ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] On May 1, 2024, plaintiff [...] was a business invitee of defendant [...]  (“[...]”) located at [...] when she slipped and fell.  Pa88-Pa89 at 16:20-21; 17:25; 18-10; 19:3.  There is no evidence that [...] had a designated maintenance employee or department.  Pa87 at 13:2-5.  There is no evidence that [...] employed or tasked anyone to be responsible for making sure that there were no hazards inside the store that could cause injury to customers.  Pa87 at 13:15-19.  There had been other instances of spills on [...]’ floor that needed to be cleaned up and the backroom was stocked with cleaning supplies to be used to clean spills.  Pa88 at 14:2; 14:12.  The duties of the sales associates were to pick up clothing and help customers if they have a question.  Pa87 at 11:9-12.  The only specified maintenance duty of a sales associate was to pick up clothing or hangers seen on the ground in the morning and when leaving.  Pa 87 at 11:15-17; 11:20-23; 12:1-4.  [...] did not have any employees dedicated to maintenance during store hours and relied on the salespeople to clean up spills, if discovered.  Pa88 14:17-18.  LEGAL ARGUMENT POINT I a.
[brief] Under that settled principle of law, trial errors that “‘were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal....’”  *State v. Corsaro*, 107 N.J. 339, 345 (1987) (alteration in original) (quoting *State v. Harper*, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)).
[brief] *Bartley Healthcare Nursing & Rehab. v. New Jersey Dep't of Health & Senior Servs.*, 2011 N.J. Super. Unpub. LEXIS 329, 27-28 (App. Div. Feb. 15, 2011) citing *In re Virtua-West Jersey Hosp. Voorhees*, 194 N.J. 413, 422 (2008).  LEGAL ARGUMENT POINT I THE DECISION OF THE [...] WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE, AND SHOULD BE REVERSED.
[brief] i.  The Authority Did Not Seek [...]’s Approval for Marketing Plans  The Operating Agreement gave [...] the ability to offer, market, make, and sell various forms of parking privileges to the public under various schemes and/or time limitations to be determined and set by [...].  Da256 (§ 5.2 (b)).  The Operating Agreement, however, required that “any marketing plan shall be provided to [[...]] for its review and comment. ”  Ibid.  The Authority failed to submit such plans to [...].  For example, [...] entered into a Memorandum of Agreement (“MOA”) with the [...] (the “County”) to offer jurors reduced parking fees.  Pa231.  [...] did not know about this arrangement until after [...] executed the MOA.  1T68:1-6.  The Authority also offered coupon books for discounted parking at any of [...]’s parking facilities, including the Project Garage, but never informed [...].  1T68:15-70:1.  ii.
[brief] What must be understood here is that the [...] phone call was a prediction of being removed from the high school.  The disappearance of work assignments should be attributed to [...] because he was called out by the Plaintiff for telling [...] about the EEOC complaint.  [...] mentioned the word “female” and the Plaintiff knew that [...] knew about the EEOC complaint.  When the Plaintiff told [...] that he, [...], ruined his career, it was the final touch to retaliation for having filed an EEOC complaint.  In his Certification, [...] states that Plaintiff worked about 10 to 15 hours a week (1T; 29:3).
[brief] ” (2T17-19 to 18-3).  The court restated that it found it credible that the tip was received just before it was relayed to [...], given the purpose and mission of these units working together.  (2T18-4 to 21).  The court further echoed its initial decision by emphasizing [...]’s credible observations, consistent with its review of the body-worn camera and [...]’s in-court demonstration, that defendant’s furtive movements with his arms on his bag and nervousness added to the suspicion and reliability of the CI’s tip.  (2T18-23 to 19-18).  In sum, the court found the motion was properly denied.
[brief] Defendant tries to argue that because [...] was surveilling the ShopRite parking lot for narcotics activity when he observed what he suspected to be CDS transactions, that the probable cause that arose from defendant’s admission about CDS was “wholly connected” to the original investigation and was, therefore, neither unforeseeable nor spontaneous.  (Db28-29).  In effect, defendant attempts to stretch the recent holding of Smart, 253 N.J. at 163, to stand for the principle that if officers in a high-crime area develop a reasonable suspicion that a particular contraband will be found in a vehicle, and probable cause arises to harden this suspicion at any time, they must stop and obtain a warrant because it is no longer unforeseeable and spontaneous they might find that specific contraband.  (Db29).  But Smart does not stand for such an extreme and illogical bright-line principle.  The Court self-limited the application of its holding to other cases by emphasizing its fact-specific nature.  Smart, 253 N.J. at 173.
[directive] Limitations on vehicular pursuits.  Vehicular pursuits present officers with difficult decisions that involve balancing the duty to enforce the law and apprehend violators with the risks created by pursuing motor vehicles, often being operated at high speeds by irresponsible drivers in densely populated areas.  The decision to pursue a motor vehicle must be objectively justifiable after giving due consideration to a number of factors.  Although impossible to create a policy that addresses every potential scenario, officers and supervisors shall conduct vehicular pursuits only within the parameters outlined in Addendum B of this Policy.  Due to the risks to both officers and the public, supervisors are expected to exercise an enhanced level of control over vehicular pursuits.  4.8.1  Vehicular pursuits shall only be initiated if the pursuing officer reasonably believes that: (a) the violator has committed, or is engaged in a conspiracy or attempt to commit, a crime enumerated in Section 3.2(a) of Addendum B; or (b) the violator poses an imminent threat to the safety of the public or other police officers.  This determination shall be made based upon the violator’s actions or operation of the vehicle prior to the initiation of the attempted motor vehicle stop.  The violator’s subsequent actions, including speeding or evasive driving during the pursuit itself, although often supporting the criminal charge of Eluding, N.J.S.A. 2C:29-2(b), shall not constitute an authorization to initiate or continue a pursuit.  16
[brief] Amicus respectfully submits this brief to urge the Court to reverse the trial court’s Order and determine that trial courts may not order the production of concededly irrelevant documents.  The issue posed by Defendants’ appeal is straightforward: Can parties be ordered to produce — in violation of the plain limitations of Rule 4:10-2 — vast collections of documents without first being afforded the opportunity to remove their own — and third parties’ — irrelevant personal, private, trade secret, or otherwise confidential material?  The authors of our Nation’s system of full pretrial disclosure never anticipated the present reality, in which potentially disclosable materials in a civil matter comprise millions or billions of documents and contain highly personal information of nonparties who are but bystanders to the dispute.  Over time, the astronomical electronic data volumes required courts, lawyers, and parties to adapt discovery practices to the new reality.  The new manner in which potentially responsive materials are gathered — typically using keywords as search terms — produce vastly overbroad collections of documents.  For years, all concerned have understood this predicament and have allowed producing parties to identify and remove irrelevant documents or content from collections of materials being produced to requesting parties.  By contrast, the Order here requires Defendants to produce every single email that contains a hit on any of the keyword search terms used.  This requirement ignores the reality that a significant portion, sometimes a majority, of the documents collected by keyword searches are irrelevant, despite the parties’ best efforts to choose appropriate search terms.  One recent study conducted by the National Institute of Standards and Technology (NIST), an agency of the U.S. Commerce Department, found that even the most carefully designed keyword searches achieved only 44.6% precision of relevant articles, meaning 55.4% of the “hits” were nonresponsive.  [...], et al., Overview of the TREC 2018 Precision Medicine Track, Twenty-Seventh Text REtrieval Conf., Nat’l Inst. Standards & Tech. Spec. Pub. 500-331 at https://trec.nist.gov/pubs/trec27/trec2018.html.  While keyword searches of the modern type specified in the Order are commonly used in modern litigation, because of their imprecision as evidenced by the NIST study, they are only the first step in a methodology that also requires substantive review of the “hits” to separate relevant information from many false-positive retrievals.  The Order improperly prohibits Defendants from performing this needed substantive review from the keyword methodology.
[brief] Since the outset of the litigation the case has been plagued with discovery disputes.  However, the “floodgates were opened” after [...] produced 4000 pages of documents on September 19, 2012, the day before the then existing discovery deadline expired.  [...]'s production included the so-called “[...] reports” which plaintiff characterizes as a “bombshell. ”  These reports concern investigations [...] undertook in May and June 2010.  Although the investigation was initially focused on plaintiff's interim supervisor, [...], the reports contain summaries of statements made by plaintiff's co-employees complaining about plaintiff.  5  The term “documents” as used herein includes responsive electronically stored information.  6  The “[...] Reports” comprise [...]'s July 2, 2010 memo which attached and summarized investigative reports dated May 19, 2010 and June 29, 2010.  See [...], Esquire, Certification ¶ 15, Doc. No. 141–1.  *3
[brief] “As a general and long-standing matter, contracting parties are afforded the liberty to bind themselves as they see fit. ”  Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 302 (2010), citing Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356 (1931) (“The general rule is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.
[brief] [...] improperly relies on material that is not in the record below.  Consistent with Rule 2:6-1(a), [...]’s Appendix includes all items that the parties submitted to the trial court on summary judgment.  (Pa176–77).  [...]’s Appendix, by contrast, improperly includes 25 documents that are not in the record below.  (Da1–49).  These new documents are outside the Appellate Division’s scope of its review.  Rule 2:5-4 limits the “record on appeal” to “papers on file in the court . . . below,” “the stenographic transcript or statement of the proceedings,” and “all papers filed with . . . the appellate court. ”  “Our appellate courts will not ordinarily consider evidentiary material that is not in the record below. ”  Liberty Surplus Ins. Corp.  v. Nowell Amoroso, P.A., 189 N.J. 436, 452 (2007); Ambassador Ins. Co. v. Montes, 76 N.J. 477, 481–82 (1978) (limiting review to insurance policy in evidence and barring insurer from supplementing record).  An appellate court may, however, consider new material if a party first moves to supplement the trial court record.  State v. Horne, 463 N.J. Super. 224, 227 n.1 (App. Div. 2020).  In deciding such a motion, the appellate court considers two factors.  First, “whether at the time of the hearing” below, the movant “knew of the information [it] now seeks to include in the record. ”  *Liberty Surplus*, 189 N.J. at 452–53.  Second, whether the evidence “is likely to affect the outcome,” if allowed.  *Id.*  Both factors militate against supplementing the record here, which explains why [...] has failed to file an appropriate motion.  In fact, all the documents in [...]’s Appendix predate its summary judgment motion.  (Pa44).  Yet none are in the record below.  (*See Compare* Pa176–77 and Da1–49).  If these documents supported dismissal, then [...] would have submitted below.  At any rate, [...] has not moved to supplement the trial court record.  The Appellate Division should thus disregard the documents in [...]’s Appendix.  By extension, the Appellate Division should reject any statement or argument that relies on [...]’s Appendix.  II.
[brief] [...] takes the same position as [...].  [...] argues that the Appellate Division decision in his case correctly concluded that reasonable suspicion did not exist.  Analyzing the stop based on the totality of the circumstances, [...] contends that both the proximity to the 7-Eleven and the defendants' non-reaction to the spotlight "provided zero basis for reasonable suspicion," leaving only a description of the two Black men fleeing on foot to establish reasonable suspicion for the stop.
[brief] (Pa409).  That is, a plaintiff must first “verify, as a matter of reasonable medical probability” the alleged negligent treatment increased the risk posed by the pre-existing condition before a jury question is raised as to whether that increased risk was a substantial factor in producing the ultimate result.  *Scafidi*, 119 N.J. at 108-09 (citing *Evers v. Dollinger*, 95 N.J. 399, 417 (1984)).  See also *Reynolds v. Gonzales*, 172 N.J. 266, 282-283 (2002).  Although [...] did not specifically reference *Scafidi* or *Evers*, she cited *Vuocolo v. Diamond Shamrock Chem*, 240 N.J. Super. 289, 295 (App. Div. 1990), where [...], P.J.A.D. explained the increased risk/substantial factor standard of proximate cause set forth in *Evers*.  She also cited *Davis v. Brooks*, 280 N.J. Super. 406, 410 (App. Div. 1993), which cites *Scafidi*.  More to the point, the *Evers/Scafidi* standard does not relieve the plaintiff of having to present proof to a reasonable degree of probability the defendant’s negligence increased the risk of harm.  Proof of an increased risk requires more than a mere “possibility. ”  *Reynolds*, 172 N.J. at 284 (citing *Germann v. Matriss*, 55 N.J. 193, 205 (1970)).  As the Court wrote in *Reynolds*, speculation is not enough:  [T]he plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.  A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.
[brief] [...] virtual office 2014 – 2017 Time Chart .................................. 21  2.  Office Closed End of April 2014 – Mailed Forward by USPS .......................... 22  3.  [...] Court Record Summary February 2015 through May 2015 ............ 23  4.  [...]  Court Record Summary February 2015 through May 2015 .................. 24  5.  Defendant’s History Prior to the Final Judgment by Default on 5-4-2015 ....................  25-26  Exhibit F: [...] Work Sheets
[brief] DEP’S APPROVAL OF A CAFRA PERMIT FOR THE 290 OCEAN PROJECT, REVERSING ITS EARLIER DENIAL, IS AN ILLEGAL WAIVER OF THE SCENIC RESOURCES AND DESIGN RULE UNDER ESTABLISHED CASE LAW.  (Raised Below: Aa41-Aa43; Aa65)  The New Jersey Supreme Court has long established limitations on an administrative agency's waiver of its own regulations.  An agency that seeks the power to waive its substantive regulations must adopt a regulation pertaining to any such waiver and setting forth appropriate standards to govern agency decision-making.  *In re CAFRA Permit No. 87-0959-5 Issued to Gateway Assocs.*, 152 N.J. 287, 308 (1997).  An agency exceeds its statutory authority when it acts contrary to the regulations that bind the agency.  *Dragon v. New Jersey Dep't of Environmental Protection*, 405 N.J. Super. 478, 492 (App. Div. 2009) (overturning a DEP decision after finding that the waiver of its own regulations lacked regulatory authority).  In *Dragon*, the Appellate Division dismissed DEP’s argument that the agency had authority to issue a permit that would violate relevant DEP regulations via a settlement.  *Id.*  The Court ruled that without rules authorizing a waiver, and without a justifying rationale for settling litigation, an agency's failure to follow its own regulations is automatically arbitrary and capricious and therefore must be reversed.  *Id.*  A reviewing court must therefore set aside as arbitrary and capricious any agency action that violates the agency's own rules and regulations.  *Id.*  *Dragon* involved waiving compliance with the CAFRA rule on Coastal High Hazard Areas, *N.J.A.C. 7:7-9.18*, which generally prohibits residential development in a V-Zone unless it qualifies as "infill" development.  Infill is where the proposed development has existing homes within 100 feet on both sides of the lot.  There was no question that the proposed development in *Dragon* did not constitute infill.  Nonetheless, DEP agreed to settle the matter and issue a Letter of Authorization allowing the development, thus waiving compliance with the Coastal High Hazard regulation.  The Appellate Division held that the settlement was ultra vires and arbitrary and capricious because it impermissibly allowed DEP to waive compliance with a substantive Coastal Zone Management regulation, specifically *N.J.A.C. 7:7-9.18*.  The Court concluded that CAFRA does not give DEP either the express or implied power to authorize non-compliant development in a settlement agreement.  *Dragon* supra at 484.  There is a striking similarity between the settlement in the *Dragon* case and the [...] settlement.  In both cases DEP entered into settlements permitting the applicants to proceed with construction despite blatant non-compliance with applicable regulations, and in both cases no regulations exist governing waivers, and in both cases there was no justifying litigation risk.  The project in *Dragon* clearly did not meet the Coastal High Hazard Areas Rule; the [...] project clearly does not meet the Scenic Resources Rule.  DEP faced no litigation risk—it simply caved and gave [...] a bigger tax ratable and [...] enhanced economic benefit.  **POINT III**
[brief] The Board denied that application.  Pa110 at ¶2.  E.  Plaintiff Proposed a 1.77 Floor Area Ratio (“FAR”)  At the June 20, 2022 hearing, Plaintiff’s counsel gave an overview of the current development plan for Lot 5.  Counsel stated that the new plan has a FAR of 1.42 which was less than what had been previously proposed.  Pa174 at 4:14-22.  However, the Borough Planner disagreed, opining that the FAR for the current project approximated 1.77 and that Plaintiff’s engineer had miscalculated the FAR by omitting portions of the garage.  She explained that based on Borough Zoning Ordinance definitions of “Floor Area, Gross” and “Floor Area Ratio”, all of the parking garage except the lower-level garage floor that is located in the basement should be included in the FAR calculation.  Plaintiff’s engineer had improperly omitted portions of the lowest level uncovered and open portion of the parking garage in his computations to arrive at the incorrect 1.42 figure.  Da1-7; Pa132 at ¶48; Pa123-124 at ¶30; Pa237 at 34:7-36:1; 36:11-14.  The Borough Engineer also opined that Plaintiff’s proffered 1.42 FAR calculation was erroneous, and that the FAR being proposed was indeed 1.77:  “The Applicant has revised the zoning table to indicate that a Floor Ratio Area of 1.42 is being proposed.
[brief] The more concise wording is simple: “…regardless of whether or not such claim, damage, loss or expense is caused in part by the negligence of a party indemnified hereunder. ”  Inserting “the negligence of” solves both problems by clearly referencing the indemnitee’s own negligence and clarifying that “caused” exclusively applies to “negligence. ”  Without this phrase, however, the clause is not Azurak compliant.
[directive] Defendant of Signature Defendant Date Defendant is Ineligible Prosecutor  Consent Required Statement Submitted D Yes No NIA N/A Yes Unknown No N/A Yes No D D Fee Paid Fee Waived of2  Revised Form Promulgated Directive #09-19 (06/04/2019), page 2 [...] by ATTACHMENT  2  PTI ORDER OF POSTPONEMENT - Pretrial Intervention of Order  Postponement of State New Jersey
[brief] 21  TABLE OF JUDGMENTS, ORDERS & RULINGS BEING APPEALED  Page(s)  Order of August 4, 2023  Granting Summary Judgment (T15 - T19)  ..................1a  ## TABLE OF AUTHORITIES | Cases | Page(s) | |----------------------------------------------------------------------|---------| | Anderson v. Liberty Lobby, Inc., | 5 | | 477 U.S. 242 (1986) | | | Aparicio v. Norfolk & W. Ry., | 9 | | 84 F.3d 803 (6th Cir. 1996) | | | Bailey v. Central Vermont Railway, | 8 | | 319 U.S. 350, (1943) | | | Brill v. Guardian Life Ins. Co. of Am., | 5 | | 142 N.J. 520 (1995) | | | Boeing Company v. Shipman, | 6 | | 411 F.2d 65 (11th Cir. 1969) | | | Burns v. Penn Central Co., | 19, 20 | | 519 F.2d 512 (2d Cir. 1975) | | | Butkera v. Hudson River Sloop “Clearwater,” Inc., | 4 | | 300 N.J.Super. 550 (App.Div.1997) | | | Ciarolla v. Union Railroad Co., | 8 | | 338 A.2d 669 (Pa.Super. 1975) | | | Conrail v. Gottshall, | 9 | | 512 U.S. 532 (1994) | | | CSX Transportation, Inc. v. McBride, | 6, 9, 13, 14 | | 131 S.Ct. 2630 (2011) | | | Dalka v. Wisconsin Central, Ltd., | 19 | | 811 N.W.2d 834 (Ct.App.Wis. 2012) | | | Donovan v. Port Authority Trans Hudson Corp., | 7 | | 309 N.J. Super. 340 (App.Div. 1998) | | Estate of Hanges v. Metropolitan Property & Cas. Ins. Co., 202 N.J. 369 (2010)
[brief] Instead, *Veras*’s determination that no implied private right of action existed in the NJCFLA was based entirely on the existence of the Commissioner’s enforcement abilities under subsection 18.  But N.J.S.A. 17:11C-18 does not disallow private actions by aggrieved consumers—nor did any of its predecessors, *despite their also providing for the Commissioner’s authority to oversee licensure and pursue independent prosecutions*.  The entire legislative history of the NJCFLA, *to wit*, every codified iteration, has allowed for a private right of action by individual consumers in conjunction with the Commissioner’s oversight.