Question
During the summer vacation I took my family to a park where we made a barbecue. Before leaving I extinguished all the coals but left without cooling off the coals to the point that they could not burn anything. I noticed a group of nine-year-old children in the vicinity and warned them to be careful not to go near the coals. Later on, I heard that the children did not heed my warning and as a result one girl's skirt was burned and she herself suffered burn injury. Am I liable for the damages?
Answer
You certainly did not act properly because one must not leave hazards in the public domain. However, your question concerns liability and not morality.
A Gemara (BK 47 B) that is relevant to your question discusses a person who left his food in another person's property and an animal that belonged to the property's owner ate the food and was damaged. Rav says that the owner of the food is not liable for the damages because he can argue that the animal should not have eaten the food.
Tosafos and the Rosh (BK 5, 3) dispute the meaning of the argument that the animal should not have eaten the food. The Rosh understands that what happened is that the animal overate and as a result he died and the meaning is that the one who placed the food did not have to consider the possibility that the animal would overeat to the point that he would die since that is unusual.
Tosafos disagrees and proves that the one who places the damaging object is exonerated even if it is not unusual that the animal would be damaged. They explain that the reason the one who placed the food is exonerated is because the animal damaged itself by partaking of the damaging object and one is only liable for damages that he did.
The Chazon Ish (BK 8, 9) explains Tosafos that the reason why the one who placed the damaging object is absolved is because the victim knowingly (even though it is an animal) damaged itself and the Torah never places liability upon someone else in such situations.
He explains that if we were to place liability upon the one who put down the damaging object, we would be classifying the damages as bor-comparable to one who dug a pit in the public property, since the damaging object was stationary at the time the damage occurred. However, the Torah only places responsibility on the one who creates a bor when the victim falls inadvertently into the bor. If the victim causes his fall the one who created the bor is not liable.
This concept applies to damages in general. For example, the Chazon Ish (BK 12, 7) explains that this is the reason the Gemara (BK 52B) rules that one who digs a pit in public property is not liable if an animal that can see fell into the pit during the day, because the animal caused its own damage.
The Gemara cites a Braiso that rules that if someone placed poison in front of an animal, he is only liable for the resultant damages in the heavenly court, implying that the court in this world exonerates him from paying damages. Based on this Braiso, the Gemara questions Rav's ruling because the implication of the Braiso is that the one who places a damaging item in front of an animal is only not liable if he put poison which animals usually do not eat. However, if he places food which animals generally eat, he should be liable.
The second answer of the Gemara is that when the Braiso exonerates the person who places poison in front of an animal it was not referring to poison which animals do not normally eat, but was referring to ordinary food that was poisonous for the animal. Since it was ordinary food, animals generally eat it and yet the Braiso rules that the one who placed the food is not liable in court in this world, which is in accordance with Rav's ruling.
The Maharsho comments on Tosafos that according to this approach, only when the poison is ordinary food which the animal normally eats, is one liable in the heavenly court. But if the animal does not ordinarily eat what he put there, even the heavenly court does not rule that the one who placed the poison is liable.
Based on the above, you are not liable for the girl's burns. Additionally, if the skirt belongs to her, you are not liable for the skirt either since she caused her own loss. According to the Maharsho you are not even liable in the heavenly court since he wrote that only when the animal eats something that appears to it to be food (but was poisonous) then the one who placed the damaging object is liable. Since the children were aware that the coals were hot and there was a danger that they could be burned, according to the Maharsho you are not liable in the heavenly court either.
Nowadays, when clothing no longer fits one child the parents pass the clothing onto the next child. Thus, it is clear that today, chareidi parents in Israel retain ownership of the clothing that they give their children to wear. This means that the skirt did not belong to the girl and the above does not apply to the damages to the skirt. In this case our analysis of what happened is that when the child played around the coals, the child spread the fire, which you left, onto her parents' skirt. Therefore, in contrast to where the skirt belongs to the child where your coals are classified as bor, in this scenario your coals have the status of eish because the child spread the fire that you left onto her parents' skirt. This is similar to the case of eish that the Torah discusses where wind spreads the fire and the one who set the fire is liable for the resultant damages.
In your situation, you are not liable in beis din because one is liable for eish only if the fire that he creates spreads because of a wind that blows normally. It would seem that you could have assumed that the children would not play next to the coals after your warning. Therefore, the child's action of spreading the fire from the coals to the skirt is comparable to an infrequent wind for which the one who set the original fire is not liable for resulting damages. The Tossafos Talmid Rabbeinu Tam (BK 9B) states that one is not even liable in the heavenly court in this case.
Your case is similar to a question that was asked to the Shimru Mishpot (1, 101). In his case, a person piled heavy tables on top of each other and placed them in his yard. The couple was aware that their children were playing with friends in the yard but did not pay attention to the children. The children played near the tables and one of the children banged into a table causing a table to fall on him. As a result, the child's glasses broke and he needed to go to the hospital by ambulance for checking. The Shimru Mishpot ruled that the owners of the tables are not liable because it is not to be expected that the children would play next to the heavy tables and the child caused his own damage.
In conclusion: Even though your action was improper you are not liable for the resultant damages even in the heavenly tribunal.
