Lesson # 305 (part two) • TORTS We began the last lesson describing that in halacha, a person is always responsible for his acts. . It was stated that there were two views regarding when a person who has committed a tort (civil wrong) is not liable. That lesson described one view; in this lesson we begin by setting forth the second view. The second view of exception to liability for causing injury or damage asserts that Reuven is almost always liable and the accident exception is very limited in scope. Reuven cannot hope to be free of liability unless: (a) the result of his accidental conduct occurs after his act; or (b) Shimon, the victim, was partially responsible for the damages. If Shimon is partially negligent then Reuven is free of liability, since under a doctrine of comparative negligence, Reuven who performed his act accidentally, is less negligent than Shimon. From the language of some of the commentators, it is not clear if they hold the doctrine of contributory negligence in which event Reuven is not liable no matter how minimal Shimon’s negligence is; or if they hold the doctrine of comparative negligence then, whereby only if Shimon is more negligent than Reuven is the latter free of liability. Some examples that were not set forth previously. Example 1: Reuven, while carrying a jug of water in a public domain, trips, the jug falls from his hands and breaks and the water spills out over the ground. Some time thereafter Shimon comes by and slips in the water. Reuven is not liable if it can be shown that when Reuven tripped it was an accident on Reuven’s part and Reuven was not negligent. Example 2: Reuven trips while walking (not over Shimon’s jug) and then while falling breaks Shimon’s jug. Reuven is liable since the damage to the jug occurred while Reuven was falling. Although slipping or tripping is not negligent conduct, Reuven is liable since a person is always liable for his actions. Example 3: Reuven falls from a high place, such as a roof, and lands on Shimon’s jug, which he breaks. Reuven is liable. Example 4: Reuven falls from a high place, such as a roof and lands on Shimon, injuring him. Reuven is liable. The resulting liability is the same whether he was blown off the roof by an extraordinary wind or just fell while an ordinary wind was blowing. (There is an opinion that Reuven is liable even if he was blown off the roof by an extraordinary wind, and this applies only to the situation where he went up on a roof that did not have a parapet.) Example 5; Reuven climbs a ladder, the rungs of which are not firmly fixed or are worm eaten. A rung slips from under him and it falls and causes damage to Shimon’s object or injures Shimon. Reuven is liable. However, if the rungs were firmly fixed then Reuven is not liable, as this is close to being an act of G-d. As was stated above, the halacha presumes that a person is always responsible and liable for his actions, whether asleep or awake, when the act is committed, whether intentionally, unintentionally, inadvertently or accidentally. However, this depends upon the domain in which the tort occurred. Halacha divides the physical area’s of man’s existence into four domains regarding torts, although the legal consequences entail only three different laws. There is much disagreement among the great authorities in which domains each of the laws apply. I set forth the views of Rabbi Yosef Karo, as they appear in chapter 378 of Shulhan Aruch, Hoshen haMishpat. The four domains are: (1) the domain of Shimon, the victim (or injured person); (2) the domain of Reuven, the person causing the injury; (3) a domain in which both Reuven and Shimon have the right to walk; and (4) a domain in which neither Reuven nor Shimon have the right to be. Domains (3) and (4) are treated alike in the halacha regarding torts or personal injury or damage to personal property. In a discussion of the domain of Shimon, the victim, Reuven enters upon Shimon’s domain without authorization. In discussing the domain of Reuven, the tortfeasor, Shimon is on Reuven’s domain without authorization. A discussion of the domain of both Reuven and Shimon includes situations where: Reuven and Shimon are partners in the ownership of the domain; or Reuven gave Shimon authorization to enter Reuven’s domain; or Shimon gave authorization to Reuven to enter Shimon’s domain; or Levi the owner of the domain gave both Reuven and Shimon authorization to enter his domain; or both Reuven and Shimon are walking in a public street or in a side alley adjoining a public street. Examples of domains in which neither Reuven nor Shimon has the right to be include situations where they are both running in the public street - where neither has the right to be - because people have no right to run in the public domain; or they both entered upon Levi’s property without Levi’s authorization. We shall discuss these situations in order. First, (1) the domain of Shimon, the victim of the tort. All the liabilities apply to Reuven in the domain of Shimon. Whether it was Reuven and/or his objects that injured Shimon and/or damaged Shimon’s property; or Reuven, without Shimon’s permission enters Shimon’s domain and places his objects in that domain. Shimon and/or his objects intentionally injure Reuven and/or damage Reuven’s objects. Shimon is liable for the injury and/or the damage caused. The reason for this is that Reuven can successfully plead that Shimon should have removed Reuven’s object or evicted Reuven but did not have the right to injure him or his objects. However, if Reuven was injured and/or his objects were damaged inadvertently or by accident, Shimon is not liable. If Shimon is injured by tripping over Reuven’s object, Reuven is liable. There is an opinion that Reuven will be liable in this last case only if Shimon did not know that Reuven had placed his object there. But is Shimon knew, Reuven is not liable. The facts presented in this lesson are everyday common types of facts, where people live in proximity to one another. Anyone attending Small Claims Courts in America or even in this country will know that so many of the cases deal with property damage as described above. IYH in the next lesson we will discuss the other domains and injuries occurring there to Shimon. The subject matter of this lesson is more fully discussed in volume X chapter 378 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il [The Parshat
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