The Volokh Conspiracy

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Religion and the Law

Beware of God

Four Jews (and a dog), but apparently only two opinions.


In Bernstein v. Nossel, decided yesterday by New Jersey intermediate appellate court (Chief Judge Carmen Messano and Judges Katie Gummer and Lisa Perez-Friscia), plaintiff was bitten by Ringo, defendants' dog, while plaintiff was visiting defendants' house for about an hour. Plaintiff had been invited to visit by the defendants' dogsitter, Ms. Shore, who was staying in the house at defendants' invitation for two weeks.

Now under New Jersey's strict liability dog bite statute, defendants wouldn't be liable if plaintiff was a trespasser; and defendants argued that plaintiff was a trespasser for an unusual reason:

Defendants … argued … [that] based on plaintiff's faith and his knowledge of defendants' faith, he could not reasonably have believed he belonged in their home alone with Shore or in the upstairs bedroom…. [D]efendants asserted … that the parties and Shore were "all observant Orthodox Jews" and "Orthodox Jewish Law strictly prohibits unrelated single men and single women, like [p]laintiff and Ms. Shore, from being alone together in a secluded location, like [d]efendants' home, unchaperoned." [This prohibition is apparently called the law of Yichud. -EV] …

Defendants are observant Orthodox Jews. They knew of plaintiff "as part of our community" but had never spoken with him….

Shore has been a practicing Orthodox Jew for most, if not all, of her life. Shore viewed Yichud as a "very gray area" in Jewish law that allows an unrelated and unmarried man and woman to be "in the same vicinity, in the same house or the same room" "as long as someone is able to come in and see what is going on … and as long as there's not an extended period of time that [they] are in the same room …." Shore understood that "as long as someone is able to walk into the house it's okay to be in the same house." Shore believed that if the dog bite had not happened, defendants "would not have cared" if plaintiff was taking a nap in an upstairs bedroom while she and plaintiff were in the house….

Plaintiff understood an unrelated and unmarried man and woman could be alone behind closed doors "if it's daytime and [they] know that someone might show up at any time," like if "[s]omeone could knock on a door or someone could just walk through the door … if it's possible that someone is going to come intervene, it's probably not a problem …." In the Tsfat and Isralight programs [in which Plaintiff had studied Judaism], male and female students could be alone and unchaperoned in a room with the door shut during the day.

Plaintiff had not met defendants and did not know they were members of the Orthodox community before he visited their house on October 26, 2019. He knew their home was located in a community populated by "a large amount of Orthodox Jews" and from what he had observed about the house, had the impression an Orthodox Jewish family resided in it. Plaintiff did not believe it was a problem for him to visit Shore at defendants' house because "anyone can knock on the door at any time and … it was broad daylight." He also "trusted [Shore]'s judgment that it was okay to come visit her … [b]ecause she was the one who was possessing the house at the time." He did not feel defendants would have been unhappy with him for taking a short nap [by himself] in the upstairs bedroom….

The trial judge denied plaintiff's motion for summary judgment:

The judge … held defendants had not specifically limited the people Shore could invite to the house while she was house-sitting and that Shore had extended an invitation to plaintiff. Nevertheless, as to the third prong, the judge referenced Yichud and found "[p]laintiff's knowledge of Jewish law raises a triable issue regarding [his] reasonable interpretation of the invitation" extended to him. The judge concluded plaintiff "could have known that the scope of the invite was heavily limited, or entirely invalid."

No, said the appellate court:

The problem with defendants' argument is that it is premised on an assumption and defendants' conclusory assertion that because the parties are Orthodox Jews, they share customs that put plaintiff on notice that Shore's invitation was "heavily limited, or entirely invalid …." That people share a religion does not establish they have a common understanding and practice of all tenets of that faith. To the contrary, the record demonstrates as to the custom at issue, Yichud, the parties did not have a common understanding or practice. Based on his understanding and practice of Yichud, plaintiff reasonably believed the invitation permitted him to be where he was when defendants' dog bit him. Nothing in the record demonstrates plaintiff knew or should have known defendants had a different understanding and interpretation of Yichud than he and Shore had.

Defendants' broad assertion that because he is an Orthodox Jew, plaintiff knew or should have known how defendants understood and practiced Yichud is not sufficient to create a genuine issue of material fact regarding plaintiff's reasonable understanding of Shore's invitation or his lawful presence on defendants' property. Accordingly, the judge erred in denying plaintiff's motions for summary judgment and reconsideration, and we reverse the orders denying those motions.

Congratulations to Neil Weiner and Joseph Cerra (Lynch Lynch Held Rosenberg), who represent plaintiff.