Question:

Recently while making a right turn I accidentally hit a parked car, damaging the car and damaging my own car. The car was parked illegally since it was parked very close to the intersection. There should not have been a car there and therefore, I had not expected a car to be parked there. By the time I noticed the car, it was too late. Am I responsible to pay for his damage or is he responsible to pay for my damage?

Answer:

Concerning the damage caused to your car there is no issue since the status of a parked car, even if it is parked illegally, is that of a bor-a pit. The reason is because the Gemoro (Bava Kamo 2A) classifies any damage done by an object in  a stationary position as bor and the halocho is that bor is not liable for damages done to an object, as the Gemoro learns form the pasuk, Chamor velo keilim-the owner of a bor is liable for damages done to animals but not to objects. Therefore, in any case the owner of the parked car is not liable for the damages suffered by your car-an object. The only issue is whether you are liable to pay for the damages to his car.

A similar issue is discussed by the Gemara (Bava Kamo 27B). There the Gemara discusses one who placed a barrel or jug in a public thoroughfare and a pedestrian tripped over the jug, damaging the jug. The Mishna (ibid 27A) rules that the pedestrian is not liable for the damage. The Gemara questions why he isn’t liable since he should have noticed the barrel. Even though there is no right to leave a barrel in a public thoroughfare, the Gemara states that the pedestrian would be liable if he should have noticed the barrel. The only reason the pedestrian is not liable in the case of the Mishna is that the Gemara rules that people are not expected to look at what is on the ground when they walk, since that is not the normal way that people walk in public thoroughfares.

However, the above is correct when the one who damaged was a pedestrian. However, owever, when one drives a motor vehicle, one cannot say that it isn’t normal for people to look at what is in front of them, since one must constantly scan the road when driving. Therefore, the question if you are liable depends on the exact situation. If the parked car was parked in a place where one who drives in a normal manner i.e. drives within the speed limit, looks carefully etc. would not notice the parked car before it is too late, then you are not liable. However, if you should have noticed the car then you are liable for the damages since you are considered odom hamazik.

Several commentaries like Rav Moshe Feinstein (Dibbros Moshe: Bava Kama 19, 3) and the Telzer Rosh Yeshevo, Rav Eliezer Gordon (Teshuvas Rav Eliezer 2, 2) deduce from this Gemara that even the Rambam (Choveil Umazik 6, 1) who rules that one is only liable if he had intention to damage even something whose presence was without permission, agrees that if the damage was a result of carelessness it is equivalent to intentional damage. Therefore, the above halachah is correct according to all the poskim including the Shulchan Aruch (Choshen Mishpat 378, 6) who rules like the Rambam.

 

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