Question: Is a person liable for damages caused to his friend who is injured by slipping on the person’s item, which broke and was left lying on the floor?
Short Answer: No, a person is generally not liable for damage caused by his broken object. There is a dispute, however, if he is liable where he could have picked it up but did not do so.
Explanation:
I. The Source
The Mishnah (Bava Kama 28a) states a machlokes when there is liability when a jug breaks in a public thoroughfare such as a street, and a pedestrian is damaged from the shards or water from the broken jug. The Tana Kama holds that the jug owner is liable, while Rabbi Yehudah holds that the jug owner is only liable if he had “intent.”
The Gemara (ibid, 28b-29b), after much debate and discussion, appears to conclude that the Tana Kama, who is Rabbi Meir, and Rabbi Yehudah (the chachamim) disagree about a case where the pedestrian was damaged after the jug already fell (as opposed to during the fall). Rabbi Yehudah only holds the jug owner is liable when he intends to reacquire the broken shards or spilled water. Otherwise, the jug owner is not liable, as he was presumably “mafkir” the shards/water and they are no longer his items when they damage the pedestrian.
The Shulchan Aruch (Choshen Mishpat 412:4) rules like Rabbi Yehudah, that the jug owner is not liable unless he intends to reacquire the broken shards. Notably, the jug owner is liable “biydei Shamayim,” even if he did not intend to reacquire the shards, if he had time to clean up the shards but did not do so.
II. The Waiting Game
But what about if the jug owner waits a bit before giving up ownership of the shards or water? In other words, the jug owner thinks that he will perhaps be able to salvage the shards and starts collecting them. However, at some point, he stops and contemplates whether he should bother picking up the remaining pieces. He eventually decides to give up on collecting them and is mafkir them. Shortly thereafter, the pedestrian is damaged. Is the jug owner liable for damage to the pedestrian?
The Riva (cited in Shitah M’kubetzes, Bava Kama 29a) holds that the jug owner is liable if he was not mafkir the shards before the time it would take him to pick up the pieces. Thus, if the jug owner waited a bit before being mafkir, he is liable for subsequent damage, even if that damage occurred after he finally decided to be mafkir the shards.
The Shitah M’kubetzes (48a) similarly cites Rav Yeshaya, who understands that this is the opinion of Rashi as well. Rashi (Bava Kama 48a) comments that a person is liable for damage caused by his camel that fell over, as the person did not help his camel stand back up. Even though the person later was mafkir the camel, we view it as his camel, because he did not stand it up when he could have.
The Hagahos HaOshri (Bava Kama 3:64, see Biurei Sugyos, Bava Kama 1:21), on the other hand, disagrees and holds that there is no difference between a case where the jug owner could have cleaned up the shards and where he could not. In both cases, the jug owner is not liable where the jug smashed by accident. Indeed, the Bach (Choshen Mishpat 411) codifies this opinion without much discussion.
The sefer Klalei Hilchos N’zikin (p. 225) cites the Imrei Moshe who explains this machlokes. The Riva understands this case as if the jug owner himself dug a pit by not picking up the shards, and thus he is liable even if he is subsequently mafkir his pit. The Hagahos HaOshri, however, understands this case as if the jug owner’s “mamon” created a pit, and thus the jug owner is not liable if he is mafkir his mamon.
III. The Falling Wall
The Gemara (Bava Kama 6a-6b) states a case about a wall or tree that falls and damages someone. The owner of the wall or tree is not liable. However, if he was warned that the wall or tree might fall and was given a set time by beis din to remove it, but failed to do so, he is liable for subsequent damage if it falls.
Tosafos (ibid, 6a) queries why the owner is liable: Isn’t it a classic case of damage done after an accident, where we said (above) that the owner is not liable? Tosafos answers that since the owner here was warned to cut down the tree or remove the wall, it is tantamount to negligence and not comparable to a case where damage was done by hefker items after an accident.
The sefer Divrei Mishpat (cited in the sefer Sedurah Mishnaso, Bava Kama, siman 26) uses this Gemara (and Tosafos’ explanation) to ask a question on the opinion of the Hagahos HaOshri/Bach, who held that that there is no difference between a case where the owner could have cleaned up the dangerous item and where he could not. In both cases, the owner is not liable if the dangerous item smashed by accident.
Asks the Divrei Mishpat, the case of the falling wall proves that the owner is liable, even if caused accidentally, as long as the owner could have prevented the danger. This contradicts the Hagahos HaOshri/Bach.
The sefer Imrei Moshe (cited in the Sedurah Mishnaso, ibid) answers that the cases are actually quite different. The reason why the owner of the falling wall is liable is because he was warned about this dangerous object when it was still in his possession. Thus, if it falls, he is liable. On the other hand, in our case with the broken jug, since the item is already “mamon ha’mazik” BEFORE the owner becomes negligent, the owner is not liable.
IV. Into Another’s Field
The Mishnah and Gemara (Bava M’tzia 117b-118a) adds another wrinkle to this topic. The Mishnah states that if Reuven’s wall falls into Shimon’s property, and Shimon tells Reuven to remove it, Reuven cannot simply tell Shimon that Shimon must remove it, because they are now his rocks. The Gemara clarifies that Shimon’s field does not acquire these “hefker rocks” because Shimon tells Reuven to get rid of them.
Tosafos asks why Shimon does not automatically acquire these rocks: Don’t we say that Reuven is not responsible for damage done after accidental danger occurs and he is mafkir the dangerous item? Tosafos answers that this rule does not apply here, as Shimon clearly expressed a lack of interest in acquiring the items.
The sefer Mishpat Shlomo (2, p. 19) cites the Reshash who gives a different answer to Tosafos’ question. We do not apply this rule – that Reuven is not responsible for damage done after accidental danger occurs and he is mafkir the dangerous item – where the dangerous item falls into another person’s property.
Mishpat Shlomo likewise notes that, according to the Riva, who holds that one is liable for damage done after accidental danger occurs and he is mafkir the dangerous item if there is time for him to have prevented the damage, Tosafos’ question falls away. Here, Reuven is still liable for damage done by his rocks on Shimon’s property, because Reuven could have removed them before he was mafkir them (i.e., before they fell or before they stayed in Shimon’s field).
V. Practical Applications
The sefer Otzar HaMishpat (2, p. 463) was asked about a consumer who ate bread that had a pebble in it. The pebble broke the consumer’s crown on his teeth. The Otzar HaMishpat ruled that the bakery was not liable, as they were undoubtedly mafkir this dangerous item. They also were not in a position to remove the dangerous item.
The Chashukei Chemed (B’choros 40b) cites another relevant case. A branch was blown off a tree in a person’s yard (by an abnormal wind) and landed in his neighbor’s yard. The branch subsequently was blown – the next day, by another abnormal wind – from the neighbor’s yard into a third yard, where it damaged the house. The Chashukei Chemed ruled that the original owner is not liable, as he was mafkir the branch, which fell off due to an accident.
Similarly, the Chayei Levi (10:175) writes that one is not obligated to remove his tree that falls into his neighbor’s yard, as he is presumably mafkir the tree immediately.
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..
