THE JERUSALEM INSTITUTE OF JEWISH LAW
Rabbi Emanuel Quint, Dean

Lesson # 316 (part four, PIT part 2) • Damage caused by a Pit (BOR)
In the last lesson it was stated that there is a difference in legal result if the pit dug or uncovered by Reuven was in a public street, Reuven’s domain or Levy’s (a third party’s) domain.

Public domain
Reuven is liable for digging or uncovering a pit in a public street or in a lot that opens into a public street. He has no more right to the public street than anyone else or animals belonging to others do. Similarly Reuven is liable if he digs in a side alley off a public street, in the marketplace or in any place not owned by Reuven and where people have a right to go. However, Reuven is not liable if he illegally digs a pit under a public street but the opening is in Reuven’s domain.

Reuven’s domain
Reuven digs a pit in his own domain with the opening of the pit in his own domain. When damage occurs due to the pit Reuven is not liable. He may do as he pleases since it is on his own premises. Thus Reuven is not liable if Shimon’s himself is injured and/or if Shimon’s animal is injured or killed in the pit. Reuven can plead successfully that Shimon had no right to enter into his domain. Assume that Shimon enters into Reuven’s yard with permission and falls into the pit or his animal falls into the pit. According to one opinion, the permission is neither an invitation nor an open license but Shimon must proceed with due diligence upon entering Reuven’s domain. According to this opinion there is no liability unless Reuven specifically invites Shimon to enter his premises alone or with his animal. According to a second opinion, as soon as Reuven grants Shimon permission to enter into his domain, Reuven is liable if Shimon and/or his animal are injured in Reuven’s pit.

Reuven as a good citizen digs a pit in an area on the side of the public street so that it will be filled with rainwater, so that passersby will have water to drink or to water their animals. Once he advises Beth Din of what he has done or if gives a cover to Beth Din to place it on the pit he is no longer liable, once Beth Din has enough time to cover the pit.

Reuven in his own domain digs a well for the public and donates the well to the public. As soon as the public officials are made aware of and accept the donation, Reuven is no longer liable to those who fall into the pit.

Levi’s domain
Reuven digs a pit in Levi’s domain. If the pit causes injury or damage prior to Levi becoming aware of the pit, only Reuven is liable for any damage caused by the pit, under circumstances that would have deemed Levi liable had he dug the pit. Reuven is also liable to Levi for damage done to his premises and for injuries to Levi and his animals as if the pit were in a public domain. Once Levi becomes aware of the pit, he must cover or fill it. Should Levi fail to do so, Levi becomes liable in those situations in which he would be liable if he dug the pit himself.
Depth of height of the pit

In halacha, there is a distinction between two depths and heights regarding Reuven’s liability for damage or injury caused by his pit. If the pit is ten or more tefachim deep, the liability that it entails is different than a pit that is less than ten tefachim deep.

[Ed. note: 10T ranges from the calculation of R' Chayim Na'eh - 8cm per tefach to that of the Chazon Ish - 9.6cm per tefach. 10 tefachim then is 80-96cm or 31.5-37.8 inches.]

Similarly, if a mound built up by Reuven in a public street is ten or more tefachim above the ground level the liability it entails is different from a mound that is less than ten tefachim high.

In order for Reuven to be liable to Shimon for the death of Shimon’s ox that fell into the pit, it must be at least ten tefachim deep. If the pit was less than ten tefachim deep and Shimon’s ox fell in and was killed, Reuven is not liable. However, if Shimon’s ox was injured, as distinguished from being killed, Reuven is liable even if the pit was less than ten tefachim deep, no matter how shallow. The ten tefachim measure also applies above the ground. For example, if Reuven places an object such as a carton or a pile of sand in the public domain, the height for Reuven to be liable to Shimon’s animal that is killed by falling or tripping over it will be ten tefachim above the ground. If less than ten tefachim in height, Reuven will not be liable for the death of Shimon’s animal but will be liable if Shimon’s animal is injured. There is an opinion that if the mound or object is less than three tefachim in height there is no liability at all if Shimon's animal falls over it.

There are some authorities who give precise depths to be applies for different types of creatures. If the pit is at least the depth determined for the particular animal, then there is liability. It seems to me to that the better view is not to have these differing measurements for different creatures, but to hold Reuven liable for any depth that causes injury to any animal. In determining depth, one tefach of water in a pit is deemed to be equivalent to two tefachim of pit depth. Thus if the pit is nine tefachim deep, but one tefach is of water, it is deemed to be ten tefachim deep. The depth exacerbates the lack of air that asphyxiates the ox. Thus if here is no doubt that the ox died from concussion rather than asphyxiation, Reuven is free of liability since the pit was only nine tefachim deep and the ox did not die of asphyxiation. It is not clear if this two tefachim equivalent for water extends to other depths as well; for example, if the pit is eight tefachim deep and two are water or seven tefachim and three are water.

IYH in the next lesson we shall discuss the extent of liability.

The subject matter of this lesson is more fully discussed in volume X chapter 410 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