Question
As I was driving my car out of a parking lot, the barrier came down on my car damaging the cover of the trunk. Is the owner of the lot liable for the damages that I suffered? Am I entitled to a refund for the money I paid the lot for parking my car?
Answer
In order to determine if the owner is liable for the damages, we have to consider the various reasons why he may be liable.
The most obvious reason the owner may be liable is because the barrier belongs to him and thus his property damaged your car. We will consider this possibility in this section.
The laws governing one’s liability for damages that were caused by his property are discussed in the first Mishna in Bava Kama and the subsequent six chapters of Bava Kama. The Mishna states that there are four classes of damages for which one is liable and each of these classes has its own distinct laws. Therefore, we must first determine the class into which this damage falls and then examine if he is liable according to the laws of that class.
Your question is really a modern-day manifestation of a case that is discussed by the Gemara. This is important since it shows the relevance of the Gemara. Even though the exact cases that were discussed by the Gemara may not occur frequently, similar cases do appear even in a modern setting.
The Gemara (BK 6B) cites a Mishna (BM 117B) that rules that if a person’s wall or tree falls and damages something, the owner of the wall is not liable. However, if beis din ordered the wall should be removed by a certain date, then if the wall damaged prior to that date the owner is not liable. But if it damaged subsequently, the owner is liable. Your case is similar since the damages resulted from the premature falling of the barrier. We can determine the answer to your question by carefully studying the Gemara’s ruling concerning the premature fall of a wall.
Even though the Mishna states that the determinant is whether beis din ordered the hazard’s removal, the Beis Yosef (CM 416) cites Rishonim who write that if the fall of the wall was due to improper construction the owner is liable for the damages, even if no warning was issued. The basis for this ruling is Rashi’s explanation (BM 117B) that the reason the owner is not liable prior to beis din’s warning is because he was an oness-blameless. The Beis Yosef further cites the Ritvo and Tosafos who rule that even though beis din normally allots thirty days for compliance with its directives, if the danger is imminent, they will order the hazard’s immediate removal. These rulings of the Beis Yosef are also ruled by the Ramo.
Therefore, what is critical is not beis din’s warning but the state of the property. If the wall or tree showed no signs of instability then the owner is not liable. However, if it was in a precarious state and the owner was aware of this, he is liable for damages.
The Mishna renders a ruling but fails to state the class to which this type of damage belongs. Moreover, it does not even mention the manner in which the tree or wall damaged. Was it in the course of the fall or was it subsequent to the fall when someone tripped over the fallen object?
The Gemara (BK 6B) discusses the class of the damage. The Gemara determines that the Mishna is discussing a situation where the hazard’s owner declared the hazard ownerless before it damaged. Therefore, the damages are similar to those which are classified as bor, a pit that was dug in the public property. In both cases one is liable for damages caused by something that he does not own.
However, since there are significant differences between a person’s tree and a pit that he dug on public property, the Gemoro says that we can only derive the owner’s liability for the damages that result from the fall of his tree from aspects of two separate classes of damages for which one is liable. The two classes are the damages suffered by an animal that fell into a pit that a person dug-called bor (a pit); and the damages suffered by an animal that was gored by his ox-called shor (an ox).
Tosafos and many other Rishonim prove that the Gemara maintains that the Mishna rules that in case the wall or tree was defective the owner is liable not only for the damages that incurred after they fell, but also for the damages that were incurred in the course of the fall. However, if the wall or tree was in proper condition and it fell unexpectedly, the owner is not liable in either of these situations.
Since in this respect there is no difference between a wall and a parking barrier, we can derive from the Gemara that if the barrier was in proper order and the barrier came down unexpectedly on your car, the owner of the lot is not liable for the damages as the owner of the barrier.
If the barrier had previously malfunctioned but the owner neglected to repair it, he cannot claim that the damages were an oness. Since the Rishonim explained that the Mishna is discussing both damages that were suffered after the fall and those that were suffered in the course of the fall, we can derive from this Mishna that if the owner of the tree or wall was negligent, he is liable for both kinds of damages. However, damages suffered during the fall and damages suffered after the fall are not necessarily in the same class of damage.
The damages that you suffered occurred during the course of the barrier’s fall. Therefore, your case is similar to the wall that caused damage in the course of its fall. However, since each class of damages has its own rules, it is imperative to determine the class of damages into which this type of damage falls in order to decide if the lot’s owner is liable.
The Rishonim who understood that the Mishna is discussing damages that were suffered both after the wall fell, as well as during the course of its fall, understand that the Gemara says that in both situations the damages are in the class of bor. However, they question the rationale for this classification for damages caused during the fall since a key feature of bor is that it is stationery and it causes damage because the victim falls into it.
They argue that it seems that damages that occurred during the course of the fall should be classified as eish-a fire, since a fire moves to damage its victim. They ask that the falling wall is similar to a stone that was placed on a roof and was hurled by the wind into an object and damaged the object, which the Gemara classifies as eish.
One approach of the Rishonim (Rabbeini Peretz, Rabbeinu Yeshaya and res. (4, 114) of the Rashbo) is that when one lights a fire, he immediately creates a hazard that requires precautionary measures and the reason he is liable is because he failed to take precautionary measures to ensure that the hazard will not damage. Similarly, when one places a stone in a precarious state, he is immediately creating a hazardous state that requires precautionary measures.
However, a wall or tree are not immediate hazards. The reason they damage is due to their deterioration. If one follows this approach, the barrier is similar to a tree or wall since it only damaged because of its deterioration. Therefore, according to these Rishonim, if there were indications that the barrier might malfunction the reason the owner is liable is that his barrier damaged in a manner that is classified as bor.
A second approach is suggested by the Rosh (BK 1, 1) and the Rashbo (in his commentary). They explain that the key feature that distinguishes the eish class of damages is that in order to damage they require the assistance of an external factor, which in the case of a fire is the wind. This explains why a stone that was placed on a roof is classified as eish: because it required the assistance of the wind to hurl it at its victim.
By contrast, when a wall damages in falling, the wall damaged because it was unable to remain standing due to its own condition. The wall did not require external assistance. Therefore, the damages are classified by the Gemara as bor and not eish.
The Acharonim (Pilpulo Charifta, Nachalas Dovid, Even Ho’ozel) find this approach very difficult. If we analyze this approach, it maintains that since the wall damaged in motion it is similar to eish. The reason we don’t classify it as eish is because it did not require any external assistance in order to accomplish the damage. However, the difficulty is that the fact that a wall does not require external assistance is not a reason to exonerate the owner. On the contrary, it is a reason his liability is greater. His ownership of the source of the damage is more complete because his object damages without any external assistance. The Acharonim offer several solutions.
The Nachalas Dovid answers that what these Rishonim meant when they said that there is an external factor is that the external factor increases the range where the hazard can damage. A fire or a stone can even damage objects that are not in their proximity because the wind can carry them to distant places. However, a wall, even though it damages in a non-stationery manner, has a range for damage that is limited to its immediate proximity due to the lack of an external force to propel it to distant places. If one follows this explanation, the damages that result from the barrier’s malfunction are classified as bor since it only can damage objects that are under the barrier.
The Even Ho’ozel (Nizkei Momon 13, 19) offers a different approach. He understands that these Rishonim meant that since a fire is driven by external forces, therefore, as soon as it is lit, even if it is on the property of the one who lit the fire, it is a hazard. By contrast, one is liable for a bor even if at the time it is dug it is not a hazard e.g., it was dug on one’s own property and later on the landowner ceded ownership of the surrounding land. If one follows this approach, again the damages of a faulty barrier are classified as bor since at the time of its construction it was not a hazard.
We mentioned at the outset that the Mishna states that each class of damages has its own laws. A law that applies exclusively to the class bor is that one is not liable for objects that are damaged in a manner that is classified as bor (chamor velo keilim). Therefore, since your car is an object, the owner of the lot is not liable for damages suffered by your car even if there were indications that the barrier was not in proper condition, since we learned that the damages during the barrier’s fall are classified as bor.
We note that the Birkas Shmuel (BK 2) maintained that one is chayav bedinei Shomaim, liable in the heavenly tribunal, if his bor damaged an object. But the Chazon Ish was of the opinion that one is not even chayav bedinei Shomaim for such damage.
In this section, we determined that if there were no prior indications that the barrier was not in proper order the owner of the lot is certainly not liable for the damages you suffered. Furthermore, even if there were prior indications, beis din would not make him pay since it is a bor that is not liable for damage to objects.
However, this discussion was confined to whether the owner of the lot is liable because he is the owner of the barrier that damaged your car. In the next article we will Be’ezras Hashem consider another possible source of liability of the lot owner and we will study your second question: whether you are entitled to a refund of the money you paid for parking.
