Driving a car in America carries with it tremendous responsibility. Besides the Torah obligation not to hurt others, driving also involves several issues of liability according to American civil law. Below we will discuss some of the basic issues of Halachic liability when driving a car. Interestingly enough, secular traffic law plays an important role in determining the Halachah. There are several reasons for this.
Firstly, motorists are required by law to maintain a minimum amount of insurance in order to drive. As such, even though one would not normally be allowed to sue another Jew in secular court, it may be permissible to do so after a traffic accident because the insurance company, which is not Jewish and not bound by Halachah, will eventually have to pay for the damage.
In addition, under American Law, driving is a privilege not a right. Each state allows a driver to use public roads on the condition that he agrees to abide by all applicable traffic laws. Thus, it may be argued that by driving on public roads, one submits himself to these laws, and agrees to pay for damages he inflicts according to the law of the land.
Furthermore the halachos of damages inflicted through car accidents are dependent on whether the mazik – damager and nizak – damaged party were acting “birshus” or “not birshus” (permitted and predictable manner or in a unpredictable manner). Traffic laws play an importnat role in determining what is considered birshus.
The following article has been written by Mr. Matisyahu Wolfberg Esq., an attorney with extensive experience in New York and New Jersey Criminal and Traffic law, and Dayan Harav Yonassan Hool of Bais Din Nesivos Chaim in Yerushalayim. Dayan Hool is a participating member of the Bais HaVaad L’Inyonei Mishpat’s division in Yerushalayim. He remains on call to assist with Shailos presented through our Choshen Mishpat consultation line and other halachic financial services the organization provides. For further discussion regarding this article Mr. Wolfberg may be reached at (800)768-323.
The theory of negligence
The most common basis to sue a driver or vehicle owner who caused an accident is under the theory of negligence. Under the theory of negligence, the driver causing the accident can be held liable if he injured another person or damaged another vehicle or property by driving unsafely.
Halachah also holds one accountable for negligent damages. The Mishnah Bava Kama 26a teaches:
Adam muad l’olam, bein shogeg bein meizid, bein er bein yashen.
“A person has liability for all of his actions, both accidental, and intentional” Consequently, one is liable for damage caused through unsafe driving and Halachah clearly deals with damages caused by users of the public thoroughfare as will be discussed below.
Very often, one cannot prove that the at fault driver acted negligently. It becomes much easier to do so when it can be shown that the at-fault driver violated a traffic law while committing the act, which contributed to the damages. This concept is known as negligence-per-se.
The doctrine of negligence-per-se provides that the damaged party can show the at-fault driver’s liability by establishing the following:
1) The at-fault driver violated a law resulting in injury of damage
2) The law was intended to prevent the type of injury that occurred
3) The damaged party was in the class of persons, intended to be protected by the law.
The theory behind the doctrine of negligence-per-se, is that the state has passed laws to protect the safety of the public. By violating the law in question, fault is established as a matter of law, and there is no need to prove negligence by showing additional facts.
Accidents caused by the violation of traffic laws are the most common instance of negligence-per-se. For example, from a legal standpoint it is easy to prove the liability of one who rear-ends another vehicle while following the other vehicle too closely. Similarly, one will likely be liable for damages caused while speeding.
The Halachah incorporates a concept similar to negligence-per-se as well. One who causes damage in the public thoroughfare while acting in an unanticipated manner will be liable, provided that the damaged party was not behaving in an unusual or unanticipated manner. See Shulchan Aruch C.M. 378-8 which rules that one who damages his fellow while running in the public domain will be liable if he damaged someone who was not running. Running in this instance is seen as irresponsible and reckless. In Halachic terms, one who runs through a public street acts Shelo birshus. Consequently, the one who was not running bears no liability. While the Halachos of the Shulchan Aruch operate independently of secular law, applicable traffic laws define what constitutes an act that is Birshus and what is Shelo birshus on the roads. In essence the traffic laws dictate what is considered normal behavior on the roads.
When both drivers are at fault
*What happens when both drivers are at fault? Under Common Law, the English legal system on which American law is based, a damaged party who was held even partially responsible for the accident, does not recover any damages. For example, if Reuven were driving down the street at night with his headlights off and Shimon, who was speeding, made an unsafe turn in front of Reuven, causing the two vehicles to collide, then neither party would recover damages. Both of them were driving in an unsafe manner which contributed to the occurrence of the accident. The above scenario is a bit extreme and most states in America have modified that strict usage of this principle and adopted in its place a damages analysis known as “comparative negligence.” Under the new approach, when both parties are at fault the court reduces the amount of damages that may be recovered, based upon the degree to which the damaged party’s own negligence contributed to his being damaged. So, in the above example if Reuven were found to be 40% at fault, and his damages were $1,000,000, then he would only recover $600,000.
Comparative Negligence in Halacha
According to many opinions, the issue in Halachah is not so much “comparative negligence” but “comparative damages.” If both parties were acting in an illegal manner then both are responsible for damage done to each other. If Reuven caused $100,000 of damage and Shimon caused $40,000, then Reuven pays the difference of $60,000 to Shimon. However, this opinion is not universally accepted.
According to Rashi, one who damages actively must pay whereas one who damages passively need not pay. So, if both Reuven and Shimon were driving at night with their headlights off, and Reuven crashes into Shimon, Reuven will pay the damages to Shimon’s car, but Shimon will not pay for damage done to Reuven’s car. According to this opinion, if both crashed into each other, then the one who damaged more does pay the difference in damages.
The Rema”h (quoted in the Tur 378) cites an opinion similar to the original principle of comparative negligence. He agrees that in general the active damager pays and not the passive one, but he rules that if both were active damagers – for example, they crashed head on into each other while both were doing something illegal or unusual – then neither pay for any damages done.
The Rambam (Chovel Umazik 6:3,9 as explained by the Maggid Mishnah), takes a unique position on the topic. He rules that if both drivers were at fault then no one need pay damages unless the damages were done deliberately. This would be similar to the above-mentioned secular law. (The Gr”a (Shulchan Aruch 378:19) suggests that the Rambam might agree to the rules of Rashi with regard to bodily damage, and only applies the rule of intent as the determining factor with regard to damage done to property.)
There is some debate as to what the Shulchan Aruch rules regarding to this machlokes. (See for example Gr”a 378:19, Aruch Hashulchan 378:16)
Liability when driving the company car
What happens when one causes an accident while driving a company car, or driving his private vehicle during the course of his duties for an employer? Is the employer liable? In general, under American law, the employer will be held liable for the damages caused by their at-fault employee acting in the course and scope of his company duties. Similarly, one who loans his car out, may also be liable for damages caused by the borrower. Depending on the circumstances of the accident committed by the employee or borrower of the car, the liability of the employer or owner of the vehicle might be limited by the laws of the jurisdiction. If the employer or owner of the vehicle gave his car to someone whom he knew to be a poor driver, then his liability might be unlimited.
In Halachah, an employer or car owner cannot be held responsible for damage done by an employee or another party who is using his car. Only the actual mazik is liable, not the car-owner.
What happens when two people or parties caused the damage in question?
For example, let’s say the accident was caused by both the driver who was speeding, and his passenger who distracted the driver by raising the volume on the radio to an uncomfortable level and fiddled around with various dashboard controls. In this case, secular law allows the damaged party to recover all the damages from any one of the two individuals, regardless of their individual share of the liability. That means to say, that if the driver of the vehicle who caused the accident is penniless, while his passenger, who contributed to the accident is wealthy, the damaged party may recover all the money damages from the wealthier party. Consider however, that the wealthy passenger who got stuck with the bill may pursue a case against his co-damager to recover a fair portion of the money damages he had to pay to the damaged party. This concept is known as “joint and several liability.”
In Halachah if two or more people cause damage together, there are instances in which only one party need pay, and other instances in which both parties must pay. If one is unable or unavailable to pay, there are certain circumstances in which the entire amount can be recouped from the remaining party.
The Shulchan Aruch (C.M. 410:32) rules that if a Shor Tam (first-time damaging ox) pushes another ox into a pit that was dug by a third party, the third party pays three quarters of the damages. Although in principle each of the two contributors to the damage pays half of the damage done, since the owner of a Shor Tam is only liable for half of the total damages, he need pay only a half of his half, (i.e. a quarter of the total damages). In this case, the pit-digger picks up the tab for the part that the ox-owner is exempt from.
The Shulchan Aruch brings two opinions as to whether this rule also extends to a case where two people are both liable to pay, but one has no money or is unavailable. One opinion requires the capable party to pay the remainder and the other opinion does not. The later authorities discuss whether the opinion that holds the financially capable party liable for the whole amount only does so in a case where each damager exerted enough force to independently cause the entire damage, or even in a case where each one applied only enough force to do half the damage as well.
However, one who merely creates a circumstance where damage can occur, rather than actively damaging, is often not liable under Halachah. Merely turning the radio up and fiddling with dashboard controls not related to the actual car’s movement, will not make the passenger liable for damages done by the driver as a result.
As can be seen from the above, there are numerous similarities and divergences between Halachah and secular law with regard to damages. The information in this article is not intended to be used as legal or Halachic counsel. In all cases of application a qualified lawyer should be consulted to obtain legal clarity and where applicable a practicing Dayan should be consulted to obtain the Halachic position. Note, each state has different laws, but there are general principles of law that apply in every state. To be sure of the applicable laws in a given state, one should consult with a duly licensed attorney.
*It bears mentioning that, according to Halachah, if one were acting in a manner that was completely reckless, to the point of being a danger to life, he takes on the status of being a Rodef. As a Rodef he is considered chayav misa for the duration of time that his actions present a direct threat to the lives of others. In this case the principle of kam leh b’drabbah mineih applies. If the matter were being tried in a Halachic court he would essentially not be liable for damages incurred during this time because he faced the possibility of capital punishment. However, there are opinions that kam lei b’drabbah mineih does not apply in this situation because when one gets behind the wheel on today’s public roads he accepts upon himself all the rules of the road which would include the liabilities applicable under secular law.