In California, a bee is a fish. (At least for purposes of California’s endangered species act.)

By: Peter J. Gallagher (LinkedIn)

In a recent decision, Almond Alliance of California v. Fish and Game Commission, a California court was asked to determine whether bumble bees fall within the definition of a “fish” in the California endangered species act. The issue arose when California attempted to classify four types of bumble bees as endangered species. Under California law, “fish” can be classified in this manner, so if the bees qualified as “fish” then they could be protected. Seems like an easy question to answer, right? But remember, this is California.

The court held that a bee is a “terrestrial invertebrate” and all invertebrates – not just ones that spend at least some of their time in the water – are included under the definition of “fish” in California’s endangered species act. Good news for bees; bad news for the English language.

In Almond Alliance, the court acknowledged that “[a] fish, as the term is commonly understood in everyday parlance, of course, lives in aquatic environments.” But the California legislature defined “fish,” for purposes of its endangered species act, as a “wild fish, mollusk, crustacean, invertebrate, [or] amphibian.” According to the legislative history, this expanded definition would “permit closer control and monitoring of the harvest of species such as starfish, sea urchins, sponges, and worms,” and would allow the state to protect “amphibians (frogs) and invertebrates, such as starfish, sea urchins, anemones, jellyfish and sponges.” No mention of bees  or insects anywhere in the definition or legislative history, but the court nonetheless held that a bee is “terrestrial invertebrate” and the definition of fish includes “invertebrate,” so a bee is a fish.

Of course, the court did not hold that a bee is a fish for all purposes. It just held that a bee satisfies the definition of “fish” in the California endangered species statute, so it can be protected. But still, it seems odd to acknowledge that a fish is, “of course,” “commonly understood” to mean an aquatic creature, then review legislative history that references full-time aquatic creatures like mollusks (snails, clams, squids) and crustaceans (crabs lobsters, shrimp) and part-time aquatic creatures (amphibians), only to then conclude that an insect that, as far as I know, avoids the water entirely, is a fish. I am all for reading the terms of a statute literally, but this seems a bit much for me.

 

“Once Upon a Time . . . in Legal Ethics and Social Media.”

By: Peter J. Gallagher (LinkedIn)

In a recent decision, the New Jersey Supreme Court looked back to a time before social media was ubiquitous, a time when Facebook was cutting edge and perhaps even – pause for collective gasp from anyone under 40 – cool.

The case – In the Matter of John Robertelli – involved an attorney who represented defendants in a personal injury case. He asked his paralegal to search the Internet for information about plaintiff. The paralegal did, first by searching plaintiff’s Facebook page — which was allegedly public for a time but later made private — and then by “friending” plaintiff. The paralegal obtained information from plaintiff’s Facebook page that could have been used to impeach plaintiff. In 2021, the question of whether this conduct violates RPC 4.2 – which prohibits attorneys from communicating with individuals represented by counsel – seems pretty straightforward. But the conduct in Robertelli took place in 2008, which made all the difference to the Supreme Court:

Our Rules of Professional Conduct (RPCs) generally prohibit a lawyer from communicating with another lawyer’s client about the subject of the representation without the other lawyer’s consent. RPC 4.2. That ethical prohibition applies to any form of communication with a represented party by the adversary lawyer or that lawyer’s surrogate, whether in person, by telephone or email, or through social media. Although it is fair game for the adversary lawyer to gather information from the public realm, such as information that a party exposes to the public online, it is not ethical for the lawyer — through a communication — to coax, cajole, or charm an adverse represented party into revealing what that person has chosen to keep private.

The issue in this attorney disciplinary case is the application of that seemingly clear ethical rule to a time, more than a decade ago, when the workings of a newly established social media platform — Facebook.com — were not widely known. In 2008, Facebook — then in its infancy — had recently expanded its online constituency from university and high school students to the general public. A Facebook user could post information on a profile page open to the general public or, by adjusting the privacy settings, post information in a private domain accessible only to the universe of the user’s “friends.”

The novelty of Facebook in 2008 – to both the bar at large and Robertelli – saved the attorney from potential ethical consequences. But the Supreme Court cautioned, attorneys can no longer “take refuge in the defense of ignorance” when it comes to social media.

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Words of Warning: “If you promise the police that you will take charge of a drunk driver and his or her car, you will be counted on to do so.”

By: Peter J. Gallagher (LinkedIn)

From the Appellate Division comes another case that sounds more like a law school hypothetical than real life. Here is the scenario: A driver is pulled over for a traffic offense. Signs point to the driver being intoxicated, but the police don’t conduct a field sobriety test. Instead, the officers allow the driver to call a friend to drive him home. The driver’s friend arrives and assures the offices that he will take the driver and his car “safely to a residence” (note: whether the friend promised to take the driver “home” is not clear).  Unfortunately, on the way to the “residence,” the drunk driver convinces his sober friend to let him drive again. The friend agrees and leaves the car. The driver takes control and later gets into a serious accident. The question is whether the friend can be civilly liable for the accident along with the drunk driver and others. The answer from Diaz v. Reynoso . . . maybe.

In Diaz, four friends – Reynoso, Dominguez, Gonzalez and Paredes – went to a rooftop party in Fort Lee and then an Argentinian restaurant in Englewood. Reynoso admitted to having at least two cocktails, a shot of tequila, and two beers at the restaurant. When they left the restaurant, the four friends split up – Reynoso left in his car with Gonzalez as a passenger, while Paredes left in his van with Dominguez as his passenger.

Shortly thereafter, police officers stopped Reynoso’s car after they observed it travelling the wrong way down a one-way street. After speaking with Reynoso , one of the officers asked Reynoso if he felt capable of driving. He said he did, but also offered to call someone to pick him up. The officer “responded that would be preferable.” The officers did not administer any field sobriety tests on the driver.

Continue reading “Words of Warning: “If you promise the police that you will take charge of a drunk driver and his or her car, you will be counted on to do so.””

Does the “rescue doctrine” apply to pets? (Warning: Dog lovers probably will not like the answer.)

By: Peter J. Gallagher (LinkedIn)

In a case with facts that could have been ripped from a torts exam, the Appellate Division held that a woman who jumped into a canal to try to save a neighbor’s dog could not sue the neighbor under the rescue doctrine because the doctrine applies only to people trying to rescue other people, not people trying to rescue animals.

In Samolyk v. Berthe, plaintiff claimed that she heard someone calling out that their dog was in a canal near her property and needed help. She jumped in to try to help. Defendants tell a different story. They claim that they were having dinner with their son and some friends when they realized their dog was missing from their fenced-in yard. They claim they searched for the dog, determined that the dog had fallen or jumped into the canal, walked to a neighbor’s backyard, and pulled the dog out of the water. Defendants claim they never asked for help from plaintiff or anyone else.

Defendants called 911 some time later after their son told them that “a woman needed assistance.” When police arrived, plaintiff was unconscious on a floating dock and the fire department was on the scene performing CPR. Plaintiff regained consciousness, but allegedly suffered “debilitating brain damage” that led to her husband being appointed her guardian ad litem.

Continue reading “Does the “rescue doctrine” apply to pets? (Warning: Dog lovers probably will not like the answer.)”

Drinking + Dancing + Pools = Obvious Hazard?

By: Peter J. Gallagher (LinkedIn)

As summer is about to (unofficially) begin, a timely post about mixing drinking, dancing, and pools. (Spoiler alert: It usually doesn’t turn out great.) As a side note, in the 1990’s I occasionally went to shows at Tradewinds in Sea Bright. It was a pool/beach club that held concerts on weekend nights (I was there when Bruce Springsteen showed up to play with Steve Earle.) There were pools not far from where the shows were held and I was always amazed that nobody fell in, at least not while I was there. But I digress . . .

In Antonio v. Harrah’s Atlantic City Propco, LLC, plaintiff attended a “Pool After Dark” party at Harrah’s in Atlantic City. At these events, which were held three-days a week, year round, from 10 pm to 4 am, “[a]ttendees drank, listened to music, and danced around a pool in the center of the venue.” Harrahs employed between 25 and 35 security guards during the events. A lifeguard was also on duty and two Atlantic City police officers were stationed outside the venue. “[I]ncidents of disorderly conduct” were “frequent” at the events, with police issuing about two summonses per night and ejecting patrons every week for fighting. And, in the ten weeks leading up to the night plaintiff was injured, there were eight instances of attendees being pushed into the pool, intentionally or otherwise.

Unfortunately, the night plaintiff attended, she was bumped or pushed into the pool – allegedly by third-party defendant whose boyfriend plaintiff had “chatted” with during the event – and severely injured her hand. She sued Harrah’s, alleging negligent maintenance of premises.

Continue reading “Drinking + Dancing + Pools = Obvious Hazard?”