Lesson # 315 (part three) • Damage caused by a Pit (BOR) A man is walking to work in New York City. It is a snowy day and the sidewalk is covered with ice and snow. The man slips on the ice and falls in front of a large office building, and is injured, with perhaps some broken bones. A passerby calls for an ambulance that takes him to the hospital. On the way to the hospital the injured person takes out his cellphone and calls his lawyer, who arrives at the hospital only a few minutes before the injured man. The lawyer tells the injured person not to talk to anyone about the occurrence; the lawyer then speaks to the doctors treating the man. The lawyer tells the injured person that with the type of occurrence and the type of injuries there may be a substantial recovery from the insurance company of the landlord where the fall occurred. When some lessons back we began the discussion of torts, civil wrongs, it was stated that in halacha all torts can be one of four classes. (1) a person causing injury or damage; (2) a person’s animal causing injury or damage; (3) a person’s pit causing injury or damage; and (4) a person’s fire causing injury or damage (arson). Following the sequence of the Shulhan Aruch we have covered classes (1) and (2) in a long series of lessons. We are now about to begin to discuss topic (3), damage or injury caused by a person’s pit. The Torah’s basis for Reuven’s liability for damage caused by his pit is from the verses “If a man shall uncover a pit, or if a man shall dig a pit and shall not cover it, and an ox or donkey shall fall into it, the owner of the pit shall make restitution. He shall return money to its owner and the carcass shall be his” (Sh'mot 21:33-34.) Rambam includes judging the laws of pit as one of the 613 commandments: Positive Mitzva #238: “The law of injuries caused by pit. By this commandment we are commanded concerning the laws of pit. It is contained in His words: If a man shall uncover…” Pit is the only one of the four different types of causes of damage that is deemed to have been created from the outset with the potential to cause damage; otherwise why would one dig a hole in the street? Nevertheless, in those situations where there is good reason to dig the hole, the law does not change. Lack of intent to cause damage is not relevant; it is the act that is determinative. The pit is the only one of the causes of damage that does not move to cause the damage but rather causes damages where it was dug. The same applies to its sub-categories; they all remain in place. Reuven digs a pit. Or Levi had dug a pit and Levi covered the pit with a suitable cover. For example, Brooklyn Union Gas Company dug a hole in the ground to replace a gas unit and they placed a steel plate over the hole until they would have a chance to fill in the hole with asphalt. Reuven took off the cover from the pit so that the pit is now exposed. Shimon’s ox or any other domestic animal or wild animal or bird that belongs to Shimon falls into the pit and it dies. Reuven must pay for the loss sustained by Shimon. Reuven is liable whether: (1) he himself dug the pit, or (2) he uncovered a pit that was previously dug by him or by a third party, and covered by himself or by the party who dug it. The size and shape of the pit do not matter. The pit can be long, square, oblong, round or any shape into which a person, animal or vessels can fall; it may consist of furrows, a cave, cistern, well, or any other opening dug into the ground. It may be narrow on top and wide on the bottom, or wide on the top and narrow on bottom. Reuven is liable whether he deliberately or inadvertently dug or uncovered the pit. Reuven is liable whether he himself dug the pit, purchased it, inherited it or received it as a gift. Reuven is liable even if the pit was full of wool shearings or the like that may soften the fall for the animal, person or vessel. Assume that Reuven’s animal digs a pit in a public street. Reuven is not liable if Shimon, Shimon’s animal, and/or Shimon’s vessels are killed, injured or damaged by falling into the pit. This is the case in spite of the fact that the pit was dug in such a place and in such a manner that Reuven would have been liable had he dug the pit himself. In this, the tort of pit is unlike the other torts whereby damage is caused by Reuven’s animal “with its horn” “with its tooth” or “with its foot”. In these latter situations, Reuven is liable for the damage caused by his animal. However, if Reuven’s animal digs a pit in Reuven’s domain or the pit develops by itself in Reuven’s domain, for example, constant rain causing a crevice in the earth) then Reuven is liable in those situations in which he would be liable if he himself had dug the pit. In these situations Reuven is liable because he has the obligation to fill or cover the pit that his animal dug or that forms by itself and he fails to do so. Raising a mound or placing an object in a public street is comparable to digging a pit in a public street. The location of the pit may determine Reuven’s liability if someone or something falls into the pit. The pit that Reuven digs or uncovers may be in one of three locations: in the public street, in Reuven’s domain; or in Levi’s (a third party’s) domain. Shimon is the one I have designated as the person who falls into the pit dug or uncovered by Reuven. As will be seen IYH in the next lesson there is a difference if the pit is dug or uncovered in a public street, Reuven’s domain or Levi’s domain. 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 [The Parshat
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