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.

Comments

[John F. Carr]

This reminds me of the cases about whose invitation police can rely on to make a warrantless search of a house.

It must be unusual for a dog bite case to be worth enough to take to an appeals court.

[Mr. Bumble]

Would this normally be covered by homeowners insurance?

[Ruqt]

Most states permit insurers to exclude breeds and many insurers exclude pit bulls. I noticed a reference to average dog bite claim: $40,000+. I once had an insurance company ask to “measure” a house in New Jersey and a formally dressed woman showed up and it became evident that she wanted to check out my dog, an uncommon breed. She pet him and left.

[Dr. Ed 2]

If there actually is $40,000 in injuries from a dogbite, it raises 8th Amendment questions about use of police dogs.

[Noscitur a sociis]

How? Are there places where people are being sentenced to be bitten by police dogs?

[Gandydancer]

Averages are notoriously highly affected by outliers. What is the MEAN claim?

[SRG]

Median, surely?

[Gandydancer]

Sorry, right. My unused math degree has disappeared into the mists of time and of my brain.

[Magister]

All of the internet search results I could find referenced averages rather than medians, maybe because it’s more impressive.

Comparing various search results for only slightly more authoritative than back-of-envelope computation: the number of dog bites in the US per year appears to be around 5 million; less than 20% require medical care; less than 30,000 require reconstructive surgery; only around 50 result in death. But those latter two categories probably significantly skew the average, and dividing the $900 million paid out by a $45K average claim suggests claims numbering only 20,000.

[Archibald Tuttle]

Under NJ law, isn’t it true that no trespass occurs until the person is asked to leave and refuses?

[hoppy025]

Not if he knowingly enters a place he’s not allowed to be.

[Gandydancer]

What makes you think so?

I recall that Ahmaud Arbery was a trespasser because the property he trespassed on was posted. (Probably, though there seems to have been unchallenged testimony to the opposite at trial.) ‘Course, that was GA.

[David Nieporent]

Weirdly, you misremember facts in precisely a way that makes the black person look bad. And then you accurately remember that the actual sworn testimony was to the contrary… but you ignore it, because, hey, Arbery was black.

https://www.youtube.com/watch?v=ReYyiMLOOEE

[Gandydancer]

No, I dispute it because (a) the owner declared in a 911 call the previous December about a previous Arbery intrusion that the property was posted and (b) after the shooting he told the Daily Mail that the property was posted before the shooting. That article showed a picture of a No Trespassing sign on the Port-a-Potty which, if it was present on the day of the shooting, ought to be visible in the security camera footage of Arbery’s trespass from across the street.

But the McMichaels’ attorneys seemed to be trash and AFAIK didn’t educate themselves about such details OR QUESTION MR. ENGLISH ABOUT THE DISCREPANCIES. What your video shows is that the prosecution was aware that this was an issue… but as far as I followed it the defense attorneys seem to have sat there with their thumbs up their butts. Yes, I think perjured testimony likely took place. But I haven’t got a smoking gun, merely a strong suspicion backed by their apparent inactivity.

Given the invented doctrine of immediacy (an instruction also not contested by the defense attorneys despite having no basis in the statute) and the fact that no actual citizens arrest ever took place it ought not matter, but it is what it is.

And, btw, despite Arbery being black, I think his trespasses were probably merely to get a drink of water on his jogs and to look around. But he did have self-control problems.

[Voize]

Intentional entry onto property without either explicit or implied permission is a trespass. Notice or posting may also make it a criminal trespass.

[Gandydancer]

Thank you for making the distinction. A misdemeanor in the Arbery case, authorizing citizen’s arrest if there was immediate knowledge of the offense (which Greg McMichael only had by video, and Roddy Bryan not at all). But then there was a century-old judge-inserted requirement of “immediacy”…

[Childhood reader of SCOTUS opinions, really]

No, if person shows up at midnight in the front room that is “Please shoot and kill me” material 🙂

[Dr. Ed 2]

Why no countersuit against the dogsitter for negligence in admitting someone whom the dog bit.

[Voize]

Yes, the dogsitter could have taken a nibble first to check for excessive tastiness.

[Gandydancer]

Presumably this IS a countersuit to attempt to squelch a large damage claim. Maybe required by an insurance company.

A no-hoper, though. The defendant couldn’t possibly know the parents were (if they were) stricter than their daughter’s schul.

But, hey, betting on getting bad kritarchs is never really a NO-hoper.

Do we believe this “nap” story?

[John F. Carr]

Do you mean a third party suit? Three possibiities:

1. The dogsitter is covered by the homeowner’s insurance.
2. There is no persuasive evidence of negligence. The owner of a dog is subject to strict liability for dog bites. The caretaker is not.
3. The dogsitter does not have deep enough pockets.

[Gasman]

Imagining an Onion story:
Man with scrotum bitten by dog while ‘napping’ in girlfriend’s bed mystified by the complete lack of bite marks on his trousers. Hopes her father is similarly baffled.

[Gandydancer]

That his wobbling scrotum posed an irresistible temptation to the dog certainly sounds like a better defense against damages than that he should have known that he was trespassing.

[Purple Martin]

“Beware of God”

Almighty Dog

[John F. Carr]

“Four Jews in a house (to say nothing of the dog)”

[Scribe]

1. This is an interesting case, but it is not binding precedent. That’s the meaning of that “Not for Publication Without the Approval of the Appellate Division” text box on top of the first page. The “limited” uses to which it may be put are very “limited” – the court rule cited (R.1:36-3) pretty much deprives it even of being called “instructive”.
So, it’s worth discussion, but don’t rely on it.
2. This was an appeal on leave granted from denial of a summary judgment motion. To give an index of the Appellate Division’s take on how far afield the trial judge went to reach the “deny summary judgment” result, taking an interlocutory appeal to the App. Div. from a denial of summary judgment is usually wasted time, effort and paper. By way of comparison one has better chances getting an interlocutory appeal in the federal system where it’s NOT one of the exceptions bundled up in the collateral order doctrine. In other words, next to no chance at all. So, conclude this: dragging the parties’ Jewish faith into it was pretty obviously an insurance defense tactic to both milk some billable hours for the defense counsel and further delay paying a plaintiff who will win. The trial judge bought into it for … no good reason, and it reflects badly on that judge.
3. Having previously practiced plaintiff’s and defendant’s personal injury law in NJ for more years than I have fingers to count on, I can tell you that when a plaintiff comes in with a dog bite case, plaintiff’s lawyers sing Hosannas. This is a sure payday if there’s any kind of skin-breakage in the injury. Which there was here.
By way of comparison, going on 25 years ago a colleague had a dog-bite case where a girl about 6 or 7 years old had a minor nip on the face. But she worked as a commercial actress (and had an extreme stage mother). I don’t recall that we were able to definitively link any loss of work to the dog bite. The stage mother’s demeanor and behavior were to my eye far more likely to harm her daughter’s employment prospects. But regardless, we were able to get a cool $250k settlement without a trial.
4. This plaintiff had a broken bone, extensive bleeding, (broken skin from the dog bite) and spent several days in the hospital. Anyone who has been in the health-care system lately knows how loath hospitals are these days to keep anyone in the hospital overnight, let alone for several days. This guy must have been really injured or had some serious complications (threaten). Spitballing, this could be a $500k case if the length of the hospital stay is any measure of how serious was his injury.

[perlmonger]

That’s quite a dog bite.

[Scribe]

Go read the case. It’s a pretty serious injury:

“Shore took the dog for a walk. When she returned, she went upstairs to wake plaintiff. While plaintiff was still on the bed, the dog ran into the room and jumped on the bed. Plaintiff stood up, and the dog clamped its mouth onto plaintiff’s foot, shaking it back and forth. The dog bit through and broke plaintiff’s phalanx bone and his second toe, and “there was blood all over the
place.” Plaintiff subsequently was taken by ambulance to a hospital, where he had surgery and stayed for several days.”

Bitten. At least 2 broken bones. Blood. Ambulance ride. Surgery. Several days in hospital.

Easily could go $500k, at least for a demand.

[MitchJH]

Plaintiff: Ah did not have Yichud with that woman.

[SRG]

LOL!

[ReaderY]

I suspect the religious policies of a community might sometimes be relevant, in an appropriate case, to establishing background expectations about who is permitted entry. But I agree this is not that case.

[Narishkite]

Orthodox Jew (and lawyer) here. A few thoughts:

1. The notion that yichud (seclusion) is prevented when someone might knock on the door is baseless–that is, to the best of my understanding, no one who is reasonably knowledgable on the topic would think that there was no yichud here. To avoid yichud under these circumstances, there has to be a concern that someone will come in, without knocking, at any time.

2. Plaintiff could easily have come into the house, even alone, without yichud. One way would have been to leave the door ajar (or at least unlocked) and invite someone else to come by, specifying that he need not knock but simply come in. Whether that other person actually shows up or not, this prevents yichud.

3. The fact that plaintiff could theoretically have made himself a non-trespasser by such measures is probably legally irrelevant (in the counter-factual where the court accepted the argument that yichud did make him a trespasser). But it highlights how technical the argument is here, and unrelated to the biting. On the other hand, maybe the dog is fully knowledgable about yichud, zealous in its enforcement, and only bit because of the violation. Shame that we won’t get to hear that testimony now that summary judgment is being entered.

[Andrew Dhuey]

Quibbler on the woof.