Damaged In My House

Question: Is a person liable for accidental damage that he causes to a person who enters his house without permission?

Short Answer: There is a dispute whether the homeowner is liable for accidental damage where he is aware of the trespasser. The Shulchan Aruch appears to hold that he is exempt from liability.

 

Explanation:

I. The Source

The Gemara (Bava Kama 48a) states, in the name of Rava, that if one person (“Reuven”) allows his ox to enter into the property of another (“Shimon”) without Shimon’s permission, and the ox actively damages Shimon or Shimon is damaged via tripping over the ox, Reuven is liable.

The Gemara adds, also in the name of Rava, a similar halachah but with Reuven himself, instead of with his ox. If Reuven enters into Shimon’s property without Shimon’s permission, and Reuven damages Shimon or Shimon gets damaged by himself (“huzak”) such as tripping over Reuven, Reuven is liable. However, notably, Rava concludes that if Shimon damages Reuven, Shimon is not liable.

The Gemara continues by citing Rav Papa, who notes that Shimon is not liable for damaging Reuven only if Shimon is unaware of Reuven’s presence in the house. If Shimon knows, however, that Reuven entered the house – even if he never gave Reuven permission to enter – Shimon is liable if he damages Reuven. The reason why he is liable is because Shimon has a right to kick Reuven out of his house, but he doesn’t have a right to hurt him.

 

II. Rashi vs. Rambam

The above interpretation of the Gemara follows Rashi’s understanding. In other words, according to Rashi, regardless of whether Shimon intended to hurt Reuven or whether it was accidental, Shimon is always liable if he knew that Reuven was on his property.

The Rambam (Hilchos Choveil U’Mazik 6:3), on the other hand, understands the words of Rav Papa differently. The key determinant is not whether Shimon had knowledge of Reuven, but rather whether Shimon intentionally hurt Reuven or whether it was accidental. In other words, the Rambam writes that Shimon is not liable for damaging Reuven, even if Shimon knew Reuven was on his property, as long as Shimon did not intend to damage Reuven. This is clear from the words of the Maggid Mishneh (ibid). See also Biur HaGra (Choshen Mishpat 378:17).

 

III. Another Application

Another application of the machlokes between Rashi and the Rambam is where both Reuven and Shimon have permission to enter a certain area and Shimon, despite knowing that Reuven is there, accidentally damages Reuven. According to the Rambam (ibid), Shimon is not liable. According to Rashi, if Shimon knows that Reuven is there, Shimon is liable, even if he accidentally damages Reuven.

 

IV. The P’sak

The Shulchan Aruch (Choshen Mishpat 378:4 & 6) appears to rule like the Rambam. Shimon is not liable if he damages Reuven accidentally, even if he is aware that Reuven is in his house. The Shulchan Aruch does cite the opinion of Rashi, however, at the end. However, it sounds like the Shulchan Aruch ultimately follows the opinion of the Rambam.

However, from the very next halachah (Choshen Mishpat 378:7), it sounds like the Shulchan Aruch paskens like Rashi, as the Shulchan Aruch rules that if Shimon damages Reuven in a place where they both have permission to enter, and Shimon knows that Reuven is there, Shimon is liable, even if he damages accidentally.

The Aruch HaShulchan (378:16) answers the contradiction in the Shulchan Aruch by explaining that really the Shulchan Aruch holds like Rambam, but only with respect to the property of Shimon. In other words, according to the Shulchan Aruch, Shimon is only exempt from liability when damaging Reuven accidentally when the tort occurs on his own property.

The sefer Orchosecha Lamdeini (3:162) challenges this answer of the Aruch HaShulchan based on the words of the Shulchan Aruch (Choshen Mishpat 421:7), which implies that we pasken like Rashi, that Shimon has liability for accidental damages when he is aware of Reuven, even where the damages occur on Shimon’s property.

 

V. The Upshot

The opinion of the Shulchan Aruch is thus unclear, whether Shimon is liable for accidental damage of Reuven, when he is aware that Reuven is on his property.

Regardless, contemporary poskim rely on this Shulchan Aruch in many ways. For example, the sefer Divrei B’niyahu (18:63) understands that the Shulchan Aruch paskens like the Rambam. Accordingly, he rules that if a person leaves his bicycle in a public area – where it should not be left, such as by a school courtyard – and a person throws a ball back into the school courtyard, even though he sees the bike, and it damages the bike, the thrower is not liable.

Further, Rav Yekusiel Lieberman (Gam Ani Odecha, 166) holds that if a child’s wagon is left in a private parking spot, and the driver accidentally hits the wagon, the driver is exempt, based on the Shulchan Aruch ruling like the Rambam.

Similarly, the Chashukei Chemed (B’choros 35a) rules like the Rambam, and thus holds that perhaps boys are not liable if they dance at a wedding and accidentally knock over the elderly grandfather of the chasan and damage him, as even if they saw him, the grandfather entered their “r’shus.”

On the other hand, the Orchosecha Lamdeini (ibid) disagrees with certain poskim who held that a person who built a sukkah in a public courtyard – designated for Sukkos – is not liable if he accidentally damages another person’s utensils that remain in the courtyard, despite being told to remove them. The Orchosecha Lamdeini holds that he is still liable, as in the opinion of Orchosecha Lamdeini, the Shulchan Aruch in fact paskens like Rashi.

 

VI. Explanation of the Machlokes

The sefer Klalei Hilchos N’zikin (p. 12) suggests a possible explanation of the machlokes between Rashi and the Rambam.

Why should there be an exemption at all for damage done on Shimon’s property? Don’t we say “Adam muad l’olam”? See Article #1. Three answers are provided. First, perhaps this is a case of oneis gamur, which is an exemption to liability according to some opinions. See Article #2. Second, perhaps Shimon is exempt from liability because Reuven was negligent for entering Shimon’s property without permission. Third, a person is allowed to do what he wants within his own property, as he does not need to “watch” himself in his own property.

Accordingly, Rashi, who holds that Shimon is liable – even for accidental damage – when he knows Reuven is in his property, understands that generally the exemption is based on “oneis gamur.” Thus, there is no “oneis gamur” where Shimon actually knows about Reuven’s entry into his property. On the other hand, the Rambam, who holds that Shimon is exempt from liability for accidental damage, even when he knows about Reuven’s entry, understands that generally the exemption is based on Reuven’s negligence and/or the fact that Shimon need not watch himself in his own property. Thus, Shimon is exempt even if he actually knows about Reuven, as Reuven is still negligent, and Shimon is still on his own property.


 Rabbi Ephraim Glatt, Esq.  is the Associate Rabbi at the Young Israel of Kew Gardens Hills, and he is a Partner at McGrail & Bensinger LLP, specializing in commercial litigation. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it.