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The New Jersey Appellate Division has just released a decision finding that there are different understandings in Halacha, and therefore a religious person can't automatically argue in court that other religious people share the same "knowledge of Halacha."

Ringo, the defendants' miniature bull terrier, bit the plaintiff while he was in the defendants' house. A Superior Court judge previously denied summary judgment on liability based on New Jersey's dog-bite statute, finding that his knowledge of Hilchos Yichud sufficiently created "an issue of material fact" regarding whether he was lawfully on the premises.

However, the Appellate Division has now disagreed and reversed this judgement.

The matter began when a husband and wife asked a 35 year old single woman to house-sit for them and to care for their dog for two weeks while they vacationed out of the country. All parties are members of the Orthodox Jewish community.

The wife expressly told the woman that a certain mutual friend could visit her while she was house-sitting. She did not tell her she was forbidden from having other visitors.

Toward the end of her house-sitting assignment, the woman invited a male friend over to the house. She texted him that she was "dog-sitting," "kind of stuck here," and would "love to have visitors." He came over a few days later and he was at the house for approximately one hour. 

After playing with the dog for forty-five minutes, he told her he was "exhausted" and "needed ten minutes somewhere to put his head down alone . . .." She told him to go "upstairs to the first room" and "lie down on the bed" and she would wake him up in ten to fifteen minutes. 

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

The man filed a lawsuit in which he alleged he had been invited to the house by their "employee, agent and or dog sitter" and was "lawfully present" in their house when defendants' dog "repeatedly bit" him, proximately causing him to sustain "severe and permanent injuries," as well as other damages, and therefore the homeowners were strictly liable under State Statute.

To recover under the statute, a plaintiff must prove: (1) the defendant owned the dog; (2) the dog bit the plaintiff; and (3) the bite occurred while the plaintiff was in a public place or lawfully in a private place, "including the property of the owner of the dog."

In his Motion for Summary Judgement, he argued he had satisfied the statute's three elements because defendants owned Ringo, Ringo had bit him, and he had been a lawfully-present guest in their house. 

The couple conceded that he had met the first two elements of the statute but argued that a fact issue existed as to whether he was a trespasser because based on his knowledge of Hilchos Yichud, he could not reasonably have believed he belonged in their home alone with the unmarried woman or in the upstairs bedroom.

The couple explained to the Court that they were "all observant Orthodox Jews" and "Orthodox Jewish Law strictly prohibits unrelated single men and single women from being alone together in a secluded location, like defendants' home, unchaperoned."

The court delved into the matter by asking all the parties how they understood Hilchos Yichud. 

The man argued that Hilchos Yichud is 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 . . ."

He noted that in this case, the front door was left open and "someone could have easily walked in and [said], 'Hey, you left the door open' . . . and they would have seen that there [was] absolutely nothing going on." He added that he believed it was "imminently possible" someone might come over to the house while he was there because she was "very lonely," "wanted to have some company," and "has other friends." He understood she had "invited people to come and [he] didn't know if the neighbors might show up at any time."

Additionally, he argued that he believed that if the dog bite had not happened, the couple "would not have cared" if he was taking a nap in an upstairs bedroom while he and her were in the house alone.

The judge denied plaintiff's motion, holding that while the couple did not specifically limit the people the woman could invite to the house while she was house-sitting and that she had extended an invitation to the man, nevertheless,"his knowledge of Jewish law raises a triable issue regarding [his] reasonable interpretation of the invitation extended to him, and he could have known that the scope of the invite was heavily limited, or entirely invalid."

The Appellate Division has now reversed this decision, saying that they disagree that the man's "knowledge of Hilchos Yichud" created a genuine issue of material fact as to the third prong of the dog-bite statute and, thus, they found that the trial judge erred in denying plaintiff's summary judgment.

In his appeal, the man contended that he lost his motion simply because he is an Orthodox Jew. He argued that he had satisfied all legal elements of the dog-bite statute and the judge erred in denying his motions simply because he confused the issue of whether his presence in the home was lawful with the question of whether it was moral under Jewish law, an irrelevant consideration under the dog-bite statute.

The 3-panel court unanimously agreed, writing in their just released decision,

"The motion judge denied plaintiff's motions based on defendants' argument that the parties' shared customs and religion raised a genuine issue of material fact as to whether plaintiff reasonably believed the invitation permitted him to be where he was when Ringo bit him.

"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 the woman's invitation was "heavily limited, or entirely invalid . . . ."

The court cited case law involving a Hilchos Kashrus dispute in which the Court found that people simply sharing a religion does not establish they have a common understanding and practice of all tenets of that faith. In that case, the Court rejected suggestion of "universal agreement" in Judaism regarding the preparation and sale of food and recognized "there is considerable disagreement over what precepts or tenets truly represent the laws of kashrut."


"In the instant case, 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 the man knew or should have known that the homeowners had a different understanding and interpretation of Yichud than he had.

"As such, the homeowner's 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 the woman'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," the judges concluded.

The matter is now remanded back to Superior Court for proceedings consistent with this opinion.

(From a review of their decision, it appears that the court would agree that a "shared knowledge of Jewish Law" could be upheld in court. The issue in this instance is that they did not have a "shared knowledge of Jewish Law." Therefore their knowledge of Jewish Law is insufficient to use as a basis to say that there are issues of material fact.)

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Anonymous said...

What's their shared understanding regarding Hilchos Erka'os and Hilchos Gzeilah?

Anonymous said...

Anon 9:04,
Their shared understanding is that it is okay to sue in court in this type of situation.
What they don’t share is an opinion about the home/dog owner’s liability to the injured individual.

What’s so shver?

Anonymous said...

There's an insurance company involved.
That's the real party in interest.