (Pa35)  On August 26, 2021, Petitioner filed opposition to [...]’s motion to dismiss.  On September 2, 2021, [...] filed opposition to Petitioner’s motion to amend her Complaint.  On October 11, 2021, Petitioner filed an additional opposition brief to [...]’s motion to dismiss the Complaint.  On October 12, 2021, [...] filed a reply brief in further support of its motion to dismiss the Complaint.  On October 13, 2021, Petitioner filed a brief in further support of her motion to amend her Complaint and in further opposition [...]’s motion to dismiss the Complaint.  On October 22, 2021, following oral argument, the Honorable [...], A.J.S.C. denied Petitioner’s motion to amend her Complaint and granted [...]’s motion to dismiss Petitioner’s Complaint.
[brief] (Pa156).  Provisions of this nature encourage developers to invest in blighted areas rather than in more profitable less risky projects outside of those areas.  And, as Plaintiff’s planner opined, they provide protection to redevelopers concerned about modifications that might degrade the redevelopment standards or afford competing developers more advantageous development opportunities.  (Pa967 to Pa968).  Such provisions are typical of other types of municipal actions inasmuch as municipalities routinely enter into agreements to circumscribe future action to achieve public goals.  They do so when purchasing property, when undertaking to condemn property, when entering into developer’s agreements and leases, when granting development approvals, and when settling litigation.  No case law suggests that those agreements are unlawful.  Here, by providing assurance to redevelopers, [...] afforded them protection for their risky investments under a stable zoning regime, thereby encouraging private investment in blighted areas and fulfilling the principal goal of the LRHL.
[brief] *Id.* at 503-04 (citations omitted).  Appellants argue that *County of Passaic* nonetheless requires application of *Atalese* here because Appellants are purportedly in a “weaker bargaining position to [...]” and “there is a clear imbalance of power between [...] USA (brewer) and Appellants (wholesalers).” (Pb 35, 38.)  However, the “bargaining power” at issue in *County of Passaic* and *Atalese* concerns the parties’ sophistication and whether they understood what they were agreeing to in their contract.  *Atalese* does not apply simply because one party *may* have more bargaining power than another party (which is disputed here, particularly as Appellants clearly do not simply accede to [...] USA’s wishes).  To find otherwise would allow a party to sign an unambiguous contract, but then at its option avoid enforcement certain terms while enforcing others by claiming that the other party had more bargaining power.  The real issue is whether the parties had notice of and understood the terms to which they agreed.  As the court explained in *County of Passaic*: > The parties here were represented by counsel at all relevant stages of their negotiations and during the formation of the relevant contract documents over the course of their seventeen-year relationship and *understood the difference between the right to seek relief in a court of law and being relegated to arbitration under AAA’s commercial rules*.  We thus agree with the trial judge that the arbitration provision was enforceable notwithstanding its lack of an express waiver of the County’s right to seek relief in a court of law.  474 N.J. Super. at 503-04 (emphasis added).  Appellants were on notice that their claims required arbitration.  The Wholesaler Agreement’s arbitration clause clearly and unequivocally requires that “[a]ny controversy or claim arising out of or relating to this Agreement shall be settled by arbitration in New York, New York pursuant to the rules and regulations of the American Arbitration Association. ” (Pa69 § 11.)  Appellants are also sophisticated business entities.  They have been operating their business since 1973.  (Pa24 ¶ 2.)  Their executives “have extensive familiarity with federal and state alcohol beverage control laws, particularly the state laws of the states that are relevant to [...]’s business. ” (Pa119, ¶ 3.)  They cannot seriously claim that they did not understand that, by agreeing to arbitrate, they were foregoing the right to sue in state or federal court.  In sum, the Wholesaler Agreement is an “arms-length agreement formulated by sophisticated parties that memorialized a commercial undertaking. ”  Reinv. Fund, Inc, 2022 WL 17587863, at *2 (Da148-Da151).  Appellants did not need to be told that, by agreeing to arbitrate, they were giving up their right to go to court.  Accordingly, the trial court’s referral to arbitration should be affirmed.
[brief] ”  *Id.* at 281-282.  In addition, the Court held that the parties engaged in motion practice, defendant filed a motion for summary judgment, and engaged in extensive discovery.  *Id.* at 282-283.  This case is not like *White* or *Cole*.  Rather, the Action is still in its infancy.  The Action is not on the eve of trial; instead, while Respondents filed a pre-Answer Motion to Dismiss the Complaint, which was granted in part, thereafter, Respondents only filed an Answer to the Complaint.  As the Lower Court rightly noted, the parties have not engaged in any substantive discovery, as Appellant served initial discovery demands and Respondents has not produced documents in response.  No depositions have taken place or have been scheduled.  No scheduling orders have been issued and, while Appellant sought an extension of time on Discovery, no trial date has been scheduled.  Therefore, unlike the facts of *White* and *Cole*, Respondents’ actions do not evince an intent to knowingly relinquish the right to arbitrate by acting inconsistently with that right to compel arbitration.  *See Morgan*, 142 S. Ct. 1708; see also *Zephyr Fluid Sols., LLC v. Scholle IPN Packaging, Inc.*, 2023 U.S. Dist. LEXIS 20890, at *6-7 (D. Del. Feb. 7, 2023 (holding arbitration not waived simply by filing a motion to dismiss) (Da113-Da116).  Thus, when the Lower Court granted Respondents’ motion to compel arbitration, the Action was (and is) still in the preliminary stages, and the Lower Court therefore correctly held that Respondents did not waive their right to compel arbitration.  **CONCLUSION**
[brief] [...] filed a motion for summary judgement based upon the simple assertion that the COVID Statute required that [...] pay it for the period that [...]’s schools were closed due to the pandemic.  Through [...], its vice president and general manager, it was explained that [...] had received payment from [...] for the May-June 2020 period, that it had thereafter paid the laid off custodians it had assigned to [...] their wages for that period, (which was documented), but that it had not been paid for April and July 1-6, 2020, and had not paid its custodians for that period.  640-41a; 655-68a.  [...] responded with the Certification of [...], its superintendent, which mostly recited the allegations of [...]’s Complaint.  211a.  Most of what [...] offered in opposition to [...]’s motion, and in support of [...]’s motion to dismiss [...]’s counterclaim, was a discussion of how many students [...] is responsible for and the many challenges presented to it by the closing of its schools, implementation of remote learning and meal provision to qualifying students at their homes.  The Certification also devotes much text to arguing for a construction of the COVID Statute that ignores its provision mandating payment to contracted service providers who were not providing services due to the pandemic.
[brief] This deed clearly stated that what was being conveyed extended from the Raritan Bay back to the lot lines and extending the entire width of the map from No. 35 in Block E on the east to Lot 30 in Block C to the west.  On that page, there is also a sentence which states:  "Together with all and singular, the houses, buildings, trees, ways, waters, profits, privileges and advantages with the appurtenance to the same belonging or in any wise appurtenant".  There is no reference to either a Riparian right, Riparian Grant or lands lying under the water but rather there is a specific reference to land which extends from the Raritan Bay back to the lot lines on the filed map.  Subsequently, there is a deed from [...] to [...] dated June 18, 1920, in Deed Book 1116, page 261 (Pa925).
[brief] ”  Ca240-241.  Complainants allege that the post “could be reasonably be seen as compromising the Board and as speaking for the Board as a member of the public” and that Respondent “held herself out as a member of” the Board on her Facebook page.  Ca241.  Count 2 of the amended complaint relates to what Complainants describe as “anti-vaccine” Facebook posts by Respondent which Complainants allege that the posts “could be reasonably be seen as compromising the Board and as speaking for the Board as a member of the public. ”  Ca241-Ca242.  They also allege that Respondent “held herself out as a member of” the Board on her Facebook page.  Ca241.  Count 3 of the amended complaint relates to Respondent’s attendance at a January 22, 2022 meeting of the Board without wearing a mask while performing her duties as a member of Board.
[brief] ”  *State v. Reed*, 133 N.J. 237, 253 (1993); see also *State v. Wright*, 97 N.J. 113, 126 (1984) (finding that the defendant’s statement concerning an attorney, “although somewhat ambiguous, sufficiently constituted an invocation of his fifth-amendment rights”).  “Because the right to counsel is so fundamental, an equivocal request for an attorney is to be interpreted in a light most favorable to the defendant. ”  *State v. Chew*, 150 N.J. 30, 63 (1997).  If a suspect’s “words amount to even an ambiguous request for counsel, the questioning must cease, although clarification is permitted. ”  *State v. Alston*, 204 N.J. 614, 624 (2011).  “[I]f the statements are so ambiguous that they cannot be understood to be the assertion of a right, clarification is not only permitted but needed.
[brief] 2  Of course, not every case involving medical care requires expert testimony, such as when the common knowledge exception applies and the jury is capable, “using ordinary understanding and experience, to determine a defendant’s negligence without the benefit of the specialized knowledge of experts. ”  This exception “allow[s] the jury to supply the applicable standard of care and thus [] obviate[s] the necessity for expert testimony relative thereto. ”  Sanzari v. Rosenfeld, 34 N.J. 128, 141 (1961).  Matters for which this doctrine applies includes, extracting the wrong tooth, Hubbard v. Reed, 168 N.J. 387, 396 (2001); misreading specimen identification numbers in a test result report for the results themselves, Palanque v. Lambert-Woolley, 168 N.J. 398, 400 (2001); or accidentally connected a gas line rather than a fluid line to the patient’s uterus during a diagnostic hysteroscopy, Estate of Chin, 160 N.J. at 460.  Consequently, for all the foregoing reasons, as the plaintiff failed to provide the expert testimony which was required, summary judgment was appropriate and properly granted.
[brief] _[...] Moves its Successful Union Office to Notis’ Building_  [...] is a licensed optician who founded [...], an optical store, in approximately 1978.  (P360a).  In the early 2000s, [...] agreed with [...], an ophthalmologist, to move [...] to a building Notis had purchased.  (P355a).  Also in this building was Notis’s ophthalmology practice, Defendant [...] d/b/a [...] (“[...]”).  (Id.).  Prior to that time, [...] had had a successful independent optical practice in Union for more than a decade.  (P354a-P355a, P360a).  [...] recalled that before moving [...] into Notis’ building in Union, Notis promised that he would not abandon [...] for any reason once [...] moved to Notis’ building.  (P355a).  [...] saw that moving his optical within a doctor’s building would mean its current customers would likely begin visiting Notis for their medical needs, and because of that, the other eye doctors in the area with whom [...] had cultivated relationships would no longer refer patients to [...].  (Id.).  _[...] and the Notis Defendants Form a Single Integrated Practice_
[brief] Dela Vega, supra, A-2272-19 at *3, FN2.  (Pa107).  [...] died as a result of the subject automobile collision.  Defendant [...] is attempting to eliminate all excess liability coverage that could compensate his Estate based upon the intra-family exclusion, thus limiting his recovery to the $500,000 underlying policy.  If Miles’ friend were in the vehicle and met the same unfortunate fate, that individual could recover up to the $5,000,000 liability limits under the [...] policy.  The inequities are stark and are inconsistent with New Jersey law.  New Jersey public policy favors broad insurance coverage.  New Jersey public policy disfavors exclusions that eliminate, without reason, whole classes of drivers from the benefit of liability coverage they purchase.  New Jersey public policy favors ensuring that injured individuals are justly and adequately compensated for damages sustained due to the negligent acts of others.  The intrafamily liability exclusion contained in defendant [...]’s policy runs contrary to these policies and respectfully should be deemed unenforceable.