Question
I was riding on a bus and didn’t notice that a man had his feet sticking out into the aisle. I tripped over his feet and when I fell I broke two teeth. Is the man whose feet were in the aisle liable to pay for the dental work to repair the damage?
Answer
There are a number of issues involved.The first issue is whether one whose feet protrude into the aisle is considered a mazik, or is it your responsibility to notice his protruding feet. This issue can be resolved based on the Gemoro (Bava Kama 27A-B). The Gemara discusses a jug which was placed in a public thoroughfare and the Mishna rules that one who trips over the jug is not liable for breaking the jug, and if he gets hurt the owner of the jug is liable. The Gemara asks why we don’t fault the pedestrian for not having noticed the jug and the Gemara answers that it is not normal for people to look at the ground. Therefore, the pedestrian is blameless and liability rests with the owner of the jug. Therefore, in your case the person whose feet protruded is the guilty party.
However, there remains a second, very important issue. In the case of the Gemara, the owner of the jug is considered the owner of a bor – the bor being his jug. He is liable just like every other owner of a bor is liable for his bor in a public thoroughfare.
In your situation, if the man’s feet constitute a bor the man is not liable. The reason is that there is a dispute among the Rishonim if one trips over a bor but fell, not into the the bor, but onto public property. Many Rishonim maintain, and this is the ruling of the Shulchan Aruch (411, 1), that the owner of the bor is not liable since the damage did not take place in the bor. In your case that would absolve the man, because the damage you suffered took place when you hit the floor of the bus.
However, there is a difference between your case and the case of the Gemara, because in the Gemara’s case the damage was caused by an object, whereas in your case it was caused by someone’s feet which are part of his body. Therefore, perhaps he is considered an odom hamazik – a human being who damaged. In this case the fact that the damage was incurred when you hit the floor of the bus is immaterial, just like the Gemara (Bava Kama 53B) rules that when a person pushes someone into a bor, the person who pushed is responsible. The reason to think that this should not be classified as odom hamazik is that the man whose feet were on the ground caused damage in a passive manner, which is a sign of damages (See Mishna Bava Kama 2A) which are classified as bor.
The Gemara (Bava Kama 31A-B) discusses a similar case where one person fell and then another person tripped over him since the first one didn’t get up even though he was able to do so. The conclusion of the Gemara is that we consider the fallen man a bor. However, the reason for ruling that he is a bor and not odom hamazik is that we consider the one who fell as not having been negligent in falling, even though he was negligent in not getting up. Since his fall did not result from his negligence, he is not considered to be odom hamazik. It is clear from the Gemara’s discussion that this is a critical point, because the Gemara states that, according to the opinions that hold that the one who fell was negligent in falling, the damage he brought about is classified as odom hamazik.
The reason why it is so critical if his fall was the result of negligence is explained by Rav Steinman zatsal (Ayeles Hashachar). The Mishna (Bava Kama 2A) says that a characteristic of odom hamazik is that the damage is done in an active manner. Therefore, if the first one was negligent in falling we consider the cause of the damage done by his lying on the ground as having begun when he first fell, which is an action. However, if it is not classified as negligence we cannot consider the fall as part of the cause of the damage for which he is liable.
In your case the person who placed his feet in the aisle acted negligently in doing so. Therefore, he is considered an odom hamazik and even though your teeth broke because of the impact with the floor of the bus, he is responsible for the damage just like one who pushes someone to the ground.
