ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The issue on appeal is whether an exclusion contained in a Workers Compensation and Employers Liability Insurance Policy issued by defendant, [...] (“[...]”), to [...]’s employer, [...] (“[...]”), is enforceable.  The C5 exclusion at issue seeks to exclude from coverage any claims for “intentional wrongs” that are excluded from coverage under N.J.S.A. 34:15-8.  Pursuant to N.J.S.A. 34:15-70 et seq., otherwise known as the Employers’ Liability Insurance Law, an employer is obligated to “make sufficient provision for the complete payment of any obligation which he may incur to an injured employee. ”  Coverage under such insurance contracts may not limit "the liability of the insurer to an amount less than that payable by the assured on account of his entire liability” to his employee.  N.J.S.A. 34:15-87.  The terms of an insurance policy issued pursuant to the Workers Compensation Act (“WCA”) and the Employers’ Liability Insurance Law cannot conflict with the statutory mandate that coverage be provided for the complete payment of any obligation of the employer to the injured employee.  The trial court erred in holding that the exclusion was enforceable, finding that the “removal of exclusion C5 would lead to an increase in moral hazard, going against public policy. ”  Stated another way, the trial court accepted the unsubstantiated premise that having insurance will promote bad behavior and the lack of insurance will deter such behavior.  There is no empirical evidence to support either supposition.  Moreover, even *arguendo* if that constituted a legitimate concern, the competing public policy in fully compensating injured workers and the statutory mandate that there be coverage for any obligation incurred by an employer for injuries to his employee overrides any such concern.  That an insurer cannot contract out of its statutory obligations is well settled.  A policy exclusion "that conflicts with statutorily mandated coverage will not be enforced."  *Potenzone v. Annin Flag Co.*, 191 N.J. 147, 150 (2007).  As a matter of law, the C5 exclusion is unenforceable.  The trial court’s orders should be reversed, and summary judgment should be granted to plaintiff.
[brief] B.  The Supreme Court Did Not Rule on Roberto’s Rule 4:50-1  Issues  Appellees also insinuate that the Supreme Court in Roberto overruled the Appellate Division’s conclusions as to Roberto’s alternatively pled Rule 4:50-1 arguments.  It is correct that the Supreme Court found Tyler sufficient alone, and thus declined to adopt the Appellate Division’s Rule 4:50-1 analysis.  This is not reversing or overruling, and Appellees’ suggestion to this effect should be rejected by this Court.  The underlying nature of Appellants’ Rule 4:50-1(f) equitable arguments made herein are manifestly distinct from those raised in Roberto.  Appellants stand by their Rule 4:50-1 appellate arguments as made in their primary brief.  The Supreme Court’s reliance upon Tyler in the Roberto decision should not diminish Appellants’ Rule 4:50-1 arguments in this case.  CONCLUSION
[brief] ” (Pa96-98; Pa187-190).  The ordinance language cited by the Board as the basis for its decision requires that all buildings be designed as a united and comprehensive plan in order for multiple uses to be permissible on a single lot, but the cited ordinance language does not discuss any required relationship between different uses or structures other than buildings.  The Board and its professionals never had any questions or made any recommendations about site plan revisions with respect to how to make the site plan more united and comprehensive.  Further, the Board made no specific factual findings in [...] concerning how the proposed warehouse buildings and existing Cell Tower structure were not part of a united and comprehensive plan.  (Pa187-190).  Indeed, Plaintiff’s Application is not a new request to allow multiple uses on the Property.
[brief] The Court noted that [...] was presently a fulltime caretaker for his children while his wife worked.  (13T 11-11 to 17)  In reviewing [...]’s employment history, the Court noted that [...] was a high school graduate with a history of employment.  (13T 11-23 to 12-1)  [...] had been employed in the restaurant business as a bartender or a waiter for fifteen to sixteen years.  (13T 12-14 to 19)  He had also previously held jobs in construction and his most recent job was with a tree service.  (13T 12-14 to 14)
[brief] Id. at 340.  The expert’s improper testimony exceeding his area of expertise had the capacity to confuse and mislead the jury because the jury would not know where the witness’s expertise ended and his lay opinion began.  Ibid.; see also State v. Locascio, 425 N.J. Super. 474, 491-492 (App. Div. 2012) (reversing defendant’s convictions because the State’s forensic pathologist improperly testified outside his area of expertise by opining about the mechanics and movement of bodies inside a vehicle during an accident).
[directive] 5.2  Circumstances When BWC Activation is Generally Required.  Except as otherwise expressly provided in Section 7 or any other provision in this Policy, or by law, an officer equipped with a BWC shall be required to activate the device whenever the officer is responding to a call for service or at the initiation of any other law enforcement or investigative encounter between an officer and a member of the public, to include any of the following circumstances,2 unless there exists an immediate threat to the officer’s life or safety that makes such activation impossible or dangerous; in such situations, the officer must activate the camera at the first reasonable opportunity to do so and it shall remain activated until the encounter has fully concluded and the officer leaves the scene: (a) the officer initiates an investigative detention (e.g., a Delaware v. Prouse traffic stop, a Terry v. Ohio criminal suspicion stop, or a checkpoint or roadblock stop); (b) the officer is responding to a call for service and is at or near the location to which the officer has been dispatched;  Two or more of the below-listed activities are likely to occur during a single encounter or event.  For 2 example, a frisk ordinarily occurs after an officer already has initiated an investigative detention (i.e., a “stop”), and a custodial interrogation typically occurs after the officer has arrested the person being interrogated.  Although these specified activities often will co-occur and overlap, they are presented in this Section to ensure complete coverage of the circumstances when a BWC must be activated.  The specified activity that occurs first during an unfolding encounter will trigger the obligation to activate a BWC.  As explained in Section 5.3, once activated based upon the initiation of any of the listed police activities, the BWC generally must remain in operation until the police-civilian encounter is concluded (i.e., until the officer is no longer interacting with or in the presence of the civilian), and not just while the officer is engaged in the specified activity that required activation.
[brief] In fact, it could not do so.  It could not be “entirely fair” to the company for it to pay all of these members’ legal fees, particularly where those members held only 17.5% of the total interests.  Whether or not [...] held 29.5% and therefore was impacted the most by this self-interested vote, the members holding 52% of [...], who were even not parties in this action, also became liable for Plaintiffs’ legal fees by this vote as well.  Their equity dropped directly.  The Court instead made an effort to avoid the issue by finding that [...]’s expert had not established that this was self-dealing because he did not independently confirm the long-term liability was for Plaintiffs’ legal fees.
[brief] (1a).  In that Order, the trial court, among other things, denied [...]’ request to amend his complaint for environmental claims to name the successor entity that currently owns the property, [...] (hereinafter “[...]”), as the proper Plaintiff and also, dismissed the environmental claims against [...], [...] and [...] (hereinafter referred to collectively as “the [...]”) with prejudice.  These issues were largely addressed in paragraphs IV (pages 20-23) and IV (pages 24-27) of the Accompanying Statement of Reasons.  (see 20a-27a).  Appellant is only seeking reversal of the portions of the October 16, 2023 Order that dismissed claims against [...], [...] and Puglia Excavating, as well as denial of Plaintiff’s request to amend the Complaint.  Appellant seeks reinstatement of Appellant’s claims against the [...] and permission to amend the complaint to name [...] as the appropriate plaintiff.  No appellate review is sought with regard to the claims that were dismissed against the other Defendants.  Appellant respectfully submits that the trial court committed plain error by overlooking judicially noticeable facts in the record regarding procedural history of the case and posture of the interested parties, which clearly confirm that the environmental claims have never been heard.  Appellant further alleges that the trial court abused its discretion by misapplying the doctrines of res judicata, collateral/judicial estoppel and entire controversy doctrine to dismiss Appellant’s environmental claims against the [...], in light of the fact that these claims have yet to be litigated.  In addition, Appellant alleges that dismissal of the complaint and refusal to permit its amendment was legal error because the proposed plaintiff, [...], is a distinct legal entity that should not be disregarded and liability for the damages sustained by the Property will remain for every successor owner of that piece of real estate.
[brief] [...] thus essentially "acquired" the same set of rights that had been acquired by plaintiffs, and did so by using the information plaintiff had disclosed in the NDA.  Pa2536 ff.  As facts developed, plaintiffs came to learn that, after entering into an identical solar-rights and land-rights agreement with [...], [...] then proceeded to retain the two engineering firm that had been servicing plaintiffs' needs before the [...] and related proceedings.  Pa2550-59.
[brief] It's [...], I think, versus something where you can't start cutting away expert testimony, especially at trial.  We had no notice.  If you had a problem that we didn't have a respiratory therapist -- I'm now learning right now at trial -- that's not acceptable.  How can I prepare for that?  That is the surprise.  All these objections -- when was this -- they had multiple motions in limine and they never filed one as to this issue and now it's becoming very -- in my opinion -- obstruction -- we're stopped every single time.  If this was an issue, it should have been handled before discovery was over so we had the opportunity to rectify it, if we felt we needed to.  It wasn't.  5T154:10-155:11.  The trial court even acknowledged that a motion in limine should have been filed on the issue.  She stated: “I guess this wasn’t raised in front of [...] when she did all those other motions in limine, and I’m not sure why, because it wasn’t hidden. ”  5T174:9-12.  Nonetheless, the court barred the testimony.  By barring plaintiff’s expert witnesses from opining on the respiratory care given [...] because they were not respiratory therapists, the trial court failed to recognize that the experts did not have to be respiratory therapists to opine on proper respiratory care for [...] based on their extensive experience in that area.
[brief] *Id.* at 7.  Those factors were outlined as follows: 1. the declarant's connection to and interest in the matter reported in the out-of-court statement; 2. the person or persons to whom the statement was given; 3. the place and occasion for giving the statement; 4. whether the declarant was then in custody or otherwise the target of investigation; 5. the physical and mental condition of the declarant at the time; 6. the presence or absence of other persons; 7. whether the declarant incriminated or sought to exculpate himself by his statement; 8. the extent to which the writing is in the declarant's hand; 9. the presence or absence, and the nature of, any interrogation; 10. whether the offered sound recording or writing contains the entirety, or only a portion [or a] summary of the communication; 11. the presence or absence of any motive to fabricate; 12. the presence or absence of any express or implicit pressures, inducement or coercion for making the statement; 13. whether the anticipated use of the statement was apparent or made known to the declarant; 14. the inherent believability or lack of believability of the statement; and 15. the presence or absence of corroborating evidence.  *Id.*  Ultimately, the *Gross* court expounded that a prior inconsistent statement is admissible so long as there are "sufficient indicia of antecedent reliability."  Id. at 15.  The burden rests with the party offering the out-of-court statement to show its reliability by a "fair preponderance of the evidence."
[brief] You can’t walk on the right-of-way, you can’t walk on property owned by a railroad, except you could use a crossing, or where we intend you to be.  So now that’s only dealing with trespassing.  Subparagraph B then deals with those who are utilizing the property of the railroad.  It’s part of the same statute, 48:12-152.  The only logical way to read it is Subparagraph B then it’s trying to clarify Subparagraph A which applies on its face to property owned by a railroad and rights-of-way.  And maybe it could’ve been phrased a little better in Subparagraph 5...  Since the right-of-way is involved here . . .  I’m finding at a minimum, even if it’s only a right-of-way, then Subparagraph B(5) applies to the conduct of the plaintiff.  That’s the only way this – this – Subparagraphs A & B, which are intended to be read together, that’s why there’s Subparagraphs A & B, make any sense.  It is apparent from the above transcript excerpts that the motion Judge used the terms “right of way” and “railroad property” or “property” interchangeably.
[brief] Johnson held, without any prospective limitation, that “the decision to prevent defendant from reentering the parked vehicle, while unquestionably lawful, had legal \(^1\) Sb – State’s brief consequences, precluding the use of the narrowly drawn registration search exception. ”  *State v. Johnson*, 476 N.J. Super. 1, 27 (App. Div. 2023).  It makes sense that this unambiguous holding was not subject to any retroactivity analysis, because it was not a new rule of law.  The *Johnson* court was simply interpreting the scope of an exception that has been discussed for decades.  See *State v. Lark*, 163 N.J. 294 (2000) (holding that there is no independent exception to the search warrant requirement to locate a driver’s credentials).  The portion of *Johnson* that is a new rule of law based on modern technological developments and was given prospective application is that “police may not enter a detained vehicle under the authority of the registration search exception without first asking the motorist whether the registration is stored in paper form rather than in electronic form.
[brief] The Historical Advertisements  Defendants next suggest the trial court placed too much emphasis on the historical advertisements by [...] and [...] that mentioned “Surf Fishing” and “Surf Bathing” in finding that these advertisements “implied an intent to include an unwritten easement for owners of bordering lots to cross the [...] to the beach. ” (Db17).  This argument misunderstands the trial court’s decision.  The trial court recognized the [...] and [...] advertisements promoted use of the beach, making it “reasonable to infer” that “those benefits” “induced [[...]] to buy” the Premises as “laid out on the [1925 Plan].”  *Lennig*, 41 N.J. Eq. at 609.  Taken together, [...] and [...]’s advertisements marketing the use of the beach combined with the 1925 Plan showing the Premises abutting and contiguous to the [...] demonstrated to a reasonable purchaser that they would have direct access to the beach.  5.
[brief] ”  CA3.  [...] acknowledged that the Mid-Marriage Agreement was brought about by the affair [...] had – leading further to the concerns of coercion and unfairness that [...] noted and which [...] did nothing to guard against in simply rubber stamping the agreements he was being asked to enter against the defaulted [...], see also ABIGAIL WEIDEL, Plaintiff-Respondent/ Cross-Appellant, v. RICHARD A. WEIDEL, JR., Defendant-Appellant/ Cross-Respondent., A-3240-19, 2021 WL 5365655, at *7 (N.J. Super. Ct. App. Div. Nov. 18, 2021) (“regardless of how the amendment is styled, it bears the hallmarks of an unenforceable mid-marriage agreement.  Plaintiff was not represented by independent counsel and there was no credible dispute that there was no full financial disclosure”).
[brief] SUPERIOR COURT OF NEW JERSEY  APPELLATE  DIVISION  DOCKET NO.: [...]  ON APPEAL FROM: SUPERIOR COURT OF NEW JERSEY LAW  DIVISION  MONMOUTH COUNTY  Docket No. Below: [...]  Sat Below: Hon. [...], J.S.C. Hon. [...], J.S.C. Hon. [...], J.S.C. PLAINTIFFS-APPELLANTS’ REPLY  BRIEF [...]  [...], Esq.  (NJ ID#: 009192001)  [...]  [...], Esq. (NJ ID#:009192010)  [...]  [...], Esq. (NJ ID#: 907732012)  [...]  [...] [...]  Attorneys for Plaintiffs-Appellants, [...], [...], [...], and [...]
[brief] Further, the Court in Sims v. City of Newark, 244 N.J. Super. 32, 47 (1990), aptly explained: “[e]xistence of an alleged dangerous condition is not constructive notice of it. ”  However, concepts of reasonable care and negligence are pertinent to the consideration of whether the public entity had notice under N.J.S.A. 59:4-3(b).  See, Williams v. Phillipsburg, 171 N.J. Super. 278 (App. Div. 1979).  Additionally, prior accidents at the same location of the dangerous condition can create an issue of fact as to constructive notice.  Wymbs v. Twp. of Wayne, 163 N.J. 523, 536 (2000).  All competent evidence of record demonstrated the Township had no constructive notice of any alleged condition.  The trial court explicitly stated, “the record does not demonstrate that the Defendant Township had either actual or constructive notice of the alleged condition. ”  Plaintiff asserted no proofs as to any extent of time the condition existed.  Moreover, Plaintiff cannot even present competent proof as to what the actual defect was that is alleged to be a dangerous condition.  As such, it is impossible for Plaintiff to demonstrate any alleged defect to be of such an obvious nature.  The record is wholly devoid of any evidence illustrating the Township had any notice of the condition prior to Plaintiff’s incident.  Plaintiff testified that at no point, prior or subsequent to September 6, 2018, did Plaintiff inform the Township of the alleged condition.  [Pa71, ¶ 28].  Similarly, all previous reports of conditions on the Subject Property were reviewed and marked as completed, meaning any necessary repairs were performed.  [Pa71, ¶ 30-31].  Further, the undisputed material facts demonstrate no similar incidents that occurred at the site of the subject accident.  The Township received no written or verbal notice prior to the incident of any outstanding issue in the parking lot.  [Pa71, ¶ 30].  Therefore, the trial court properly concluded the Township had no notice, actual or constructive, of the alleged condition and it is respectfully submitted this matter should be affirmed as Plaintiff failed to overcome the stringent requirements of the TCA.
[brief] ”  *Croft v. Westmoreland Cnty. Child. & Youth Servs.*, 103 F.3d 1123, 1126 (3d Cir. 1997).  Because the Parental Secrecy Policy presumes that parents will harm their children if told the child is asking to be socially transitioned at school, it is not narrowly tailored to the prevention of child abuse.  *Id.*; see also *Ricard*, 2022 WL 1471372, at *8 (holding parental secrecy overbroad “because it prohibits the disclosure of preferred name and pronoun information to parents without any assessment of whether disclosure would actually post a risk” of harm to the child); *T.F.*, 2023 WL 6544917, at *8 (holding school’s actions in socially transitioning child without parental consent was “not narrowly tailored because there [were] not the necessary procedural protections in place that are necessary to override a parent’s choice of how to . . . treat their child”).
[directive] In addition to the centralized filing system, the law enforcement agency must have reports to collect the detailed information for all property on a case specific basis.  Most agencies currently use some form of a property/vehicle report based on the LEIRS 2 system.  Each agency should carefully review its form to determine if improvements can be made.  Property reports should include, at a minimum, the following information:  1.  Incident report number.  2.  File number.  3.  Date property is received, confiscated, turned into headquarters, etc.  4.  Date of the loss or theft of property.  5.  Indication whether the property is stolen, lost, found, seized as evidence, recovered or held for safekeeping.  6.  Storage location.  7.  Name, address, and phone number of the person who found the property or was in possession of the property.  8.  Owner's name, address and phone number (if the owner of the property is different from the person listed above).  9.  Location where property was recovered, found or confiscated.  10.  Item number and full description of each item, including: a.  Make, model, serial number and owner applied number.  b.  Quantity (estimate if necessary).  c. Value (estimate if necessary).  d.  Vehicle make, model, year, body type, color, registration number and state, and vehicle identification number (VIN).  11.  Signature of person completing the report.  12.  Chain of custody record.  The following entries should be made each time property is transferred from one person to another:
[brief] In [...] v. Board of Trustees, Police and Firemen’s Retirement System, 311 N.J Super 333 (App. Div. 1998), [...]’s denial of ordinary disability was reversed by the Appellate Division.  On September 22, 1992, more than four years after [...]’s last contribution, the [...] sent him a letter stating that he had to return to work by November 22, 1992, or his pension account would expire.
[brief] [...]’s attack on the Award hinges on the clearly erroneous contention that the Arbitrator exceeded his powers under N.J.S.A. 2A:23B-23(a)(4) via “several blatant errors,” which boil down to [...] simply being discontent with the Arbitrator crediting [...]’s interpretation of the PTA over that of [...]’s.  App. Br. at 7; see ERG Renovation & Constr., LLC v. Delric Constr. Co., Inc., 2015 N.J. Super. Unpub. LEXIS 58, at *22 (App. Div. Jan. 12, 2015) (“[D]issatisfaction with the way the rules were applied or the ultimate result does not establish that the arbitrator exceeded his powers and is simply not a sufficient basis to vacate his award. ”), at Pa051; see also Withum, Smith & \(^7\) https://www.adr. org/about-us (emphasis added).  Brown v. Coast Auto. Grp., Ltd., 2012 WL 489020, at *4 (App. Div. Feb. 16, 2012) (“defendants confuse the arbitrator’s authority to render an award with the basis for that award”), at Da563.  However, [...] does not assert that the Arbitrator evidenced impartiality, entered his Award through corruption, fraud, or undue means, determined issues not submitted to him, or otherwise prejudiced [...].