Lawyer Loses Challenge To Rule Limiting The Amount Of Time He Could Speak At City Council Meeting

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

There is a lawyer joke in here somewhere about lawyers suing to get more time to speak or how someone should sue to force lawyers to talk less. Potential jokes aside, the issue in Feld v. City of Orange was an interesting one. In Feld, plaintiff challenged a municipal ordinance that reduced, from ten minutes to five minutes, the time members of the public could speak on certain matters at city council hearings. Plaintiff claimed that this ordinance violated his First Amendment right to free speech. Spoiler Alert: He lost. But the issue and the decision are nonetheless interesting.

Feld was the latest chapter in litigation that has been raging between plaintiff, a lawyer, acting on behalf of himself and his parents' business, and the City of Orange for years. (In a prior decision, the Appellate Division noted that plaintiff considered himself a "zealous gadfly" and a "radical barrister.") At some point during this long-running battle, the city adopted an ordinance "that reduced the time from ten minutes to five that individual members of the public could speak at City Council meetings on general issues, agenda items or second readings of ordinances before adoption." The city council claimed the change was necessary because "council meetings can extend late into the evening or early into the next day" and this "discourages, if not precludes[,] a fair opportunity to be heard by other members of the public." The city council further claimed that, "without appropriate and rational limitations, the rights of all public speakers [would be] curtailed and undermined." The city council also noted that other municipalities limited the time for speaking during public meetings to five minutes.

The underlying issue in Feld involved plaintiff's objection to the city council's adoption of a resolution that allowed the mayor to sign a lease and option to buy a building owned by the YWCA of Orange, which was in bankruptcy. He challenged the resolution when it was before the city council, and, after it passed, filed a 257 paragraph complaint in lieu of prerogative writs seeking to have it invalidated. As part of this complaint, he also challenged the rule reducing the amount of time members of the public could speak at city council hearings. After filing his complaint, plaintiff filed an order to show seeking, among other things, to restrain the city from enforcing the five-minute rule while the lawsuit was pending. The trial court heard oral argument on the order to show cause, and took testimony from a witness on behalf of the city, who testified that the rule was necessary to "administer the Council meetings more efficiently," and that it was an attempt to "make sure that all of the comments are heard and that everyone gets a chance to talk."

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No Expert Needed When Party’s Attempt To Fix Clogged Tub “Bespeaks Negligence”

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Although I have been a homeowner for a number of years and like to think that I am reasonably handy, my knowledge of plumbing is probably more informed by Mario Brothers than anything else. As the saying goes, I know just enough about the subject to be dangerous, so I generally try to avoid it. One of the parties in a recent Appellate Division decision, Sayat Nova, LLC v. Koestner, probably would have been better served heading this advice, as the Appellate Division held that no expert was needed to show that it acted negligently when it broke a pipe in a clogged tub that caused flooding in a restaurant several floors down.

In Sayat Nova, plaintiff operated a restaurant in defendant's building. After water from a third-floor apartment came flooding like a "waterfall" out of the ceiling and into the restaurant, plaintiff sued. The incident that precipitated the lawsuit was not the first time that the restaurant flooded. Four times in the previous three years, water entered the restaurant from the same general area in the ceiling. Each incident "involved more water and more damage than the previous incident." Each time plaintiff notified defendant, but never received a response. On one prior occasion, after receiving no response from defendant, plaintiff hired contractors at his own expense to repair the damage. Plaintiff was never compensated for these expenses or any losses caused by the prior incidents.

In the incident that led to the complaint, water came into plaintiff's restaurant from the ceiling above a different area of the restaurant than in prior incidents. Moments after plaintiff noticed the intrusion, the building's superintendent entered the restaurant with a man plaintiff did not know. Neither man was a licensed plumber. The superintendent told plaintiff: "By mistake we broke the pipe . . . We try to fix the fixture, and the guy by mistake break the pipe." He was apparently referring to a pipe in a third-floor apartment with a "hair-clogged tub." After the incident, defendant called a licensed plumber to fix the problem, but the damage caused plaintiff to have to close his restaurant several days for repairs.

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Field of Bad Dreams?

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

In Field of Dreams, James Earl Jones's character makes a famous speech about baseball being "the one constant through all the years." While "America has rolled by like an army of steamrollers," and has been "erased like a blackboard, rebuilt, and erased again . . . baseball has marked the time." In D.W. v. L.W., the Law Division started its opinion with a less poetic, but more ominous baseball-related statement: "This case involves separated parents, young children, and Little League baseball." If you have been to more than a few youth sporting events, you can probably guess what was at issue in the case. Nonetheless, the court's opinion is a good read as it is part homage to little league baseball and part framework for how parents should (and should not) behave at youth sporting events.

In D.W., a husband and wife's child played in a "coach-pitch league." Although they were separated, they agreed that they could both attend the games as long as the husband stayed at least 50 feet from the wife. A few months later, the husband filed a follow-up motion to attend their son's football games. The wife opposed the motion and further asked the court to ban the husband from continuing to attend their son's baseball games because he had "acted inappropriately at the baseball field, in a publicly embarrassing manner, by making negative and demeaning comments about the team coach's baseball-related decisions, within earshot of the coach's wife." She further claimed that the couple's daughter later started repeating the husband's comments, and that the husband had posted similar commentary about the coach on Facebook. The husband denied that he acted inappropriately, and further claimed that it was his wife "who, at least previously, did not approve of the coach's baseball-related abilities." (As an aside, how many "baseball-related decisions" does a coach really make in a 7-year-old's coach-pitch game?)

The court began its opinion by emphasizing the importance of youth sports in America. More than 40 years ago, the Appellate Division recognized that little league baseball was a "piece of public Americana." It has been almost universally praised as a "social and cultural tool for positive childhood development and inclusion." According to the court, the benefits of little league baseball go beyond "simply teaching children to hit, field and catch," but include developing "good citizenship, sportsmanship, and maturity of character." In fact, the court took judicial notice that "the results of particular Little League games are not nearly as significant as the underlying goal of developing a child's ongoing personal character in a positive fashion."

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Havanese Day! Statements on duped dog buyer’s blog not defamatory

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

In Roberts v. Mintz, defendant bought what he believed was a "healthy, nine-month old, purebred Havanese," but what he got was a two-year old dog that was not a purebred Havanese, and was suffering from various health problems. Defendant complained and plaintiffs offered to refund his money in exchange for the dog. Defendant refused. He wanted the refund, but he wanted to keep the dog because he had already incurred $800 in veterinary fees and because he had become fond of the dog, which he named Moose.

One month after buying Moose, defendant began posting about his experience with plaintiffs on his blog. As you probably guessed, the posts were not positive. Eventually, plaintiffs sued in connection with six specific statements defendant made on his blog, which, among other things, accused plaintiffs of being members of a "notorious ring of South Jersey dog grifters," alleged that plaintiffs had been convicted of animal cruelty, claimed that plaintiffs' lived in a "run down farmhouse with 6 children," and described plaintiffs as "despicable human beings" who ran a "fraudulent puppy mill." Defendants also posted that they had heard from others who were "unwittingly scammed" by plaintiffs. Individuals who claimed to be plaintiffs responded to some of the posts in the comments sections of the blog, calling defendant a "liar" and a "jerk," and claiming that he "suffered from 'rage syndrome,' a behavioral condition that afflicts canines."

In lieu of answering plaintiffs' complaint, defendant moved for summary judgment, seeking to have the complaint dismissed. He also served plaintiffs with a frivolous litigation letter. Plaintiffs cross moved for summary judgment and also sought an injunction preventing defendant from defaming them. The trial court granted defendant's motion. It held that plaintiffs were barred from suing in connection with several of the statements because the one-year statute of limitations had expired. In doing so, it rejected plaintiff's claim that the statute of limitations should have been tolled because defendant had committed a continuous tort. The trial court found that the remaining statements were "opinions, epithets, and hyperbole," and were therefore "not sufficiently factual to be actionable."

Defendant then moved for sanctions, and the trial court granted the motion. Although it did no award defendant all of the sanctions he sought, it did award him $25,000 — assessed against both plaintiffs and their counsel — because plaintiffs filed their complaint without sufficient evidentiary support and because several claims were barred by the statute of limitations.

Both sides then appealed — plaintiffs seeking to reverse the trial court's decision dismissing their complaint, and defendant seeking to reverse the trial court's decision to award him less in sanctions than what he requested

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We’ve Come A Long Way From Orange Slices At Halftime! Court Rejects Lawsuit Over Injury During Youth Soccer Match

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

If you thought that the yellow card that your child got at his or her soccer match (undeserved though I am sure it was) could never land you in court, you were wrong. In G.C. v. New Jersey Youth Soccer, the parents of a child who received a yellow card were sued by the parents of a child who was injured on the play that resulted in the yellow card. Here is how the Appellate Division described the play:

During the last two minutes of a close soccer match, twelve-year old [plaintiff] was dribbling the ball to take a shot at the goal . . . [Defendant] was trying to catch up with him and take the ball away. There was excitement as the game was close and time was running out. [Plaintiff] made a move for the ball, but he didn't have control of himself as he did and managed to catch the plaintiff after the shot went off.

The play resulted in a knee injury to plaintiff and a yellow card being issued to defendant because, according to the referee, he "contacted [plaintiff] in a manner that didn't confirm with normal level of play."

It also resulted in a lawsuit being filed by plaintiff's parents, on his behalf, against a number of parties, including the other child, several individuals, and various soccer clubs and associations. Plaintiff alleged negligence and reckless and intentional conduct on the part of all defendants. After discovery, each defendant moved for, and was granted, summary judgment. Plaintiff only appealed the grant of summary judgment to the other child.

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