Bava Kamma 022

1:
Our mishnah is clear and really needs no explanation. Someone working in their own private domain must nevertheless take precautions to ensure that no one else, even someone passing in the public domain or someone in another private domain, will be injured by the results of his work.

2:
Our mishnah gives the example of someone chopping wood: splinters might fly off and hurt someone else or the head of the axe might fly off and cause injury. But the same ruling holds true of anything that one might do that could possibly cause injury to others.

3:
The claim that the work was being done in one's private domain will not suffice to prevent a claim for damages. Furthermore, work that might possibly cause danger to others should never be done in the public domain if the work is of a private nature.

Short and simple!

In BK 18 I wrote:

As Sam leads Dobbin through the public domain Dobbin leaves behind a token of his passing. David comes along, sees it and … since it is hefker he can just scoop it up and use it to fertilize the ground of his allotment. In order to indicate that he has claimed ownership of the dung David delicately moves it… Meanwhile along comes Sara. Sara … steps into Dobbin's mess, slips, falls and breaks her leg. Sara can sue David because he has laid claim to ownership of the dung which now constitutes a hazard in the public domain.

Ken Kraft writes:

You state that Sara can sue David (who has assumed ownership of the dung that had become hefker). I'm assuming that Sam remains equally liable since it was his animal that created the hazard in the first place. Can Sara claim against both of them or must she choose one or the other? If she can claim against both or if she only chooses to claim against David can David, in either situation, claim against Sam (or does David's act in assuming ownership mean that he cannot make any claim against Sam)?

I respond:

I am not a lawyer (even in halakhic cases) so we must be careful to note that my response is guarded.

Ken assumes that "Sam remains equally liable since it was his animal that created the hazard in the first place." I am not at all certain that his assumption is correct. Dobbin did "what comes naturally" to his kind in the public domain which is free for all to use. I do not think that Sam would be required to take any precautions against the behaviour of his animal. Therefore, it seems to me that neither Sara nor David would have any justifiable claim on Sam. Surely, if David thought that Sam had done anything untoward he would not have been eager to assume ownership of the dung – as Ken himself points out.

Still regarding BK 18, Alan Marcus writes:

In this the discussion portion of this shiur, you indicate that intent has nothing to do with the question of whether one is or is not liable for his or her torts. Most modern tort law recognizes the concept of intent in torts such as trespass, battery, assault, etc. (i.e. the defendant must have acted knowingly or under circumstances where the fact finder could find that he or she performed the act with substantial certainty of carrying out the intended consequences). If halacha does not recognize or consider one's intent, then would it be fair to say that it imposes strict liability for all torts?

I respond:

Alan is taking my comment out of its context. I mentioned the consideration of purposeful intent with regards to dinei nefashot where a man's life is in jeopardy and if found guilty he could forfeit his life. Therefore it is essential to establish that when he performed the act for which he is on trial not only did he know what he was doing but also intended to do it even knowing that he could forfeit his life for doing so.

Torts belong to dinei mamonot, where the malfeasant will have to fork out money if he is found liable. I do not recall saying anywhere in our discussions that "halacha does not recognize or consider one's intent" in matters of dinei mamonot. Assuming that the malfeasant is competent under the law he will be held responsible for any and all damage that he causes, regardless of whether there was or was not malicious intent. (Competence refers to someone who is non compos mentis either permanently or temporarily, or to someone who is not in possession of all their senses – sight, hearing etc.)

I must apologise for the hiatus since the last shiur. The hiatus was caused by an unplanned and unexpected hospitalisation. I hope that we shall get back to our regular rhythm within a couple of weeks. It is with great pleasure that I wish everybody a very happy Chanukah!