Wednesday's Weird But True Legal Cases - Vol XLIII

Tonight's weird (but true) legal case analysis was inspired by a recent letter to the editor which I read in one of the local Jewish papers. The writer had written to the paper to express her displeasure with people not shoveling the snow on their sidewalks. The person then stated that people should shovel because: (1) it was not considerate or menchlich to leave the sidewalk messy; (2) the failure to remove the snow could result in a ticket from the municipality and (3) the property owner could be sued if someone fell on the snow and ice which had accumulated.

I can't argue with the first reason mentioned in the writer's letter above, but the second two have been the subject of numerous court cases. Tonight, I would like to discuss Roark v. Hunting, 24 N.Y.2d 470, 301 N.Y.S.2d 59 (1969) which dealt with a pedestrian who slipped an fell on ice which had accumulated on a public sidewalk under a hanging sign.

In Roark, the Plaintiff broke his ankle as a result of a slip and fall on an icy patch of sidewalk. In his complaint, the plaintiff alleged that the ice was a result of water which had flowed off the gutter and leaders of an overhead sign and pooled in broken sidewalk in front of the commercial building.

Following a trial, an Albany County jury awarded the plaintiff $19,000 in damages as against the owner of the commercial building. This award was then affirmed by the Appellate Division. On appeal to the Court of Appeals, the court first went into a discussion about the liability of property owners for snow and ice related accidents, stating:

The basic rules in snow and ice cases were reviewed by the Appellate Division in Cannon v. Pfleider:‘As a general rule it is only the municipality which may be held liable for the negligent failure to remove snow and ice from a public sidewalk or to have defects and dangerous conditions in the sidewalk repaired, unless a charter, statute or an ordinance clearly imposes liability upon the owner in favor of the injured pedestrian. The parties cite no provision of any charter, statute or ordinance imposing such liability on an abutting owner. An abutting owner is not liable even though he fails to comply with a provision of a charter, statute or ordinance charging him with removal of snow and ice, nor is he liable for the removal thereof in an incomplete manner. It is also a general rule that an abutting owner is liable if, by artificial means, snow and ice are transferred from the abutting premises to the sidewalk; or if, by such artificial means, water from the property is permitted to flow onto the public sidewalk where it freezes. The basic distinction between liability and non-liability rests upon whether the water, snow or ice was conducted from private premises to the public sidewalk by artificial or natural means. The abutting owner may be held liable in the former case-where the unsafe condition was created by his own wrongful act. He is not liable in the latter case-where he committed no wrongful act.

So what did the Court of Appeals do? They reversed the decision of the lower court, since:

In the instant case there is not one iota of evidence that water flowed from the building or any instrumentality owned or controlled by the defendants. The evidence clearly shows that the water dripped from the sign and that this sign was erected by the tenant before [the landlord] bought the building. There is no evidence that [the landlord] controlled or maintained the sign, although it was attached to a pipe and bracket which were part of the exterior of the building. [The landlord] did testify that he was responsible for the exterior of the building, but the evidence fails to indicate that the water was conducted to the sidewalk because the sign was either negligently erected or maintained by the tenant, or because of a defect in the pipe and bracket which were affixed to the building owned by the defendants herein. The only evidence bearing on maintenance of the sign is the lease under which [the tenant] occupied the premises.

Keep in mind, the law in each municipality is different. However, if the writer of that letter lived in my town, she would be incorrect about the liability for the property owner, since the only liability would be if the homeowner did a poor job shoveling the snow, not of he chose not to shovel at all.

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Tuesday's Thoughts on the Daf - Preempted

Today's daf (Bava Kamma 58) continues a discussion started by the mishna at the beginning of the perek about the valuation of damages. The daf starts by discussing how the animal wound up falling into the field and whether the owner of the animal should pay the value of the benefit the animal received by falling on the produce or the value of the damage caused by the fall. This was largely dependent on the reason for the fall in the first place.

Rather than discuss the daf, I would like to take this opportunity to thank the Kadosh Baruch Hu, my family, friends and the many people who have viewed this 'blog over the last year. Today marks the first anniversary of kosherbeers and what started out as a hobby has quickly grown to be a regular part of my daily life. Through this 'blog I have the opportunity to express myself in writing, but in a different fashion than what I do in the work place. Unlike my work which is dictated largely by the cases I am working on, the 'blog allows me to choose the topics I am writing about, be it: beer, sports, gemara, law or parsha. As a result, I often find myself smiling while I write my posts, even though they are usually written at 11 PM.

So now, one year and two hundred and forty plus posts later, I find myself wondering who gets more out of the 'blog, the people who read my musings, or me for having the ability to express myself. Is this a cause and effect analysis like today's daf? I can't tell you for sure. But I can tell you that I appreciate the 8100 clicks I have gotten over the last year and I hope that you all have appreciated my writing whether or not you agree with me or my opinion on beer, sports, Torah or law (and not necessarily in that order).

Finally, to those of you have served as inspiration for my posting, please accept my apologies if you feel that you have been slighted. I try to attribute the posts b'shem omro (see my post for Max Kellerman's Monday musings here http://kosherbeers.blogspot.com/2009/02/max-kellermans-monday-musings-vol-xlii.html for more on that concept) so that people are credited for their perspectives, while still protecting the privacy of my friends and those who e-mail me questions and ideas (as far as my family goes - you have no privacy).

So here's to many more kosher beers and good friends to enjoy them with!

Neil

Max Kellerman's Monday Musings - Vol XLII - Murphy, Manuel, Millions and Memories

Today's Max Kellerman show (in my opinion) was not typical Max - a little basketball, a little baseball, some hockey and no Giants. Still there were some usual Max elements. I'll try to recap the high points in this post.

Max started off by asking the listeners how their weekend was. He immediately asked himself why he did that, since he said that in real life he hates small talk. Maybe he was talking to Louie and Lundberg, but did not want to let on that he was breaking the ban. Max let it slip about a week and a half ago that he can no longer talk to his producers. Unlike previous "bans", Max no longer mentions the producers by name. The listeners have apparently been muzzled as well, since I have not heard any "free louie and lundberg" calls. The only reason I am not doubting whether Louie and Lundberg are still on the show is that they are still featured on the show's home page http://stations.espn.go.com/stations/1050espnradio/show?showId=Max .

Max spent a little time at the beginning of the show on Jerry Manuel's announcement that Daniel Murphy will be starting for the Mets and that Ryan Church would be platooning with Fernando Tatis. Max wondered whether Church was in Manuel's doghouse. He also performed a feat of sabermetric analysis in talking about how the numbers from Murphy's AA and partial season with the Mets project him as an MLB player.

There was a great piece on Jim Calhoun and his press conference outburst at a "freelance reporter" who challenged him on his salary deal. Calhoun completed dressed down the reporter (and in my opinion rightfully so) for bringing the topic up at the press conference. He also mentioned that the UConn basketball program makes $12M a year for the school. No small feat when your program is in Storrs, CT - more than an hour away from any decent size city. As such, Max defended the salary that Calhoun makes (not that he really needed defending).

Max tied the Calhoun controversy into the ever present debate over Citibank and the naming rights at the new Mets stadium. Max correctly pointed out that big business needs advertising and that Citibank could justifiably spend $20 million on advertising. He then asked rhetorically whether people were saying that bailed out companies are not allowed to advertise (look out Detroit if that happens).

As usual, Max let a little of his personal life into the show. He talked about his wet socks, but I'll skip that one if its OK with you. The more interesting discussion came when he spoke about taking his three month old daughter (Esther) to visit his grandmother who is in a nursing home. He openly questioned why he had done this, because Esther nor his grandmother will have any memory of the event. He also talked about how all the old people wanted to touch Esther and how she keeps putting her hands in her mouth. I can sympathize with Max about the germ issue, but have to disagree with him about the memories. While he is correct that they may not remember it (I don't know what his grandmother has, but Alzheimer's and other age related memory loss is a horrible thing) there are ways to make it a positive experience for the long term. We took pictures of our older children with some of Sarah's grandparents when our kids were little. I am certain that her grandmother did not know who Penina was when we took the picture, due to her grandmother's advanced illness. However, by taking video and still pictures of my children interacting with their great grandparents, my kids will be able to do more than just listen to stories about their ancestors.

Speaking of Esther, Max returned to a familiar rant of his which has a link to Torah thought. Max talked about how he is "always getting ripped off" since his thoughts appear uncredited on TV shows or newspaper columns or even on the ESPN website. The concept of giving proper attribution can be found in the book of Esther which we will read in a few weeks. In Esther 2:22, the Megillah recites that Esther told the King in the name of Mordechai how Bigsan and Teresh were planning to kill the king. R' Elazar in the name of R' Chanina states in Gemara Megillah (15a) that this is a proof that whoever recites a saying in the name of the one he heard it from will bring redemption to the world. By telling the king that Mordechai was the source, Mordechai was recorded in the king's book as one who was owed a reward. This later set in play the saving of the Jewish people which began when the king could not sleep and asked that the book be read to him.

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Sunday Night Suds - Coopers Lager

Tonight's Sunday Night Suds looks at another of the great beers produced by the Coopers Brewery of Australia - Coopers Premium Lager.

I picked this beer up at American Beer on Court Street in Cobble Hill Brooklyn. Its a great beer store with a superior selection and staff who not only know what is in stock, but also know where the beers can be found in the store. You do pay a little more, but you really can't find a better combination of selection and service.

An interesting note about this beer is that as with most of the recent Coopers brews that are being imported into the US, the Coopers Premium Lager bears the Kosher Australia certification mark, along with the legend (in Hebrew) Kosher Parve L'Mehadrin. I find it difficult to resist trying beers that are labeled this way (although I was able to hold back from buying a sixer of the Extra Strong Vintage Ale which goes for a jaw dropping $23 a six pack).

The Coopers Lager was a typical lager as it poured a bright yellow color and had typical lager flavor and smell, albeit somewhat on the lighter side for alcohol taste. Although the website indicates that the beer is 5 % abv, it seemed to me to be a bit lighter than that. Since, I have no way to verify the alcohol content, I will have to trust them. Still, if you have tried it and agree with me, post a comment on the blog and let me know what you think.

Coopers Premium Lager is an excellent companion to most dishes as the lager flavor will not drown out your food. Of course, you could just have it by itself after a long day at work.

Coopers Premium Lager is under the kashruth supervision of Kosher Australia. For the experts take on the Premium Lager, please click here http://beeradvocate.com/beer/profile/491/29393 .

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 Mishpatim

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.

In Shemos 23:5, the Torah instructs that if you see the donkey of someone who you hate lying under a burden, will you refrain from helping him? You should help along with him. The end of the sentence uses the language "Azov Ta'azov Imo." The use of the verb azov is odd, as it can also mean to leave someone alone. Rashi explains that the term azov can be used in different ways and that depending on the circumstances, a person should or should not be helped.

Targum Onkelos explains the use of the term azov in a more literal manner. When a person sees someone who he hates in a bad situation and the person feels that he wants to leave his enemy to suffer, the Torah teaches that he should abandon his feelings of hatred towards that person and assist him - hence the term "Azov Ta'azov Imo."

R' Frand connected the Targum's explanation of the pasuk to a story involving R' Bunim. He said that once R' Bunim was travelling on a cold winter night and wound up at an inn. As the innkeeper was feeding R' Bunim, he started to tell him about his financial troubles. It seemed that the inn was never full and the innkeeper was having a difficult time supporting himself.

While they were talking, there was a knock at the door. The innkeeper opened the door and a beggar entered. The beggar said to the innkeeper that he could not afford to pay to stay at the inn, but just wanted to warm up by the fire. The innkeeper allowed the beggar to come in and sit by the fire. Later, the beggar told the innkeeper that he could not get warm and then asked the innkeeper for a glass of vodka to warm himself up. Again, the beggar apologized for his inability to pay, but still asked whether he could have the vodka.

The innkeeper left the beggar and went to his vodka barrel. He filled a cup with vodka and then spilled it on the floor. The innkeeper then refilled the cup and again spilled it on the floor. This was repeated a number of times before the innkeeper finally brought a cup of vodka to the beggar.

R' Bunim then said to the innkeeper - maybe the reason you are losing money is because you keep wasting your resources. The innkeeper responded that he had not been intentionally wasting the vodka. The reason that he had poured out the first cup was that when he filled it he was upset and was thinking that it was a waste to give the vodka to someone who would not pay. The second time that he filled the cup, the innkeeper again had negative thoughts about his guest - thinking to himself that he was losing money by dealing with the beggar. The innkeeper continued to pour out the vodka cups until such time as he was able to do chessed with a full heart and leave behind his ill feelings for the beggar.

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Wednesday's Weird But True Legal Cases - Vol XLII

This week's weird (but true) legal case looks at the matter of Badgley v. City of New York, 606 F.2d 358 (2d Cir. 1979) a case with a very intriguing fact pattern.

In Badgley, multiple suits filed by Pennsylvania landowners were consolidated for a joint trial against the City of New York. The basis for the suits was that the City's diversion of water from the Delaware River had diminished the value of their properties which were situated along the Delaware River. After the District Court granted judgment to the property owners, the City appealed to the Second Circuit Court of Appeals. This post will discuss the Second Circuit's reversal of the District Court decision.

Before getting into the decision itself, I need to explain one of the reasons that this case appealed to me. Leaving aside the intriguing arguments mentioned in the decision, I have a personal involvement in the sense that I recall numerous summer canoe trips down the Delaware River where it adjoins New York on one side and Pennsylvania on the other. The decision itself talks about how the Eastern and Western branches join at Hancock, New York and that prior to the confluence of the branches, the Western branch passes Deposit, New York where it abuts both New York and Pennsylvania.

In arguing that the lower court decision was incorrect, the City of New York leaned heavily on the argument that the landowners were preempted from suit because of a prior settlement in a lawsuit involving the states of New York, New Jersey and Pennsylvania. While most people know that the Supreme Court of the United States is the highest court in the land, it is generally thought of as an appeals court of last resort which reviews the decisions of lower state and federal courts. However, the Supreme Court also has the jurisdiction to hear lawsuits between the states themselves. I can recall a suit in the not too distant past when New York and New Jersey were arguing as to which state actually owned Liberty Island in New York harbor.

As was relevant to the Badgley lawsuit, in 1929 New York City announced that it was planning to divert water from the Delaware River to provide for the City's drinking water supply. Thereafter, New Jersey filed suit in the Supreme Court of the United States, seeking to block the diversion. Soon after, the State of Pennsylvania intervened to protect the supply of water to Philadelphia and Eastern Pennsylvania. After a considerable amount of testimony, a report was prepared by a special referee which was subsequently adopted by the Supreme Court in 1931. The decree limited the amount of water New York City could divert, while requiring that water be released by New York and New Jersey at regular intervals so as to protect downstream states from damages to municipal, recreational and fishery uses. Thereafter, in 1954 the decree was modified on consent of all states. Later in 1962 the four basin states entered into an agreement to create the Delaware River Basin Commission.

In reversing the lower court, the Second Circuit found that the Pennsylvania landowners could not bring suit because the prior lawsuit filed by the State of Pennsylvania had been filed as Parens patriae since Pennsylvania had been acting on behalf of all the citizens of the State of Pennsylvania. In so doing, the Circuit noted that "a suit may be brought by a state 'for an injury to it in its capacity of Quasi -sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain.'"

An interesting side note is that while the property owners tried to argue that they had independent rights, the court disagreed, explaining that:

[A]ppellees are correct in asserting that Pennsylvania could not have brought suit or intervened in the suit against New York to protect a mere collectivity of private riparian rights. But to draw from this the conclusion that the individual interests of Pennsylvania's riparian owners were not represented in the suit and are thus not affected by the Decree is to ignore the obvious fact that the riparian rights of the appellees are not independent of Pennsylvania's rights in the waters of the Delaware River but rather are derivative therefrom and are subject to change by the laws of that state. Connecticut v. Massachusetts, 282 U.S. 660, 670, 51 S.Ct. 286, 75 L.Ed. 602 (1931). Thus, it necessarily follows that the rights of Pennsylvania citizens cannot exceed those of Pennsylvania itself and the extent of Pennsylvania's rights in the Delaware River was conclusively determined by the terms of the Decree.

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