Q: What are the basic categories of damage for which a person is liable?

A: There are seven basic categories of damage. A person is liable for damage that he himself did, whether damage to another person’s property (adam hamazik) or injury to body (chovel).

In addition, a person is liable for damage caused by his animals, whether through aggressive behavior (keren), eating (shein), or regular walking (regel).

A person is also responsible for a fire that he lit, even if it is spread by wind (eish).

He is also responsible for stationary items of his that damaged others who stumbled on them (bor).

These categories of damage are mentioned in Parashas Mishpatim (Shemos ch. 21-22) and addressed mostly in maseches Bava Kama. There are many halachos specific to each of these categories. Some apply only in certain places, whereas others apply everywhere; most pay full value, whereas others only partial value or contain multiple payments; some apply only when negligence was involved, whereas others even when by accident; some can be adjudicated by beis din nowadays, whereas others cannot be adjudicated directly.

Q: Is a person liable for damage that he did unintentionally?

A: The Mishnah (B.K. 26a) teaches: “A person is always considered mu’ad (prone to do damage), whether accidental or intended, whether awake or asleep.” The Gemara (26b) adds that he is liable even for oness (uncontrollable actions) as for willing actions. Therefore, a person who was blown off a roof by an unusually strong gust of wind is liable if he caused damage (27a).

Some understand this rule literally, that a person is obligated even for circumstances beyond his control. This is the simple understanding of the Rambam (Hil. Chovel Umazik 6:1) and Shulchan Aruch (C.M. 378:1-2; Shach 378:1).

Tosafos (B.K. 27b), on the other hand, limits this rule to uncontrollable circumstances that contain an element of carelessness. However, a person is not liable for cases of oness when there is no element of fault. The Rema follows this opinion (378:1; 421:4).

Even according to the stringent view, a person is not liable for oness if the damaged party was negligent in leading to the damage (421:4) or if the incident was a great oness, totally beyond his control (378:3; Pischei Choshen, Nezikin 1:6-9).

Q: I knocked someone’s sefer off the table, ruining the binding completely. What do I owe him for the damage?

A: A person who damages an item is responsible to repair it, if the repair is typical, or to pay the value of the damage, if the repair is not typical. Thus, if the book can be sent to a professional binder who will repair it fully, you owe the cost of the repair (C.M. 387:1; Shach 387:1).

If the item is a total loss — not repairable and ruined completely — you owe the value of the item at the time of the damage, taking into account the age of the item and its condition. You are not liable, however, for the full cost of a brand-new item (see Mishpetei HaTorah I:24).

If the item is not repairable but still usable — even for parts — you owe the difference between the item’s value before and after the damage. You are not required to take the broken item and replace it with an intact one (403:1). [Some people prefer to do this in any case as a gesture of good will, even though there is no halachic need.]

Q: While renovating my property, may I break a hole in my neighbor’s fence without his permission, with intention to repair it or pay for its repair later?

A: The Shulchan Aruch writes: “It is forbidden to damage another’s property (C.M. 378:1).” Some consider damage a form of theft. Just as one may not steal with the intention to repay (348:1; 359:2), one may not damage with the  intention to repay. Some even view a person who intentionally damages as wicked and disqualified from giving testimony.

Others derive the prohibition to damage from the obligation to return lost items. If we are required to protect another’s property and return it to him, all the more so (kal v’chomer) we may not damage it (see Pischei Choshen, Nezikin 1:[1]).

Furthermore, it is prohibited to wantonly damage or destroy even one’s own property. This is included in the prohibition of bal tashchis (“do not destroy”). However, if done for a purpose or need, this is permissible (P.C., Nezikin 1:2-3).

Cutting down fruit-bearing trees unnecessarily involves a clear violation of bal tashchis and a potential danger. It is permissible only in certain circumstances; a Rav should be consulted (Pischei Teshuvah, Y.D. 116:6).

Q: Is a minor or someone who is mentally incompetent liable for damage they do?

A: A child under bar mitzvah or a mentally incompetent person who damaged is legally exempt, since he has no legal culpability. Even when the child matures, he is not legally accountable for the damages of his childhood (C.M. 424:8).

Beis din or his parents should discipline the child for having damaged, though, so that he should not continue damaging (C.M. 349:3,5).

Nonetheless, Rav Ashi was made to pay for a loan document that he destroyed when he was a child (B.K. 98b; Rashi). Many authorities derive from this that the child has a moral responsibility to pay when he matures. Nowadays, the parents usually pay instead, to relieve him of that responsibility (see Pischei Choshen, Nezikin 10:[115]).

Rema (O.C. 343:1) also writes that if a child sinned, it is proper that he do something for atonement when he matures. Thus, if he damaged, it is proper to pay (Mishnah Berurah 343:9). Some infer that it is not necessary to pay the full amount, but Sefer Chassidim advocates paying fully to achieve complete atonement (Pischei Teshuvah, C.M. 349:2; Yechaveh Daas 8:6).

Q: Two people were running or walking on a sidewalk and accidentally collided, injuring each other and damaging their packages. Are they liable for the mutual damage?

A: Two people who were both walking or both running in public property are liable if they actively injured or damaged each other, but not if they merely collided and were injured or damaged incidentally. According to the Rambam, this means any unintentional damage, but according to Rashi and the Shulchan Aruch, they are liable for any active damaging (such as by swinging an arm or bag) even if unintentional (C.M. 378:7; Gra there).

If one person was running and the other was walking, the person who was running is liable, since he had no permission to run on the sidewalk where people are walking (378:8).

However, if the person was running on Friday afternoon to make arrangements for Shabbos, he is equivalent to the one who was walking, since he is permitted to run then. Thus, he would also be exempt if the two merely collided. The same is true regarding someone who was running to save another person’s life (see Aruch Hashulchan 378:119; Pischei Choshen, Nezikin 1:[72].)

Q: While my roommate was frying chicken, I accidentally spilled milk into the frying pan, rendering the chicken and frying pan non-kosher. What am I liable for?

A: Damage that is not physically discernible but only halachic is called hezek she’eino nikar. A person is legally liable for such damage only if done intentionally, but not if it is accidental (C.M. 385:1). This is because, in principle, damage that is not physically evident is not considered damage. Nonetheless, the Sages declared a person who intentionally damaged in such a manner liable - having to pay a fine - to prevent people from doing so. [Some authorities limit the liability to three specific cases mentioned in the Mishnah (Gittin 52b; see Shach 385:1.)]

Here, the taste of the milk is noticeable in the chicken. It is therefore considered hezek nikar, evident damage, and you are liable for the cost of the chicken (Ksav Sofer, C.M. #26).

However, there is no physically evident damage to the frying pan. Therefore, since it is hezek she’eino nikar, you are not legally liable if you spilled the milk by mistake (see Pischei Teshuvah, C.M. 385:1). Nonetheless, there may be a moral responsibility to pay (Pischei Choshen, Nezikin 1:[54]).

Q: What types of damage can beis din adjudicate nowadays?

A: In principle, adjudicating requires dayanim who maintain an unbroken chain of authority back to Moshe Rabbeinu. Although we lack this nowadays, the Sages authorized adjudicating cases that are considered common and entail a loss of principal (C.M. 1:1).

Thus, beis din today can adjudicate a person who damaged another’s property (adam hamazik). Injury to another person (chovel) cannot be adjudicated fully, since it is not considered common, nor does it entail loss of principal (ibid. 1:2). They can adjudicate cases of an animal that damaged through eating (shein) or regular walking (regel), but not through unexpected aggressive behavior (keren [ibid. 1:3]). There is a dispute whether beis din can adjudicate cases of fire (eish) and stationary items that damaged (bor) (see Shach and Pischei Teshuvah 1:2).

Even when beis din is not legally authorized to adjudicate, the damaging party has a personal obligation to pay. Beis din can impose a ban on him until he pays, and if the victim grabs payment, he is entitled to keep it. Some say that beis din can even assess the damage to determine how much is owed (C.M. 1:5; Pischei Choshen, Nezikin 10:4).

Q: What are grama and garmi?

A: A person is liable for damage that he directly inflicted. However, the Gemara (B.K. 60a) states that one is legally exempt from indirect damage that he caused (grama). On the other hand, many authorities rule that we judge cases of garmi, which also seems to be a form of indirect damage. How do we resolve this seeming contradiction? (See Pischei Choshen, Nezikin 3:2.)

Rambam, cited by the Shulchan Aruch, indicates that these statements do, in fact, disagree, and we obligate for even indirect damage whenever the loss is clear (C.M. 386:1).

Other Rishonim differentiate between degrees of indirectness. Those cases more direct, immediate, or certain are called garmi, and one is liable; those less direct, delayed, or uncertain are called grama, and one is legally exempt (Rama 386:3). Nonetheless, there is a moral obligation to pay for indirect damage when it is committed intentionally (Shach 32:2; P.C., Nezikin 3:39).

Others maintain that, in principle, all indirect damage is exempt. However, our Sages imposed liability as a fine in certain common cases, which are then called “garmi.” Accordingly, we cannot extrapolate to other cases (see Shach 386:1).

Q: Does a person carry any responsibility for indirect damage (grama)?

A: A person who damages indirectly is not legally liable, but he carries moral responsibility for the damage until he pays (chayav b’dinei shamayim - Shach 32:2). If one who damaged indirectly does not pay, some consider him “wicked”. However, the victim may not grab payment from him forcibly, since there is no legal liability (Pischei Choshen, Nezikin 3:[92]; Shach 28:2).

Although a person is liable for direct damage even if accidental, one does not carry moral responsibility for indirect damage done accidentally, against his will (oness), or even in an attempt to save his own property (P.C., Nezikin 3:39).

If someone acted in a way that caused potential damage, but the damage has not occurred yet, beis din can force him to rectify the situation to prevent the damage or to accept liability for whatever damage may occur. This applies even if it will cost the person money to prevent the damage (Rema 386:3).

Furthermore, if a person contractually accepts liability for indirectly caused loss, the agreement is binding and is not considered asmachta, i.e. a stipulation that lacks the halachically required level of commitment to validate the agreement (P.C., Nezikin 3:42).

Q: I broke someone’s professional tools, rendering him unable to work for a week. Must I compensate him for his lost earnings?

A: The Yerushalmi (B.M. 5:3) writes that in a case of mevatel kiso shel chaveiro - a person restrained his friend’s money and prevented him from earning profit - the friend has only a complaint against him (Pischei Choshen, Nezikin 3:29). Many authorities consider mevatel kiso shel chaveiro a form of grama. As such, there remains a moral obligation. However, since there is no loss of capital, some maintain that there is not even a moral obligation, only a “complaint” (see Shach 61:10, 292:15; Responsa Imrei Binah #1).

If there is a definite loss of profit or regular earnings, some maintain that there is a legal liability of garmi. However, others maintain that preventing clear profit also remains grama (see Aruch Hashulchan 61:11; P.C., Nezikin 3:[72-73]).

Even one who withheld another’s money and earned profit from it does not have to share the profit with the owner. However, if the owner demanded the money back in order to invest it, but the recipient continued to withhold it, some maintain that he must share his profits from the money with the owner (Rema, C.M. 292:7).

Q: I arranged to meet a potential client in a distant city. I flew there and ordered an expensive meal for two, but the person cancelled the meeting. Must he reimburse me for the expenditures?

A: The Rema (14:5) writes that a person who agreed to adjudicate in a distant city and tells his litigant to go and he will follow, but does not, is liable for the needless expenditures that he caused. This is included in the liability of garmi, since the other litigant traveled based on his word.

However, if the other litigant chose to make additional expenditures not directly agreed upon, the person is exempt, based on grama.

Thus, the potential client must reimburse you for the flight, but not for the cost of the expensive meal, which was your own choice. There is a dispute whether he is liable for the flight if he was forced to cancel the meeting (Pischei Choshen, Nezikin 3:[64]).

You must bring evidence to the amount of the expenditures; otherwise, beis din will estimate their value. Even if you bring receipts, beis din should still ensure that the expenses were reasonable and logical (Pischei Teshuvah 14:16).

Q: Am I obligated to pay for destroying a check that was made out to someone else?

A: The Gemara (Bava Metzia 98a-b) teaches that one who burns a loan document is liable for the value of the loan as garmi, even though the document itself is not of inherent value (C.M. 386:2). The Rosh explains that this is because he actively damaged his friend’s property and the loss is definite; additionally, the damage is done immediately. The same would seem to be true if you destroyed a check (Pischei Choshen, Nezikin 3:[50]).

You can only be made to pay, though, if you admit (or there is evidence) to the amount of the check or loan document; the owner is not believed as to its amount (see Shach 386:13). If witnesses can testify about the loan document and the lender can collect on the basis of their testimony, you would only be liable for the value of the paper itself.

If you destroyed other legal documents — e.g. a title to a car or house, or legal evidence that caused one to lose a court case — this is usually not considered garmi, but rather grama, for which there is only a moral obligation (P.C., Nezikin 3:[51]).

Q: My friend was carrying some groceries. I hid and shouted, “Boo!” when he passed, startling him. He dropped a bag, breaking the eggs. Must I pay for them?

A: Frightening someone without physical contact, which caused him to become sick or injure himself, is considered grama (C.M. 420:32; Rama 386:3; Shach 386:24). We previously mentioned that grama is not an enforceable obligation but is certainly prohibited, and there is a nonenforceable responsibility to pay (chiyuv b’dinei Shamayim; B.K. 56a).

If there was also physical contact, e.g. you grabbed him when startling him, it is considered direct damage and you are legally liable for the eggs (C.M. 420:25,32).

The same laws apply if you chased after someone and he tripped while attempting to escape (Pischei Choshen, Nezikin 3:[37]).

A person is often liable for damage done by his animal, but it is questionable whether he has any obligation to pay for the grama of his animal. Thus, if your animal startled someone, there might not even be a chiyuv b’dinei Shamayim to pay. [Nonetheless, a person should not keep a pet that can scare people or is a nuisance to neighbors (P.C., Nezikin 5:43).]

Q: My friend was holding money in his hand. I knocked the money out of his hand and it rolled into the gutter and down a drain. We see it lying three feet below. Must I reimburse him?

A: The Gemara (B.K. 98a) writes that if someone knocked money into clear water and it can be retrieved by a diver, he is exempt. The money is still present and the cost of hiring a diver is incidental.

Nonetheless, the Shulchan Aruch, following the Rambam, rules that you are liable as a form of garmi. However, the Rema rules that this is considered grama and you are not legally liable, in accordance with the simple reading of the Gemara (C.M. 386:1, 3). The Shach (386:7) concurs with this ruling.

If it is not possible to retrieve the coin, though — e.g. the water is murky — you are liable even according to the Rema (see Pischei Choshen, Nezikin 3:[44]).

Furthermore, if you grabbed the coin and threw it away, you are then considered a thief. You are responsible to return the coin even if it entails expenses to do so, or to pay for it (see Shach 386:8).

Q: In a “territorial” dispute between two competing businesses, one party got a crime family involved who caused monetary damage to his competitor. What is the halachic perspective?

A: Exposing a fellow Jew’s property to a gentile strongman is a grave sin, known as mesirah (informing). Even if the potential harm is only monetary, there is serious concern that it could easily snowball into physical harm, and even a danger to life. A person who is moser forfeits his share in Olam Haba, is disqualified from giving testimony, and is sometimes considered a rodef, one who threatens someone’s life (C.M. 388:8-11).

A moser who caused his fellow Jew a loss through a strongman, whether gentile or Jewish, is liable for the damage that he caused. Many include this under the category of garmi, while others consider it a penalty imposed by the Sages. Nonetheless, he is liable even on the basis of his own admission (C.M. 388:2, 8; Pischei Choshen, Nezikin 4:8).

A person who was coerced to inform about his fellow’s property, whether under threat of death or physical harm, is exempt. There is a halachic dispute if he was coerced monetarily and informed against his friend to spare himself loss (C. M. 388:2-3; Shach 388:22).

Q: If a witness caused his fellow a loss by withholding testimony on his behalf or by testifying against him inappropriately, is he liable?

A: A witness who has the knowledge to testify has a mitzvah to testify on behalf of that party in beis din. If he withheld testimony and caused a loss, he is not legally obligated to pay since he did not actively damage, but he still has a nonenforceable liability (chayav b’dinei shamayim) as grama (C.M. 28:1; Pischei Teshuvah 28:4).

A person should not testify in a secular court unless the case was authorized to be tried there by beis din; otherwise, there will be a chillul Hashem if he refrains from testifying. Nonetheless, if a witness testified truthfully in a secular court, even in a manner prohibited by halacha, he is not liable for the loss he caused (28:3).

However, if a person testified falsely and caused a loss, he is liable to pay, even upon his own admission, as a form of garmi. Some maintain that if the witness retracted his testimony before the defendant paid, even if his retraction was disregarded by the beis din, he is exempt (C.M. 29:2; 38:1. See also Shach 38:1 and Pischei Teshuvah 38:1).

Q: What is the liability of one who assaults or inflicts physical injury on another?

A: A person who inflicts physical injury is liable for a five-part payment: nezek (disability), tzaar (pain), ripuy (medical expenditures), sheves (lost wages), and boshes (embarrassment) — whichever are relevant (C.M. 420:3).

Nezek relates to the inherent, permanent disability of the injury, such as loss of limb or ability to see or hear. Tzaar is payment for the pain and suffering associated with the assault or injury, even if there is no disability. Ripuy covers medical expenditures associated with healing the injury. Sheves covers the temporary loss of wages while the victim is convalescing. [Permanent loss of work due to disability is included in nezek.] Boshes covers the embarrassment inflicted on the victim through injuring or hitting him. This payment is required only when the perpetrator intended to embarrass or injure (C.M. 421:1, 11).

Beis din is limited nowadays in its ability to judge cases of physical injury and to enforce payment. Nonetheless, the culprit is obligated to pay and should be censured until he does so. If the victim is able to seize the amount owed, he may keep it (C.M. 1:2, 5).

Q: Two people got into a fight. One of them hit the other, who retaliated forcefully and injured the first person. Is the second person liable for the injury?

A: A person is allowed to hit back to protect himself from an attacker. However, if he could protect himself by inflicting minimal injury and he injured the attacker seriously, he is liable for the excessive damage (C.M. 421:13).

Similarly, once the parties have separated and the victim is no longer threatened, he may not hit the attacker back. If he subsequently hits and injures the attacker after cooling down, he is liable. There is a dispute whether he is liable if he hit back immediately after separating, while still heated by the fight, unless there is concern that the attacker might continue to hit him (see Sma 421:24; Taz 421:13; Pischei Choshen, Nezikin, 2:[30].)

If two people willingly agree to a wrestling match and one injures the other while throwing him down, he is exempt. The reason is that the two willingly submit themselves to potential injury and forgo claims, and it is difficult to control exactly how one fells his opponent (421:5; see P.C., Nezikin 2:10[34]).

Q: What is the halachic perspective on malpractice liability?

A: In general, a paid professional who damages is liable. If he served gratis, he is exempt if properly certified and not guilty of negligence (C.M. 306:4). An exception is made, however, for an officially appointed dayan who erred, since he has a mitzvah to judge. We consider his mistake an oness; he is exempt, even if paid (C.M. 25:2).

This applies also to a medical practitioner, who erred in the mitzva of healing. Thus, if officially licensed, he is legally exempt, but is nonetheless liable b’dinei shamayim. If he acted responsibly, yet the procedure was unsuccessful, he carries no liability whatsoever (Y.D. 336:1; Aruch Hashulchan Y.D. 336:2). Some also exempt the practitioner completely if he did not actively injure, but only prescribed inaccurately, as that is unintended grama or garmi (see Pischei Choshen, Nezikin 12:[17]).

However, if the professional has malpractice insurance, the company is liable to pay whatever is required by law. This is a contractual obligation of the insurance company to the professional and his clients, even if the court ruling is not in accordance with Torah law (Rav Z.N. Goldberg, Techumin, 19:322).

Q: Two people in a house got into a heated argument, and one walked away with a broken arm. What evidence must he bring to sue the other person?

A: Generally, we require the explicit testimony of two valid witnesses to collect payment and do not rely on circumstantial evidence. However, in injury cases, if there were witnesses that someone entered the house intact and exited injured, the Sages relied on the circumstantial evidence to allow the victim to swear that the other person injured him and collect (C.M. 90:16).

If the wound was such that cannot be self-inflicted, e.g. between the shoulders, this is considered definitive knowledge, equivalent to explicit testimony – and the victim collects without an oath. If a third person was in the house, but he could not have inflicted the injury – it is considered as if just the two people were present (see Pischei Teshuva 90:1; Aruch Hashulchan 30:17).

Although women and relatives are generally disqualified from testimony, the Rishonim instituted that in places where valid witnesses are usually not available, e.g. the women’s section or at sudden brawls, we can rely on them in certain instances (Rama 35:14; Aruch Hashulchan 35:13).

Q: A neighbor’s dog entered my yard. It trod on plants and chewed some rubber toys. Is the owner liable?

A: A person is liable for these two forms of damage done by his animal:

1) Regel refers to damage done by the animal in the course of normal walking, such as stepping on something or knocking it over. It also applies to damage done by items attached to the animal, such as a leash, saddle, or cart (C.M. 390:1). If while walking the animal kicked pebbles that caused damage, there is an oral tradition (halacha l’Moshe miSinai) that the owner pays only half the cost of the damage (390:3).

2) Shen refers to damage that the animal does for its enjoyment, such as eating, rubbing against a fence, or rolling on plants (391:1).

A person is not liable for regel and shen damage occurring in a public domain, but only for damage done to or on a victim’s property. If the animal ate in a public domain, the owner needs to pay only the amount of the minimal benefit that his animal is normally fed (390:2-3; 391:7-8).

Beis din is authorized even today to adjudicate cases of regel and shen, since they are common forms of damage that entail loss of capital (C.M. 1:3).

Q: One horse kicked another horse, injuring it. Is the first horse’s owner liable?

A: Vicious damage done by an animal not for its pleasure is called keren (horn), such as goring, pushing, biting, squashing, and kicking. Such behavior is considered unusual. The Torah limits payment to only one-half the value of the damage, and is payable only in the form of the damaging animal itself, up to its worth (C.M. 389:2, 5-6, 19). This payment is considered a knas (fine). Therefore, beis din is not authorized to adjudicate cases of keren nowadays, but the victim can grab the amount owed (C.M. 1:1, 5). There is a dispute whether the owner has a Heavenly obligation (chiyuv latzeis yedei Shamayim) to pay (Pischei Choshen, Nezikin 5:[18]).

Keren includes all types of unusual damage, e.g. eating food not normally eaten or jumping on something in an atypical fashion; this is not considered shen or regel (390:12; 391:2).

If the action is repeated three consecutive times, the animal gains the status of “muad” (cautioned) and full out-of-pocket payment is required. Nowadays, since beis din is not authorized to adjudicate, an animal cannot be made muad, but we require the owner to get rid of the animal (Aruch Hashulchan 389:12).

Q: If some youngsters incite a dog, who goes and bites another dog or a person, who is liable — the dog’s owner or the youngsters?

A: Both carry an element of liability. The owner is legally liable for his animal’s damage, as any other case of keren (horn) — unusual behavior by the animal not for its pleasure (C.M. 395:1).

We mentioned previously that keren pays only half the damage and that beis din is not authorized to judge keren nowadays, but the victim can grab the amount owed.

Aruch Hashulchan (395:1) suggests that if the youngsters physically beat the dog, the owner does not carry liability, but other authorities do not make this distinction (Pischei Choshen, Nezikin 5:[92]).

If the dog bites one of the youngsters who incited it, the owner is exempt, since the youngster brought the trouble upon himself.

The youngsters — since they did not damage directly, but only caused it by inciting the dog — are considered grama. Therefore, they do not have an enforceable, legal liability but rather a chiyuv b’dinei Shamayim on the full amount. If the dog’s owner paid for the damage, their moral responsibility would be to reimburse him (P.C., ibid.).

Q: I left some nails from a wood project on the sidewalk. They punctured the tires of a boy riding by on his bicycle. Am I liable for the tires?

A: Damage inflicted by any stationary obstacle, such as a nail, is included in the category of bor (pit). Whether the obstacle was placed there intentionally or through negligence, the person who created the obstacle remains liable, even if he disowned the obstacle and declared it hefker (C.M. 410:1; SM”A 412:9).

However, the Torah limits the legal liability of bor significantly, excluding damage to inanimate objects. There is legal liability only for injury or death of an animal or for permanent disability (nezek) to a person who was injured. Thus, there is no legal liability for the tires (C.M. 410:19-21; Aruch Hashulchan 410:26; Pischei Choshen, Nezikin, 7:[8]).

Nonetheless, the Gemara (B.K. 29a; 56a) indicates that the perpetrator is chayav b’dinei Shamayim for inanimate objects if he intended to damage. If he did not intend to damage, Rav S. Z. Auerbach, zt”l, maintains that there is no moral obligation (Minchas Shlomo, B.K. 29:4); the Chazon Ish remains doubtful; and Birkas Shmuel assumes that there is a chiyuv b’dinei Shamayim (P.C., Nezikin 1:[1]; 9:[53]).

Q: I left a shovel lying on the sidewalk. Someone tripped over it and fell. Am I liable?

A: An obstacle lying in a place where people walk is included in the damages of bor (pit), discussed last week. The owner is liable for permanent injury to people, but not for damage to inanimate objects (C.M. 410:1, 21).

There is a limitation to the liability of bor, though. The owner is liable only if the person was injured by the pit itself, or if he fell directly on the shovel and was injured by it. Similarly, if you spilled water and someone slipped and was injured by the ground covered by the water, you are liable (C.M. 411:1; Sma 412:9).

However, if the person merely tripped over your shovel, but landed on and was injured by the ground beyond it, you are not legally liable (only as grama), since the injury was inflicted by the natural ground (karka olam), which does not belong to you (Sma 411:3). If the ground beyond is your property, though, you are liable (Pischei Choshen, Nezikin 8:[4]).

Regardless, a person should surely be careful not to leave items where they can damage.

Q: I threw out a pile of branches to be collected by the sanitation department. If the branches got scattered and someone tripped over them, am I liable?

A: A person cannot free himself from liability for an obstacle (bor) by renouncing ownership (hefker), whether he placed the obstacle there or it fell there through his negligence. However, if the obstacle fell there through circumstances beyond his control, e.g. it was blown by an extremely strong wind, the owner can renounce ownership of the obstacle and exempt himself from subsequent liability (C.M. 412:1; 411:2).

Therefore, if you piled the branches carelessly, you remain liable. If you piled them carefully and they were scattered by a strong wind, you are exempt since you have no interest in maintaining ownership (see Pischei Choshen, Nezikin 8:[9]).

A person who was walking carefully and tripped is not considered negligent. Therefore, if something he was carrying broke or spilled when he fell, he can exempt himself of legal liability by renouncing ownership of the broken pieces. However, a chiyuv b’dinei Shamayim of grama remains if he could have cleared the obstacle away and did not do so (C.M. 412:4; P.C., Nezikin 8:[12]).

Q: I made a campfire in my backyard and completely surrounded it with rocks. A gust of wind blew the flame to some bushes, which caught fire and spread it to a neighbor’s property. What is my liability?

A: A fire that spread out of control is a form of nezek, even though it was spread by an external force - the wind. Similarly, any stationary item hurled by the wind that damages upon impact is included in the category of eish (C.M. 418:1; Pischei Choshen, Nezikin 9:[1]).

If a person lit a fire on his own property and it spread, he is liable unless he maintained sufficient clearance around the fire, depending on weather conditions and the type of fire. However, if he lit the fire in another person’s property without permission, he is liable even if it spread beyond a large clearance (418:2-5).

Some authorities question beis din’s ability to adjudicate cases of eish nowadays. According to most authorities, though, beis din is authorized to do so (see Shach 1:1; Pischei Teshuva 1:2).

Direct arson, igniting something, is not considered eish, but rather adam hamazik (P.C., Nezikin 9:[4]).

Q: On Lag BaOmer, I made a bonfire that spread and burned a pile of lumber in an adjacent yard. The owner claims that some valuable tools had been hidden in the lumber. Am I liable for them?

A: From the verses regarding fire damage, the Sages derive that one is not liable for something that is tamun — concealed or covered. This leniency applies only if one lit the fire on his own property, but not if he lit the fire on another’s property without permission. It is questionable whether it applies to a fire lit in a public domain (C.M. 418:13; Pischei Choshen, Nezikin 9:[12,56]).

Even if one lit the fire on his own property, if it spread continuously, he is liable according to most authorities. Only if there was a protective, intervening wall that fell — not on account of the fire — is he exempt (see P.C., Nezikin 9:21).

Intended fire, arson, is considered adam hamazik and the leniency of tamun is not relevant (Shach 418:6).

Thus, unless you lit the bonfire on your property and there was an intervening wall, you are liable for the tools, even though they were covered. The owner is believed, with an oath, that they were there, if it is reasonable.

Q: 1) I lit my Chanukah candles outdoors. Someone overturned them, starting a fire. Who is liable?

2) At a wedding, someone juggled with fire. The torch fell and burned a guest’s suit. Is the juggler liable?

A: 1) Even though it is a mitzvah to leave the Chanukah candles outside, you are responsible to look after them and ensure that they are secure (C.M. 418:12).

If an adult bumped into the candles and caused the fire, he is liable for the damage. However, if a child or an animal overturned them accidentally, you are responsible, since it is expected that children and animals will walk by outside (see C.M. 418:7-8; Pischei Choshen, Nezikin 9:[51]).

2) The Rema cites the common practice of exempting one who accidentally injures another during the joy of a mitzvah, such as on Purim or while dancing at a wedding (O.C. 695:2; C.M. 378:9), though this seems to apply only when the damaged party actively participates in the celebration.

However, a person who performs must take care not to damage the spectators, even when done for simchas chassan v’kallah, so the juggler would be liable.

Q: I lit a fire that burned a neighbor’s storage room. He claims to have stored there valuable works of art worth $100,000. Who has the burden of proof?

A: Generally, we follow the dictum ‘hamotzi mechavero alav hara’ayah’ (the burden of proof is on the plaintiff). However, Chazal instituted that in certain cases of monetary damage, fire, bodily injury or robbery, we believe the damaged party with an oath regarding the amount of the damage — if the amount is reasonable for the person in question and the circumstances of the damage (see C.M. 90:1; 388:1; 418:13; Pischei Choshen, Nezikin 10:36-39).

Thus, a wealthy person would be believed with an oath; one not regarded as wealthy would not be believed without witnesses or evidence [unless he can verify that he served as a guardian for someone liable to have entrusted such an item]. If the perpetrator definitively denies the amount claimed, the damaged party is not believed even with an oath in the case of a fire, but is believed in the case of robbery (Shach 388:1, 3; 418:7).

As mentioned previously, beis din discourages swearing nowadays and strives to mediate a compromise on the matter.

Q: A bird-lover set up feeding stations and resting places for birds in his yard. The neighbors complain that the flocks of birds dirty their adjacent properties, make excessive noise, and ruin their gardens. Do they have legal recourse?

A: Beyond the responsibility not to do actual damage, a person is responsible not to do things on his property that will adversely impact his neighbors’ property in a direct manner. This is known as nizkei shecheinim (see C.M. 155). This applies not only to monetary damage; our Sages also instituted various neighborly rights relating to privacy (hezek re’iyah), noise, smell, air, light and dampness.

Even if the person is willing to pay should damage occur, he is not allowed to create the potential damage. He may not be in a financial position to pay; the neighbor also does not want the hassle of repairing and litigating to recoup his loss (Sma 155:3). Even if the person already installed the damaging item, the neighbor can force him to remove it (Pischei Choshen, Nezikin 13:24).

Thus, if the birds dirty the neighborhood in a manner that is repulsive, the neighbors can force the person to remove his feeders (C.M. 155:39).

Q: I installed an automatic sprinkling system to water my lawn. After using it for a month, my neighbor claimed that the water was wetting his property and demanded that I move some of the sprinklers. Must I move them?

A: Although you are required to distance something potentially damaging from your neighbor’s property, if you placed it with his consent  you established a chazaka, and the neighbor can no longer demand that you remove it (C.M. 155:35).

Many authorities maintain that you do not need to purchase the right explicitly, nor wait three years. Even tacit acquiescence of the other person, by assisting you or by watching you place it and remaining silent in a manner indicating agreement, usually suffices to establish a chazaka immediately. Thus, after the month of silence, the neighbor cannot protest (Pischei Choshen, Nezikin 13:25[54]). Certain nuisances are considered so severe, though, that even if the neighbor remained silent for many years, he can force you to remove it. These include: consistent smoke, bathroom odor, heavy dust, and certainly, potential hazards. Still, if you explicitly acquired the right, the neighbor cannot renege (C.M. 155:36; Be’er Heiteiv 155:48; Nesivos 155:20).

Q: I noticed moisture on my ceiling, which increased to drops. The diagnosis was a leak in the plumbing of the apartment above mine. Who is responsible to fix the plumbing? What about the damage that already occurred?

A: It is certainly prohibited to pour water that falls directly onto another’s property in a damaging manner. One is also liable for such damage. If the water is minimal and gets completely absorbed in the ceiling at first, though, the person is not required to prevent it (C.M. 155:4).

However, in the case of a drainage hole that overflows and floods a neighboring basement, the Rosh required the person to move his drainage hole, because the damage is great and the damaged party has no easy way to protect himself (C.M. 155:20). On this basis, the owner of the upper apartment is required to fix his leaky plumbing.

Regarding damage that already occurred, if the upstairs owner fixed the leaky plumbing promptly once the problem was diagnosed, he is exempt. However, if he tarried with the repair and the damage spread, he is liable (see Emek Hamishpat, Hilchos Shecheinim #27-28; Pischei Choshen, Nezikin 13:5[12-14]).

Q: I want to open a window facing my neighbor’s window; he wants to restrain me on account of privacy rights. Who’s right?

A: One of the neighborly rights is that of privacy. The Sages prohibited opening a window overlooking another person’s courtyard, since this limits the other person’s ability to use his courtyard for personal matters (hezek re’iah). They also prohibited opening a window or door directly across from another’s window or door, even if with consent, to ensure privacy. They even prohibited widening an existing window (C.M. 154:3-6; Pischei Choshen, Nezikin 14:[1]). Nowadays, the practice is not to limit this behavior, for a number of reasons. Some explain that the Sages prohibited the opening only if directly opposite, but not if slightly to the side or higher. Others note that usually there is an entrance hall behind the door, where people generally do not engage in activities requiring privacy (Pischei Choshen, Nezikin 14:2). Additionally, in the times of Chazal, doors and windows generally remained open, unlike nowadays, when doors are usually closed and windows have shades (Emek Hamishpat, Hilchos Shecheinim #10). Even so, one must respect others’ privacy and avoid looking through their windows (Rema 154:3, 7; Sma 154:14).