While not my usual blogging fare, a recent case dealing with a discrete issue of Jewish law arising in the context of a dog bite case caught my eye because of its potential applicability to all areas of the law, including divorce.

The star of the show in the Appellate Division decision, Joseph Bernstein v. Martin Nossel, et. al., was a mini-bull terrier named Ringo. While Ringo’s owners, the Nossels, were out of the country on vacation, they asked Sarah to dog-sit for Ringo in their home.

For reasons that will later become apparent, the Appellate Division described Sarah as not married, and about 35 years old.

While the owners specified that Sarah could invite a mutual friend named Judy to visit with Sarah in the home while they were away, they did not prohibit other visitors. During the stay, the presence of others were discussed between Sarah and the Nossels, indicating that visitors were not limited in any way.

During her dog-sitting stint, Sarah invited the Plaintiff, Joseph, to the Nossel’s home. Joseph accepted the invitation. At some point during his visit, Joseph decided he was tired and went to lay down in an upstairs bedroom while Sarah walked Ringo. Upon the duo’s return, Sarah went upstairs to rouse Joseph, whereupon Ringo jumped on the bed and bit Joseph’s foot, resulting in a broken toe and “blood all over the place.” Joseph was taken by ambulance to the hospital, where he had surgery and stayed for several days.

Joseph brought a lawsuit against the Nossels under the dog-bite statute, N.J.S.A. 4:19-16, which requires a plaintiff to prove the following to recover damages related to a dog bite: (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.” 

If you know Jewish Law, you can spot the issue: Yichud, or the prohibition against an unrelated, single man and single woman from being alone together in a secluded location.

While certainly Joseph could prove the first two elements of the statute, the Nossels advanced an argument that Joseph was not lawfully in a private place because Jewish Law would have prohibited such a possibility. The Nossels stated that, according to Jewish Law, the third element of the statute could, therefore, not have been met.

In response, Sarah argued that Yichud is a gray area of 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.”

Plaintiff, who came to Orthodox Judaism later in life, but studied at prestigious Jewish institutions, including the Mir Yeshiva, agreed with Shore, stating that 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 . . . .” 

Joseph filed a Motion for Summary Judgment, requiring the trial court, on a pre-trial motion, to determine whether the evidence submitted by the parties, together with all legitimate inferences favoring the non-moving party, would require a decision of the issue in the context of a trial. A trial would be appropriate only if there is a genuine issue or dispute concerning a material fact in issue.

The trial court denied Joseph’s Motion for Summary Judgment, based upon the third element of the statute, and agreed with the Nossels, finding that “[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.”

The Appellate Division, however, disagreed with the trial court, and examined the interpretation of the statute under secular law, rejecting the notion that the dispute over the interpretation of Orthodox Jewish Law could create a genuine issue of material fact.

In reversing the decision, the Appellate Division found:

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.   

While the Appellate Division’s decision was related to a discrete issue of Jewish Law, Yichud, it could have wide-ranging implications in other areas of the law as well.

I anticipate possible invocation of this case in scenarios that often arise in my divorce/family law practice.

For example, parents may specify in a Marital Settlement Agreement that the children are only to keep kosher in their parents’ homes. That begs the question: what is “kosher”? Some kosher certifications are disputed among members of the same Jewish denomination. Some certifications are even among members of the same family! It would be impossible for a court to sift through religious doctrine to make a determination about which practice is more “legitimate” or which kosher is more kosher.

Similar arguments may arise in the context of Sabbath observance. For example, some Orthodox Jews do not carry items out of their home on the Sabbath, even where there is an eruv present. If a father is willing to carry items out of the home with an eruv present and the mother holds that there can be no carrying under any circumstance, does that mean the father is transgressing his agreement to keep the Sabbath while exercising parenting time with the children? I imagine there would not even be consensus on that dispute among rabbis, let alone a secular court.

The examples are limitless, as are the potential interpretations of Jewish law, which is precisely the reason that secular courts cannot adjudicate these matters. The fact that individuals share a religion does not give rise to a conclusion that they share identical practices or even perceptions of the basic tenets of that religion.

As a result, those seeking to have Jewish Law applied to their matters may consider alternative venues, such as Rabbinical Court, where they could agree for their disputes concerning Jewish Law to be adjudicated.   

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