Wednesday's Weird But True Legal Cases - Vol XXXVII

Tonight's weird (but true) legal case analysis asks the question - can a bouncer who was injured trying to keep people out of a New Year's Eve party recover damages against the party promoter?

In the case of Vetrone v. Ha Di Corp., 22 A.D.3d 835, 803 N.Y.S.2d 156 (2d Dept. 2005), the Appellate Division dealt with a matter in which a security guard was injured when angry ticketholders were denied entry to a New Year's Eve party. As discussed by the court in its decision, in December 2000 a restaurant entered into an agreement with a 19 years old and two of his friends, to organize and promote a New Year's Eve party at the restaurant. The organizer and his friends prepared promotional materials and sold a number of advance tickets for the event, and were to receive $20 for each $65 advance ticket sold. Although the organizer could not recall the precise number of advance tickets sold, he testified without contradiction that he and his friends received between $3,900 and $4,200 for advance ticket sales, an amount corresponding to profit on the sale of between 196 and 210 prepaid tickets.

The organizer then told the restaurant owner that there would be a large number of guests, and both agreed that it would be necessary to hire security. As a result, the plaintiff Stephen Vetrone and another individual were hired to provide security for the event.

On the night of the party, notwithstanding the large number of prepaid tickets sold, the restaurant also admitted non-ticketholders at the door for $100 per person. At approximately 11:30 P.M., the owner was informed by his staff that there were 130 to 140 patrons in the restaurant, and he decided that the establishment was “overcrowded.” He therefore directed Vetrone not to allow anyone else to enter. At that time there were still approximately 50 to 100 people, including many prepaid ticket holders, standing outside, with approximately 30 to 40 of them waiting in line at the door. According to Vetrone, an unidentified associate of the organizer yelled at the crowd from inside the restaurant, cursing and telling people that they should go home and that no one else would be admitted. The crowd grew agitated and, when Vetrone tried to close the front door, one of the prepaid ticket holders who had been standing in the doorway, refused to move out of the way and attempted to walk past him. Vetrone physically blocked his path and a scuffle ensued during which Vetrone allegedly sustained injuries after he was attacked by individuals in the crowd. The police intervened and closed the restaurant for “apparent overcrowding and underage drinking.”

In discussing the possible liability of the promoters and restaurant owner, the court noted that

There was evidence that [the organizer and his associates] knowingly sold tickets to a significantly greater number of people than the venue could accommodate, and were physically present at the premises helping to control the event when the incident occurred. Moreover, [] the owners of the restaurant, knew of its 150-person capacity, yet not only permitted [the organzier] and his associates to sell prepaid tickets to far more individuals than the restaurant could accommodate but also admitted non-ticketholders at the door.

The court then concluded that

Vetrone, who was present because he was hired as a security guard for the New Year's Eve party, reasonably had the right to expect that [] the event's organizer and promoter, and [] the restaurant's owners, would not so overbook the event as to require him, acting virtually alone, to face a large crowd of angry ticketholders who paid to attend the party, but were unexpectedly and rudely denied entry and told to go home. Nor do we agree with the organizer [] that, in effect, he owed no duty to Vetrone because, as a security guard, Vetrone necessarily assumed the risk that the event would be so overbooked as to put him in the position of having to face and turn away this large crowd seeking entry on the basis of prepaid tickets.

One other interesting point was that the defendants tried to argue that it was not foreseeable that "when, only a half-hour before midnight, a large number of people were roughly and without explanation refused entry to a New Year's Eve party for which they had already paid, some in the group would become unruly and even violent."

The court's holding dispelled this argument, as the court stated that:

[U]nder circumstances of this case, we cannot conclude that, as a matter of law, the assault upon Vetrone as he tried to close the door of the restaurant on a crowd of people holding prepaid tickets was far removed from, or an unforeseeable consequence and independent of, the conduct of the [organizer and restaurant owner], in negligently overbooking the event and in then directing the unceremonious denial of admission to this large crowd of people who were there to attend a New Year's Eve party for which they had already paid.

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Tuesday's Thoughts on the Daf - Bava Kamma 2

Today the daf yomi cycle began its study of Seder Nezikin (probably best translated as the tort laws). However, before getting into Bava Kamma, I would like to first say over a quick vort which I heard last night at a siyum on Seder Nashim.

During the siyum, R' Dovid Spiegel said a vort in the name of the Vilna Gaon on the word Siyum. The letters of this word are all letters whose extensions are equal to the principle number. Samech is spelled Samech (60) Mem, Cuf (40 +20). Yud is spelled Yud (10) Vuv, Daled (6+4). Vuv is spelled Vuv (6) Vuv(6) and Mem is spelled Mem (40) Mem (40). R' Spiegel related that the nigla (revealed) portion of the letters is equal to the nistar (hidden) portion of the letters.

R' Spiegel then said that when making our siyum, our spouses who have stood in the background and supported us in the learning efforts get credit for our learning as well. I certainly owe my wife for my 11+ years of Daf Yomi. Besides letting me learn out five nights a week, she also was there to remind me that I needed to the daily daf when I was coming home routinely after 11 PM earlier in the my legal career. To this I say, the reward is yours too.

But on to Bava Kamma. One interesting point which I wanted to discuss is a Rashi which explains the concept of Keren (horn), one of the Avos Nezikin. The gemara quotes a number of pesukim which support the concept that keren is one of the Avos Nezikin. The gemara asks on 2b, why do we even need pesukim - isn't it obvious that an ox which gores is a category of Nezikin? The gemara answers that the pesukim are there to teach that the difference in financial penalties for damage caused by an ox which is tam (1/2 nezek) or mu'ad (full nezek) is applicable, regardless of whether the ox gored with an attached or a detached horn.

But how does an ox gore with a detached horn? Rashi (d'h Ella) explains that the case of detached horn involves an ox which picks up the detached horn in its teeth and uses that horn to gore. I might have thought that only in such a situation would there be a difference between tam and mu'ad (but not where an ox gores with its attached horns). Therefore the gemara uses the pesukim to teach that the varying degrees of penalty apply in both scenarios.

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Max Kellerman's Monday Musings Vol XXXVI - Mangenius No More

Today's Max Kellerman show served largely as a post mortem for the Jets 2008 season. During the limited time in which I was able to listen to the show today, Max methodically broke down the Jets season, albeit without gloating that the Jets were eliminated while the Giants have moved on to the post season. (The actual gloating was reserved for the Cowboys as Max and the crew of the program at one point in the show indicated that they were "taking a break from Mangini to have a hearty laugh at Tony Romo and the Cowboys." And then they all actually laughed before returning to the Jets). The following is my take on the portions of the show which I was able to listen to today.

The Kellerman show actually started late as the Jets had the audacity to schedule the Woody Johnson/Mike Tannenbaum press conference for 10 AM, causing 1050 ESPN Radio to preempt the start of the show to carry the press conference live. When Max was finally given a chance to speak, he started with the statement that "on paper" the Jets were better off with Favre than Chad Pennington because Favre had a better history of staying healthy and had superior arm strength to Chad. But the games aren't played on paper (my line not his) and in Max's assessment, Chad had a better season then Brett Favre and also managed to stay healthy. Thus the decision turned out to be a poor one as Favre's arm strength diminished and he made poor decisions under pressure, causing some of the interceptions.

At this point, I need to take my leave of the Kellerman and Crew take on Favre as the show (and Robin Lundberg in particular) were a little too quick to say that all of Favre's INTs came from poor decision making. When a ball sails through a receiver's hands, is tipped up in the air by the receiver or is thrown to a spot on the field but the receiver breaks off his route early, its not a poor decision. Yes Favre certainly threw his share of "funballs" (to use a Lundbergian term) but quite a few of the picks were not the result of a bad decision.

Max also had some praise for the Jets, specifically related to the free agent acquisitions. Max talked about how Tannebaum had built the team with solid defensive additions as well as by addressing the offensive line. He even admitted what most Jets fans are probably thinking - that at the time the Favre pick up was a good move, but in retrospect it was a mistake.

I missed some of the shows last week, so I am unaware whether Max had his annual rant about how he disliked Chanukah as a child because his gentile friends all got great presents and he had book night or sock night. (Don't even get me started on the over commercialization of Chankah and why people assume there should be eight nights of presents - the miracle was that the oil lasted and that a small band of Jews were able to best the Syrian Greeks. There are no presents in the story nor in any Code of Jewish law, but I digress). Max did mention today (in response to a question from Giants' DL Justin Tuck) that it was his daughter's first Chanukah and that he "has not been able to demoralize her with sock night or book night." Part of me wonders whether this is all for show.

The firing of Mangini and the discussion on the show about how when the Jets were 8-3 Mangini was Mangenius, but by the end of the season he was (to quote Steve Serby of the NY Post) "Cangini" has an interesting link to today's daf yomi. On the last page of Talmud Kiddushin (82 for those of you keeping score at home), the Gemara talks about various trades or occupations which one should or should not teach one's child. One of the Tannaim mentioned (R' Meir) states that one should always teach his child a "clean and easy trade" (this line is interpreted by the Rishonim and Achronim in multiple ways which are not relevant here) because in every trade there are wealthy and poor and being poor is not a result of the trade but according to one's merit. People look at others and assume that because they are employed in a certain profession they are wealthy or indigent. However, its not merely the job one does which determines his degree of financial success, its also the level of dedication and the help he has from upstairs.

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Sunday Night Suds - Holiday Porter

This week's Sunday Night Suds review continues the holiday theme by looking at another of the Samuel Adams limited editions - the Holiday Porter.

As opposed to the Samuel Adams Honey Porter, the gents at Beer Advocate classify the Samuel Adams Holiday Porter as an American Porter (for more details on the Honey Porter and the general definition of a classic English Porter, please click here http://kosherbeers.blogspot.com/2008/09/sunday-night-suds-samuel-adams-honey.html ). In distinguishing the American Porter class of beers, the experts at BA explain:

Inspired from the now wavering English Porter, the American Porter is the ingenuous creation from that. Thankfully with lots of innovation and originality American brewers have taken this style to a new level. Whether it is highly hopping the brew, using smoked malts, or adding coffee or chocolate to compliment the burnt flavor associated with this style. Some are even barrel aged in Bourbon or whiskey barrels. The hop bitterness range is quite wide but most are balanced. Many are just easy drinking session porters as well.

Unlike the beers with exotic additives in the BA review, this American Porter derives its flavor completely from the hops and malts added to the brew. In contrast, the Saranac Caramel Porter (previously reviewed here http://kosherbeers.blogspot.com/2008/03/sunday-night-suds-saranac-caramel.html) derives its flavor from caramel which is added to the brew process.

Like many of the darker beers, this is not something that you would just hand to someone looking to try beer for the first time. The beer itself pours nearly black and has has a deep complex flavor. The alcohol content also is on the high side as it is 5.8% abv. I enjoyed mine tonight by itself in a pilsner glass. I would not suggest pairing this with dinner fare, although it might do well as an accompaniment to chocolate babka.

Samuel Adams Holiday Porter is under the Kosher Supervision of the Star-K. To see what the experts on Beer Advocate think about Holiday Porter, please follow this link - http://beeradvocate.com/beer/profile/35/20564.

As always, please remember to drink responsibly and to never waste good beer unless there is no designated driver.

Finally, if you've tried this beer or any others which have been reviewed on the kosher beers site, please feel free to post your comments (anonymous comments are acceptable).

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Thursday's Parsha Tidbits - Parshas Mikeitz

The following is a brief summary of a thought said over by R' Frand in his shiur this evening. I have attempted to reproduce this vort to the best of my ability. Any perceived inconsistencies are the result of my efforts to transcribe the shiur and should not be attributed to R' Frand.

The Torah recites in Bereishis 42:1 that Ya'acov saw that despite the famine in Cana'an that there was food in Egypt. So Ya'acov tells the brothers to go to get food and they went. Rashi notes on 42:3 that the brothers had previously been called the sons of Ya'acov or of Israel, but in this pasuk they are called the brothers of Yosef. Rashi explains that the brothers now felt bad about the situation with Yosef and decided that if they found him as a slave in Egypt, they would spend whatever sums of money were necessary to buy him out of slavery.

R' Frand then quoted a sefer called Tiv HaTorah by R' Gamliel Rabinovich where the following question was asked - at this point the brothers are about to go through terribly agonizing experiences, isn't it ironic that since they have now begun to do teshuvah - why should they now have to go through all the emotional stress? R' Rabinovich then quoted a Sfas Emes about how Yosef had the test of the wife of Potiphar and Yosef ws able to withstand it and as a result he was called Yosef HaTzaddik. What happens immediately after this event? Yosef gets thrown into jail. Is this the reward for his actions? The Sfas Emes explains that if a person does an act of righteousness and shows that he wants to do teshuva, then Hashem will help him acheive teshuva gemura - and through the next event he will emerge with full teshuva. Yosef needed to do teshuva for telling lashon harah about the brothers. Once he stood up to the test of Potiphar's wife, then Hashem knew that he was ready for teshuva gemura and could withstand the prison from which he would emerge with full teshuva.

R' Rabinovich relates that the same concept applies to the brothers of Yosef. Once they had accepted on themselves to do teshuva, they were ready to go through the events which would cause them to become fully forgiven.

R' Frand said that sometimes we see people decide that they want to do teshuva and begin to take steps to keep the mitzvos such as closing their businesses on shabbos and keeping the laws as required. At this point they may encounter new problems in business or family life. (R' Frand related that this happens frequently enough that it is not a coincidence). These problems which occur (much like the events which happened to Yosef and the brothers after each chose to begin the path of teshuva) are Hashem's way of speeding up the process so that we can emerge on the other end with teshuva gemura.

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In Bereishis chapter 41, Pharaoh has his dreams and Yosef is called out of prison and he comes to Pharaoh and interprets the dreams, explaining that there will be seven years of plenty followed by seven years of famine. True to form there are seven years of plenty and then the seven years of famine begin (Bereishis 41:53-54). R' Yitzchak Ya'acov Reiness (the Lita Rav) asked - when the seven good years came, the Torah does not say "as Yosef predicted." However, when the bad years began the Torah recites at 41:54 that they came as Yosef predicted. Why does the Torah only remind us that Yosef had correctly predicted the lean years?

R' Mordechai Kaminetzky tells a story about Albert Einstein which explains the phenomenon. When Einstein explained the theory of relativity to the French, he quipped that if the theory bears out, the French will say that I am a citizen of the world, while the Germans will say that I am a citizen of Germany. However, if the theory fails, the French will say that I am a German and the Germans will say that I am a Jew. This is indicative that people may say positive things when events go well, but they know how to lay the blame when things go badly.

R' Frand closed with a story he heard from R' Abish Brodt about a reception in honor of R' Wein in Detroit which included many important people including the Editor of the Detroit Free Press. The Editor had a history of being very pro-Israel and he asked for (and received) an opportunity to address the gathering.

The Editor told the following story - when his mother came to this country from Ireland in the 1920s, she took a job as a housekeeper for a Jewish family who happened to live next door to a shul. She knew that the family was going out of town and would not be returning until December 23rd. She was concerned that getting back this late, they would not be able to get a "proper tree." She felt bad for them as they had always taken such care of her, so she went out and bought a tree and trimmed it with green and red lights and tinsel and put it in the front of the house.

The family came home and saw the tree and had two possible ways of dealing with the situation. Either they could demand that the tree be removed immediately, or they could deal with it much more sensitively. The head of the family chose the second approach - telling the woman that her act had been an incredibly thoughtful one which should be rewarded. He told her that he was going to give her a bigger bonus because of her actions and gave her a $50 bill (quite sizable for the 1920's). He then told her that unfortunately, there is no tree in our religion and that they could not keep it in their home, but still her act had been very thoughtful and they were touched.

The Editor related that his mother always spoke warmly about the Jews and the Tree and how respectfully they had treated her. He felt that this had influenced his view of Jews and continued to have an impact so many years later.

If we continually strive to make a kiddush Hashem (sanctify Hashem's name through our actions) then people can look positively on our actions and not only mention us when things go wrong.

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Wednesday's Weird But True Legal Cases - Vol XXXVI

Tonight's weird (but true) post was inspired by the recent conviction of OJ Simpson in relation to his use of force to "reclaim his property."

Under New York's Penal Law §155.15(1), a person who is accused of larceny can assert as a defense that the property was taken "under a claim of right made in good faith." In People v. Reid, 69 N.Y.2d 469, 515 N.Y.S.2d 750 (1987) New York's highest court examined whether the defense could be used in a robbery situation (defined as "when in the course of committing a larceny, he uses or threatens the immediate use of physical force").

In Reid, the court examined two fact patterns (the appeal involved two cases with similar facts which raised similar issues of law). In one of the cases, the defendant had taken money at gunpoint which he claimed was owed to him by the victim. In the other matter, the criminal defendant also took forcibly took cash (although without the threat of a gun) from the victim who he claimed owed him money.

In determining whether the defense was available, the court noted the logic used by other states, explaining that:

Defendants' general contention is not without support. Several jurisdictions have held that one who acts under a claim of right lacks the intent to steal and should not be convicted of robbery. That logic is tenable when a person seeks to recover a specific chattel: it is less so when asserted under the circumstances presented in these two cases: in Reid to recover the proceeds of crime, and in Riddles, to recover cash to satisfy a debt.

Ultimately, the court in Reid determined that the claim of right defense was not available when money was taken by force. The court did leave the door open to the use of the defense in cases involving specific items, stating:

We need not decide the quite different question of whether an individual who uses force to recover a specific chattel which he owns may be convicted of robbery. It should be noted, however, that because taking property “from an owner thereof” is an element of robbery, a person who recovers property which is his own (as compared to the fungible cash taken to satisfy a claimed debt in the cases before us) may not be guilty of robbery.

The question of the taking of a specific object by force came up in a slightly different context on the bar mitzvah of Reid in the case of People v. Brown, 185 Misc.d 326, 711 N.Y.S.2d 707 (Crim. Ct. N.Y. Cty. 2000). In Brown, the defendant was accused of unauthorized use of a vehicle in the third degree. As noted by the court, unauthorized use:

[I]s in essence a kind of larceny statute specially adapted for car theft. The Unauthorized Use statute applies where a defendant takes a car for a "joyride"--that is, where the defendant takes or uses a car, however briefly, knowing that he does not have the consent of the car's owner. Unauthorized Use differs from classical larceny chiefly in that the crime of Unauthorized Use can be committed even where defendant does not intend to permanently deprive the owner of the car; it is sufficient that defendant use the car for only a short period.

The facts in Brown were certainly closer to the fact pattern which the court hypothesized in Reid. In Brown the criminal defendant had paid $6,000 as a down payment on a car and then made subsequent monthly payments. He had the car registered in his girlfriend's name and they shared the use of the vehicle. At some point later the relationship between the two became strained and he was denied access to the car. Believing that he still had a right to the vehicle, he jumped in the car and drove it in a light pole as "if I can't have it, no one can" protest. He was then charged with the unauthorized use based on the girlfriend's assertion that Brown had bought the car for her for a present and that his use was without permission.

In determining that Brown was not guilty of unauthorized use, the court explained:

[I]t is undisputed that defendant Brown truly believed he had a right to use the car on the day in question. Moreover, as previously noted, there was at the very least a colorable, good faith basis for that belief because defendant paid for the car and because, for many months, Ms. Lindo had permitted defendant to use the car whenever he wanted. It is admittedly true that legal title to the car was held by Ms. Lindo and her father, and that Ms. Lindo had a very different understanding of the agreement she and defendant had struck concerning the car's use. Nevertheless defendant did believe in good faith that he was entitled to use the car on the day in question. Accordingly, he is not guilty of Attempted Unauthorized Use of a Vehicle. Any other verdict would elevate to the level of a crime what was in truth a petty civil dispute between Mr. Brown and Ms. Lindo over the precise terms of their vague and informal agreement to share the use of the car.

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