Bava Kamma 017

נושא: BK

BET MIDRASH VIRTUALI

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If someone spills water in the public domain and someone else is injured thereby he is liable for the damage [sustained]. If someone buries thorns or glass or creates his fence from thorns and the fence falls into he public domain and others were injured thereby he is liable for the damage [sustained].

1:
We have already established that people have the right to use the public domain (lane, street, road, market etc) without having to watch their step all the time. It therefore follows that anyone who creates some kind of hazard in the public domain will have to bear the consequences of his action. While the first clause of our mishnah is quite straightforward the custom of not clearly indicating the subject of verbs might lead to some misunderstanding. So here is the first clause of our present mishnah with different wording:

If David spills water in the street and Sara slips on it and falls David must compensate Sara for all injuries that she may have sustained.

2:
The second clause of our mishnah is slightly different. Firstly, people would create fences from thorns and even glass – more of this later. If the thorn hedge becomes obsolete it is possible that the owner will toss it out into the public domain. But even if the owner buries the thorns or the pieces of glass and makes sure that they are well and truly covered should they come to the surface again they are a hazard – and those who create a hazard in the public domain are liable for all injuries sustained.

3:
In the Gemara [BK 30a] one sage, Rav, seeks to limit the liability of the person who created the hazard. He claims that the damage caused by the water (in the first clause) should be limited to damaged caused to clothes: surely, he argues, any other damage would have been caused by the ground (coming into sudden and violent contact with a body) – and the ground is not a personality under law! But his rather specious argument is rejected: it is the defendant's water that turned the ground into clay and is thus the immediate cause of the accident.

4:
However, the discussion in the Gemara does differentiate between the seasons:

All those who open their gutters or sweep out the dust of their cellars [into the public domain] are, in the summer, acting wrongly, but lawfully in winter [when the rains will, in any case, wash the débris away].

However, in his great code, Mishnah Torah [Damages 13:12] Rambam seems to accept the distinction made by Rav with a twist: in our scenario David would be liable for all damages sustained by Sara except for damage to her clothing.

Established halakhah follows the opinion of Rambam.

5:
It is easier to understand the second clause of our mishnah if we move ourselves outside town. Over the years I have had occasion to explain that outside the towns and villages were allotments in which people would grow whatever the wanted to grow – wheat, vegetables, fruit and so forth. Each person had his own allotment and, of course, there were lanes of access between the various allotments. People would mark the edge of their allotment by erecting a fence. Sometimes the fence would be nothing more than a thorn hedge but sometimes it would be built of stones – and some zealous people would even embed glass into the stone fence.

6:
We can now better understand our mishnah. The very narrow lanes that separated the various allotments belonged, of course, to the public domain. Therefore, anybody dumping thorns or glass shards into the lane was creating a hazard! The Gemara [BK 30a] clarifies:

Rabbi Yoḥanan says: This ruling [of the Mishnah] refers only to a case where the thorns were projecting into the public domain. For if they were confined within the private domain [of the allotment holder] there would be no liability.

The Gemara then explains that even if the thorns or pieces of glass do constitute a hazard there can be no liability as long as they are within the private domain "because it is not the habit of people to rub themselves against walls."

7:
For the sake of clarification (and education) the Gemara [BK30a] teaches:

The pious men of former generations used to hide their thorns and broken glass in the middle of their allotments at a depth of three handbreadths below the surface so that [even] the plough might not be hindered by them. Rav Sheshet used to throw them into a fire. Rava would throw them into the River Tigris.

Ken Kraft writes:

I was wondering what the situation is if the damage is caused by a slave/wife/child or someone who was blind or otherwise mentally handicapped (really any individual who might not have had their own independent legal status at the time the Mishna was compiled)? In the first category (slave/wife/child) I am guessing the "master" would be responsible for the damages but wondering if it might be more complicated in the case of damages caused by someone who was blind or mentally handicapped.

I respond:

We shall go into this matter in greater detail in one of the later chapters of this tractate. In the mean time let us say the following:

In the case of someone who does not have his or her own independent legal status (such as a slave or a spouse) the onus of responsibility reverts to the person who has tutelary rights over the malfeasant;
Deaf-mutes, someone suffering from severe mental retardation and children (under the age of 12 for girls and 13 for boys) are not legal personalities at all.
Someone who is blind, deaf, lame or otherwise incapacitated are full legal personalities.

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