Question

Last week in gym class we were playing a game in which we had to get to the ball first. A friend and I were both running towards the ball. As were running, I pushed him and his phone fell out of his pocket and broke. Do I need to pay? And if I need to pay, what do I need to pay for? I said I don’t have to pay because he put his phone in a dangerous situation. It was in a shallow pocket in gym and he was running, so he should accept the damages if his phone fell. I had my phone in my pocket but when he pushed me back it didn’t fall out. I also don’t think it is entirely my fault as it was both our actions mixed together that made the phone fall. If I had pushed him when he was standing still, or if his phone was in a secure pocket (like mine was when he pushed me back and it didn’t fall) then my push wouldn’t have broken his phone. He says I need to pay because since there wasn’t supposed to be any pushing he was not prepared for it and shouldn’t need to be prepared, and I should take responsibility that if I push him I am responsible for whatever consequences there will be.

Answer

There are two issues that require consideration. The first issue is if there are exceptions to the rules of damages when damages result from playful activity. The second is if an exception to the rules of damages is made if the property that was damaged was in an unusual position.

The answer to the first question is yes. There are exceptions to the rules of damages when the individuals are involved in playful activity.

The source for this exception is a Gemara (Succos 45A) that states, according to Rashi and some other Rishonim, that on Hoshana Rabba adults would grab the lulavim and esrogim of children and eat the snatched esrogim.  Even though one may not steal, their behavior was permitted because it was customary behavior due to the joyous Yom Tov atmosphere.

Tosafos derives from here that one is not liable if he tore another person’s clothing when they engaged in playful fighting as part of a chasuna celebration since this is customary behavior in those circumstances. There are other Rishonim (e.g. Tosafos in his second explanation) who understand the Gemara differently and therefore, there are Rishonim (e.g. the Rosh in Klal 101, response 5) who disagree with the ruling of Tosafos. However, the Rama (378, 9) rules leniently.

There are two approaches to understand the basis for this leniency. Some commentaries explain that it is a takono of the rabbonim and we say that hefkeir beis din hefkeir. Others (Knesses Hagedolo Orach Chaim (695, 3),  Pri Megadim (695, 7)) say that Chazal understand that under these circumstances, people are mocheil each other.

In the situation that we are discussing, this leniency does not apply since it only applies to customary activities which generally don’t result in damage, but on this occasion the action did result in damage. Since pushing is not allowed when pursuing a ball, one cannot consider your activity as being customary and therefore it is not included in this leniency. Therefore, we have to examine your question in the context of the general laws of damages.

The issue is whether one is liable for damages if it is not usual for the damaged object to be in the place it was situated at the time it was damaged.

The Gemara (Bava Kama 62A) discusses a case of someone who gave a lady a purse and told her to watch it carefully since there were silver coins inside. She, however, did not take heed and she actually discarded the purse. The Gemara rules that if the owner proves that actually there were gold coins inside, she has to pay the full value of the gold coins. Even though he told her that there were silver coins inside, which are not as valuable as gold coins, nevertheless, she must pay the full value of the actual damages since she damaged them and was a mazik. This stands in contrast to the law in case she had just been careless and did not watch the purse properly. In that case her status is not a mazik but a shomer, in which case we rule that she would only have to pay the value of silver coins because that is all she agreed to watch.

The Gemara continues with a case of a person who kicked someone’s box into the river. Although it was the type of box which people generally used to store money, the owner of the box said that precious stones were in the box and he claimed their full value from the one who kicked the box. According to some explanations (Tosafos), in this case the Gemara says that if it is very unusual for people to keep precious stones in this type of box, the one who damaged it is exonerated.  The Rama (388, 1) follows this explanation in his notes on the Shulchan Aruch but the Shulchan Aruch himself does not, since many Rishonim (Ramban, Rashba) understand this section of the Gemara differently. According to their interpretation there is no leniency even if it is very unusual to store precious stones in the box. The reason is that when a person damages he is liable even for unusual consequences.

It should be noted further that the Maharshal and Shach rule that the opinion of the Shulchan Aruch is authoritative and we do not follow the opinion of the Rama on this issue.

Furthermore, it does not seem that it is very unusual for people to keep their phones in their pants pocket when engaging in sports activity. Therefore, it is difficult to even apply the Rama’s opinion.

In conclusion: The consensus opinion is that you must pay the cost to repair the phone.

 

 

 

 

 

 

 

 

 

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