Question
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 on 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.
Answer
We learned in the previous article that even if someone caused an accident because he violated traffic rules, nevertheless, if he stopped before the accident occurred he is not liable for the damages he caused to the car which crashed into him. The reason is that many Poskim maintain that the damages which he caused by the manner in which he positioned his stationary car are classified as bor and the Torah freed the owner of a bor of liability for damages caused to objects.
Even though the following did not happen in your case, we want to discuss whether the stationary car is classified as a bor even in case the car only stopped immediately prior to the crash rendering the crash inevitable. This could have happened in your case had you been close to the other car or driving at a speed that would have made it impossible for you to avoid a collision.
This issue is a factor in many questions concerning traffic accidents. Examples where this is an issue are if a car suddenly stops and the car trailing behind bumps into him because he could not stop in time, or if a person opens a car door right before a passing car which is then damaged by the protruding door.
We should recall from the previous article that there are Poskim who rule that any time one damages due to a temporary stop it is classified as odom hamazik. However, where the damage is unavoidable many more poskim agree to classify the one who stopped as odom hamazik.
The basis for this is a Gemara (BK 56B) that rules that one is liable if he causes an animal to position itself on another person’s produce and consequently the animal eats the produce. The Rishonim dispute how to classify this act of damage. Tosafos understands that the result of the fact that the human’s action made the animal’s damage inevitable is only that the one who caused the damage becomes liable for the animal’s action even though he is not the owner of the animal that actually damaged. However, the act of damage remains the animal’s and the damage is called shein just like if the animal had eaten the crop without human interference.
On the other hand, the Rashba disagrees and rules that the classification of the entire action is changed. Whereas if an animal eats on his own it is classified as an act of shein, here where the human created a situation where the animal’s eating was inevitable we view the action of the human as being the act of damage and his action is classified as odom. The Rashba writes that we view his action as if he fed the animal. Even though he didn’t actually feed the animal, since he set up the animal in a manner that the animal will almost certainly eat, we view the human as the one who damaged. The Rambam (Nizkei Momon 4, 3), Tur and Shulchan Aruch (CM 394, 3) all explicitly follow the approach of the Rashba and therefore, it is the authoritative approach.
We should note that this is not just a theoretical dispute since there are many practical differences between the two opinions. For example, whereas, one is not liable for shein if the damage took place in the public domain (reshus horabim), if it is classified as odom, one is liable even if the damage took place in the public domain.
We can deduce that these opinions likewise maintain that if one stops his car in a manner that will certainly cause damage to an oncoming car, we ascribe the act of damage to the person who set up the damage and it would be classified as odom and not bor. This is true even in the classic case of bor. If one digs a pit in a manner that an animal will unavoidably fall into the bor immediately, we view his action as if he threw the victim into the bor.
Moreover, there is a Rishon who explicitly rules that when a human sets up an inevitable damage that is caused by a stationary passive object it is classified as odom and not bor. The Ri’az (BK 2, 7, 5) writes about the case discussed in the Gemara (BK 27A) where one person hurled another person’s breakable object down from a roof to the ground in a place which was covered by a mat that would have prevented all damage, but a third person moved the mat away when the object was already in the air causing the object to break. The Rishonim disagree whether beis din can force the one who removed the mat to pay for the damage because the relation between his action and the damage is only causative.
The Ri’az adds that in case the third person did not remove the mat but placed a rock on the mat then he is certainly liable. He does not explain the reason for his ruling. However, since what was damaged was an object it is obvious that he did not mean to classify the damages as bor since otherwise the one who placed the stone would not be liable since bor is not liable for objects. Thus we see a case where the damages done by a stationary object are not classified as bor. Rather, the Ri’az must maintain that the man’s actions are considered to be the act of damage and it is classified as odom hamazik.
The Steipler (Chadoshim BK 24) also writes that if one placed a pole under an object that was headed for the ground he is liable because it is his action that ensured that the damage would take place. Following this view in the case of the car that stopped in a manner that made the damage inevitable, the Ri’az and Steipler would classify the damages as odom.
(See Hayoshor Vehatov 9, question 15 for a discussion if Ri’az means that the damages are odom or garmi since either would explain the ruling of the Ri’az. The Acharonim have this same dispute about the previously cited Rashba. The Chazon Ish (BK 1, 7) among others, says it is odom similar to one who shoots arrows but others including the Avnei Nezer (OC 120, 5) understand that the Rambam, who agrees with the Rashba, views it as garmi. We should note that the words of the Rashba support the interpretation that it is odom. We should add that in most situations the difference will not be halachically significant.)
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The second issue that remained from last week was the liability of the one who was driving legally and damaged the approaching car because he panicked when he suddenly became aware of the approaching car. Since he was driving legally and the other car was not, it is comparable to the Gemara (BK 48A) that discusses one who placed his object in someone else’s property without permission. The analogy is based on the rules governing public streets. The rules limit use of public streets to those who obey the rules. Therefore, all those who use the street in the proper manner are the joint owners of the street. However, those who do not are essentially intruders.
The Gemara rules that the owner of the property is not liable for damaging an object that was placed there without his permission if he did not notice the object. Many Rishonim including Rashi and Tosafos (BK 32B) understand the Gemara literally, that the determinant is noticing the object. The Rambam (Chovel Umazik 1, 16) however, understands that the Gemoro limits the owner’s liability to intentional damage. Both opinions are cited, in a sense, by the Shulchan Aruch (378, 6).
The Rambam certainly would rule that you are not liable since the damage was definitely unintentional. The way the Shulchan Aruch understands the other opinion is controversial. According to many, including the Chazon Ish (BK 4, 3), and Aruch Hashulchan (378, 16) one is liable only if his actions are considered negligence. Since many people in this situation would react as you did one cannot classify your actions as negligence. Therefore, even the Shulchan Aruch, according to these Acharonim, would free you from liability.
In conclusion: In this part we discussed two issues and determined that when one stops his car in a manner that his car will certainly damage another car he is liable since his act of damage is classified as odom and not bor. However in your case the other car was stopped so it is certainly bor and he is not liable for the damage to your car. Second, in your case, even though you damaged the other car, you are not liable because you did not act negligently. Therefore, you are not liable for the damages to his car.
