I was recently driving down a one-way street when all of a sudden I was honked by a car which was driving towards me, since he was going the wrong way for the one-way street. Since I was caught totally off guard and my wife panicked, rather than slam on the brakes I, for an instant, stepped on the accelerator. I then caught myself and braked, but I still hit the other car. We both only suffered damages to the body of our cars as a result. My question is who is liable for the damages to each other’s car? I should note that when he saw me he stopped, so at the time of the collision he was standing still and I banged into him.
You are asking two questions: One is whether you are liable for the damages to his car, and the second is if he is liable for the damages to your car.
Let us first consider the damages to your car. Your last point is very important since by being at a standstill at the time of the collision it seems that the damages done by his car fall into the category of damages known as bor. The first Mishna in Bava Kama states that the identifying feature of damages that fall into the category of bor is that the damage was brought about by something (a hole in the ground or an object) that was stationary at the time that the damage occurred. If we do view this as bor then he is not liable because your car is an object and a person whose bor damaged is liable only for damage to the body of the victim (a human or an animal) and not for damages to objects (even the clothes of the victim). He is also not liable if the human victim dies.
The reason to question whether to classify this as bor is that we do find damages that were done in a stationary manner where a person was involved, that are classified as odom and not bor. The Chazon Ish (BK 1, 1) writes that these are not totally odom but a cross of odom and bor, but since the more salient feature is odom the governing rules are the rules of odom. If this is considered odom then he would be liable since odom is liable for damages to objects. Thus, it is crucial to determine whether the stationary car is classified a bor or odom.
There are two cases that are discussed in the Gemara where a person damaged while being stationary and they seem to have contradictory rulings. One case is where a person was walking while carrying a beam and the person following behind carried a jug. The Gemoro rules (Bava Kama 32A) that if the beam carrier stopped (in a specific manner) and thereby caused damages to the jug that banged into his beam, the beam carrier is liable. This means that the Gemoro classifies the damages done by the stationary beam that was being carried by a person as odom since otherwise he would not be liable for the jug as it is an object.
The other case is where a person tripped and, when he remained lying on the ground, others tripped over him. The understanding of many Rishonim – and that is the ruling of the Shulchan Aruch (413, 1) – is that the Gemoro’s conclusion is that the prostrate person is not liable for damages done to objects. This implies that the Gemoro classifies the damages caused by a stationary person as bor. Therefore, we have to determine to which of these situations we should compare the car.
The Nimukei Yosef (BK 15B), as understood by the Minchas Shlomoh (BK 31A), explains that the difference between these two cases is that in the case of the beam it was only because the carrier was alive that the damage occurred. If he had not been alive the beam would not have been supported and this damage would not have occurred. However, in the case of the person who was lying on the ground even if he had not been alive the same damage would have taken place. Therefore, we classify his body as a bor.
We should note that Tosafos Rabbeinu Peretz (BK 31B) writes explicitly that the determinant if the damages are classified as odom or bor is whether this damage would have occurred even if the person who caused the damage had been dead.
Based on this rule, it would seem that in most cases the car is a bor. It is true that in order to remain stationary it was necessary for the driver to be alive and keep his foot on the brake. However, if he had not been alive the damages would have occurred anyway and perhaps would have been even greater since the car would have advanced further. Therefore, the fact that the driver was alive was not a cause for the damages. It is only if the car was on a slope and the car would have otherwise rolled backwards that we can say that the fact that the driver was alive caused the damage and the damages done by the stationary car would then be odom.
We should note that there are other opinions. Rav Zalman Nechemia Goldberg (Hayoshor Vehatov vol 15 Page 4) explains that the reason the beam is considered odom is because the beam was controlled by the carrier. As long as it was controlled by the carrier it is considered as an extension of the carrier and any damages that are done by the extension are classified as odom. He writes explicitly about your question that the driver is liable as odom. He does not explain why the prostrate person is classified as a bor since it would seem that since it is certainly the person’s body that damaged, according to his interpretation it should be odom. Perhaps when he was prostrate he did not exercise any control over his body whereas one who drives a car when he remains stationary, nevertheless, he is in control of the car. He merely desires that the car remain stationary at this instant.
Support for the latter position can be derived from a Responsa of the Rosh (cited by the Tur and Shulchan Aruch in siman 378). The Rosh was asked about someone who rode a horse and the horse damaged someone else’s mule. He ruled that the one who rode the horse is liable as odom. The Chazon Ish (BK 4, 8) remains with a question why the rider is called odom since he only rode on the horse but it was the horse that damaged.
The Ulam Hamishpot (siman 378) addresses the Chazon Ish’s question and explains that since the man was controlling the horse, the horse was merely like a stick in the rider’s hand. This is the same approach as Rav Zalman Nechemia that the determining factor is control and since the fact that the car was temporarily stationary was an expression of the driver’s control. Even when the car is stationary the car is odom hamazik.
We should note that the Chazon Ish explicitly agrees that if the damages are certain then control suffices to classify the damage as odom. He proves this from the Rashbo’s explanation of the Gemara (BK 56B) that rules that one who causes an animal to position itself atop someone’s grain is liable. The Rashbo explains that the one who caused the damage is odom. The Chazon Ish says that in this case control suffices to classify the damages as odom since the damages were certain. (We will discuss this further in the next part when we discuss the halacha if the other car stopped short, and also your second question.)
We should note that everyone agrees that if someone parks a car and then the car causes damage (e.g. it was parked illegally right next to an intersection and someone rounded the corner and hit it because he couldn’t see it) that the car is a bor because when the car is parked the driver is no longer in control.
In conclusion: In your case where, had you stopped, the damage would not have occurred, many consider the other car as a bor and therefore, the driver is not liable for the damages to your car. We will Be’ezras Hashem discuss your second question, and also the halacha when a driver stops short and thereby causes an accident, in the upcoming article.