Question: Is a driver liable for damage caused by the car that he is driving? What about if he is riding in his self-driving car that damages?
Short Answer: According to most poskim, a driver of a car that damages is considered adam ha’mazik and is liable as if he did the damage himself. A self-driving car is more complicated, as it is likely mamon ha’mazik, a case where the possessions of a person caused damage.
Explanation:
I. T’shuvas HaRosh
The Mishnah in Bava Kama (32a) states that if one person is running in a r’shus ha’rabim and another person is walking in r’shus ha’rabim and they collide, both are exempt from damages. The Gemara notes that this contradicts the ruling of Issi ben Yehudah, who held that the runner is liable because he was acting outside the norm by running instead of walking. The Gemara concludes that we follow the opinion of Issi.
The Rosh (T’shuvos 101:5) discusses a case where riders on horses accompanied a chasan, also on a horse. One of the riders, who was riding behind the chasan, drove his horse very quickly and accidentally bumped his horse into the chasan’s horse, thereby causing it great damage. The rider argued that he was not liable for damages, as they were riding in r’shus ha’rabim, where everyone has permission to ride. The Rosh framed the question: Is the damage caused by the horse with the rider considered an act of “regel” (which is exempt in r’shus ha’rabim) or an act of the person/rider (which is liable in r’shus ha’rabim)?
The Rosh answers that no person has permission to run in r’shus ha’rabim, as set forth in Bava Kama (32a) according to Issi ben Yehudah. Thus, the rider had no permission to drive the horse quickly. The damage is considered as if the rider damaged the chasan’s horse with the rider’s own body, and he must pay damages.
The Shulchan Aruch (Choshen Mishpat 388:9) codifies the ruling of the Rosh.
II. The Chazon Ish’s Question
The Chazon Ish (Bava Kama 4:8) questions the ruling of the Rosh. Why is this considered as if the person caused damage with his body? If anything, the horse caused the damage. If a wagon pulls a horse, the wagon does not become like the horse. Only the horse’s accoutrements such as its saddle becomes like the horse. Similarly, if a person pulls a wagon, the wagon becomes like the person. However, if the person merely sits in the wagon, the person becomes like the wagon. Therefore, a person riding an animal becomes like the animal, not vice versa.
The practical implication of this machlokes between the Shulchan Aruch and the Chazon Ish is whether the tortfeasor is liable for damage in a r’shus ha’rabim and whether he is liable for payments other than nezek if he damages a person (such as pain and suffering, medical bills, etc.).
III. The Modern Day Car
What about a car? Is a car subject to this same machlokes? In other words, according to the Chazon Ish, is a person exempt from damages if he causes damage with his car on a public street?
The sefer V’Darashta V’Chakarta (3:22) suggests that even the Chazon Ish agrees that a car is like an adam ha’mazik, as the person controls the car through his driving. This is akin to a person pulling a wagon, where the person is liable as an adam ha’mazik. Accordingly, V’Darashta V’Chakarta rules that a person driving a car is liable if he drives through water and dirties a pedestrian, as long as the damage was avoidable if the driver would have slowed down. See also Higaleh Na (2:120).
Similarly, the Pischei Choshen (N’zikin 3:3, n. 6 [p.75]) holds that a driver of a car is liable for damage caused by the car. However, if the car rolls down a hill by itself, there is a machlokes whether the driver is liable (see ibid, p.65). To that end, Rabbi Tzvi Spitz (Mishpetei HaTorah, Bava Kama, p. 99) is clear that if a car damages by itself – e.g., by blowing up due to malfunction when stationary – it is only considered “m’mono ha’mazik” and might not be liable in certain circumstances.
IV. Self-Driving Cars
Interestingly, Rabbi Yosef Zvi Rimon shlita, in a recent edition of the Jewish Action, was asked by Rabbi Dr. Ari Zivotofsky about a case where “a self-driving car causes harm to property – or, G-d forbid, kills someone. Although there may have been a human in the car, an autonomous system – AI – was in full control of the vehicle. Who is responsible? The driver? The programmer? The owner of the vehicle? The company testing the car’s capabilities? The manufacturer?” (See https://jewishaction.com/religion/jewish-law/the-next-frontier-in-jewish-law-artificial-intelligence/.)
Rabbi Rimon responded by citing the Rosh and noting that with “regard to a self-driving car, however, the car is in control, and therefore the halachic category of adam ha’mazik does not apply; rather, the category of mamon ha’mazik, property that causes damage, applies. This is similar to a case where a bull gores a person and injures him, which is classified as mamon she’hizik. Assuming the autonomous car has the status of mamon she’hizik, who is going to take responsibility? It would seem that the owner of the car would have to take responsibility, since the car is his property.”
However, Rabbi Rimon notes that “unlike the cases of mamon ha’mazik discussed in the Gemara, the owner of the vehicle could argue, ‘Why am I to blame? There is someone out there who programmed the car.’ One could counter that as the owner, he was obligated to ensure that the programmer’s work was up to standard, and if he did not do so and his property caused harm, he is accountable.” Rabbi Rimon concludes that the “underlying question here is how halachah defines the basis of the owner’s responsibility for damage caused by his property. Is an owner inherently responsible for damage caused by his property, unless there are circumstances beyond his control? If this is so, he would be responsible for damage caused by a self-driving car, unless he can prove there were extenuating circumstances. Or is he only responsible for damages that were caused due to negligence on his part, e.g., he didn’t take sufficient security measures to ensure his animal or property would not cause damage? In that case, it would have to be determined that there was some degree of negligence.”
V. Another Application
The Chashukei Chemed (Y’vamos 79a) cites a wild case, where a person had a heart attack mid-drive and pulled to the side. Hatzalah took him to the hospital, and he left his car on the side of the road. When he was discharged from the hospital a few days later, he was surprised to find his car was in his driveway. Apparently, his friend heard what happened and drove it home for him, as a chesed. A few days later, however, the owner of the car received numerous tickets in the mail from the day that his friend drove the car. When he explained to the authorities that he was in the hospital during that date, the authorities told him that he is liable unless he tells them who drove the car that day. His friend told him that he had no license and would be jailed if he was ratted on. Should the owner provide his friend’s name to the authorities?
The Chashukei Chemed, citing the Minchas Yitzchak, rules that the owner should absolutely rat on his friend, even if the friend did him a chesed, as the friend is causing danger to others. Chashukei Chemed supports this ruling from our Rosh (above), that the driver is an adam ha’mazik and responsible for his actions.
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..
