Question
I was peacefully walking my dog on the street one morning. For no apparent reason my neighbor's pedigree cat started taunting my otherwise peaceful dog. My dog got very angry and pulled very hard on the leash in order to attack the cat. It took a lot of energy for me to restrain my dog. However, after the cat kept going on for a few minutes I had enough and I released my dog, who immediately pounced on the cat and killed it. Am I liable for the value of the cat?
Answer
The first issue is to classify the damage that your dog did. The Torah divides the damages done by a person's animal into three classes: keren-goring, shein-eating and regel-walking over something. Shein includes damage that was done by the animal as a result of an action that the animal did for its own benefit. Regel includes damage caused by the animal as a result of its routine activity. Keren includes all damage that was done by the animal with intent to damage. Since your dog's motive was to attack the cat, obviously the dog's action is classified as keren.
The parameters of keren are that the animal's owner is liable for its damages even if they were done in the public thoroughfare. However, in your situation, if you had been walking next to your dog and not holding onto its leash, you would not have been liable. The reason is that the Gemara (BK 24B) writes that if someone taunted a dog and consequently the dog damaged the one who taunted him, the dog's owner is not liable because the one who taunted the dog acted in an improper manner. The general rule is that an animal's owner is not liable for his animal's acting improperly in response to the victim's improper behavior.
However, in your situation you restrained your dog until you released him. Therefore, we have to consider if your release of your dog is grounds for your liability.
The Gemara discusses releasing a restraint in a different manner and in a different context. The Gemara (Sanhedrin 77B) discusses a person who bound another person's hands and feet near rushing water and then made a hole in the barrier that had prevented the bound individual from drowning The Gemara rules that if the water that drowned the victim was the water that was previously held back by a restraint, the one who made the hole is a murderer who is liable for the death penalty. (According to many including the Rashash in Chulin it is not important who originally bound the victim.) The Gemara (Chulin 16A) derives from this that if the rushing waters cause a knife to slaughter an animal in the proper manner, the animal is in fact considered properly slaughtered and may be eaten.
Since one is only considered a murderer if he did an action that killed a victim, we can derive from this ruling that when one removes a restraint, the immediate action that results from his removal is considered his action. That is why the shechito is proper even though shechito requires ko'ach gavro-human action, and here the immediate action was done by the water. The reason is because we view the action of removing the barrier as if it directly cut the animal's neck.
We note that this rule serves as the source for many laws including the prohibition to turn on an electric switch on Shabbos. Similarly, the Biyur Halocho (252, 5) rules that if one removes a barrier and thus allows waters to rush in and turn the wheel of a mill that grinds wheat into flout, the one who removed the impediment violated the Biblical injunction against grinding on Shabbos.
Even though had you not restrained your dog it would certainly have attacked the cat right away, nevertheless you are liable for releasing the dog according to most opinions. A notable exception is the Tevuas Shor (YD 3, 2) who claims that the Rashbo maintains that in your situation release of an impediment is not viewed as your action because you only undid your own previous action. But the consensus (see e.g., Rama (Sanhedrin ibid), Chazon Ish (Bk 2, 16)) is that even under these circumstances the consequences of the release are considered the action of the one who removed the impediment.
According to many opinions (Ran, Rabbeinu Yerucham) when the case involves damage and not murder, even if the action that resulted from the release of the impediment is not so immediate, the one who removed the impediment is liable for the resulting action.
Even according to those who do not differentiate between killing and damaging, if your dog immediately pounced on the cat as soon as you released him, we view your action as if you placed your dog on the cat.
Furthermore, according to the conclusion of the argument, even if you did not place your dog on the cat you are liable for the resultant damages. Therefore, even if after you released your dog he needed to chase the cat until he caught him, you are liable.
Having derived that a situation that directly results from your action is considered as if you caused that situation, and since the result of your action was that your dog pounced on the cat, we have to consider the liability of one who placed an animal near its subsequent victim.
The situation in the Gemara (BK 56B) where the Rishonim discuss this issue is where A hit B's animal, causing the animal to move to the proximity of C's grain (an action that is called ma'amid) and the animal subsequently ate the grain. The Gemara rules that A is liable for C's loss.
The Rishonim dispute how to classify A's act of damage. Tosafos explains that even though the animal only ate C's grain because of A's action, we classify the damages as shein. Even though normally only the owner of the animal is liable for damages that are classified as shein, here, since the animal's eating was a result of A's action, A is liable for the shein damages of B's animal. Thus, the approach of Tosafos is that we classify the act of damage based on what the animal did and merely change the identity of the one who is liable to reflect A's role in the damage.
However, the Rashbo (ibid) maintains that not only is A liable, but it is considered as if he fed the grain to the animal. Therefore, the class of damages to which this case belongs is odom hamazik. (Chazon Ish says it is eisho meshum chetsov.) Therefore even if C's grain was situated in public property A is liable. According to Tosafos he is not liable if the grain was on public properly since shein is not liable for damage caused in public property.
This dispute affects your situation as well. If you are considered a ma'amid, then according to Tosafos (according to some explanations, namely, Rav Shimon BK 22, Kovetz Biyurim (BK 48)) you would be liable but the damages would be classified as keren, since intended damage falls into the category of keren. However, according to the Rashbo you would be classified as odom hamazik.
According to other explanations (Terumas Hadeshen (315), Nachalas Yehoshua) in your situation even Tosafos rules that the damages are classified as adam hamazik. We note that in any case SA (CM 394, 3) rules that the Rashbo's approach is authoritative.
The Gemara does not directly address how close to the grain the person must place the animal in order to be considered a ma'amid. The Chazon Ish (BK 1, 7 umevuar) and the Even Ho'ozer (OC 328) say that it suffices if the result of A's beating B's animal is that the animal will certainly go to the grain.
Since we clarified earlier that when one removes an impediment the immediate result of his action is considered his action, and in your situation it was certain that as soon as you released the leash the dog would attack the cat, we view your release of your grip as an act of ma'amid of your dog on the cat. Thus, even though the dog did an act of damage of keren, you are liable as odom hamazik.
We note that even without all of the above reasons, you are certainly liable at least in the Heavenly court-chayav bedinei Shomayim, since you caused the damage.
We can derive this because your case is similar to one who breaks the wall of a barn and thus allows an ox to leave the barn and damage. According to the Rambam and SA (396, 4) the one who broke the wall is even liable in beis din for the damage that the ox does as a result. However, according to many others, and this is the ruling of the Ramo, he is only chayav bedinei Shomayim since he only caused the damages (See Gro 396, 8) but did not directly damage.
In conclusion: You certainly are chayav bedinei Shomayim and according to many even beis din would force you to pay. Therefore, you certainly should pay the value of the cat to its owner.
