Question
I was standing on the street talking on my cell phone when a person suddenly dashed by in order to catch the bus that was already standing at the bus stop. In his haste he banged into my cell phone and knocked it out of my hand. Unbeknownst to the driver (or anyone else at the time), the cell phone landed under the wheels of the bus and when the bus pulled out it crushed my cell phone rendering it worthless. Is the one who inadvertently banged into my cell phone liable for my loss?
Answer
First, we should mention the Gemoro (BK 32A) that says that running in the public thoroughfare is an unusual use of the public property and therefore, if a runner damages when running he is liable for the ensuing damages. However, in your case the runner did not directly damage your phone but unintentionally set up a situation which resulted in your phone's destruction by the bus. Therefore, the issue we must investigate is how to classify the runner's action.
In order to find an analogous case discussed by earlier authorities we have to first determine the key issues.
In your case the runner pushed the damaged object onto a place where it was nearly certain that it would be damaged. It was in fact almost immediately damaged unintentionally.
A somewhat similar case that is discussed in the Gemara (BK 56A) concerns A who bent B's standing grain into the path of a blaze and thereby caused the grain to be consumed by the blaze. (The Chazon Ish (BK 2, 10) discusses where the grain would have been consumed even had it not been bent and remains with a doubt how to rule.)
The Gemara states unequivocally that if as a result of bending it over the blaze was expected to consume grain, the one who bent it down is liable. Tosafos explains that the principle behind the Gemoro's ruling is that just like when one sets a fire, he is liable for the ensuing damages because he brought the fire to the consumed property, so too when someone brings property to a fire, he is likewise liable for its destruction because it is included in the category of damages called eish.
Tosafos says that based on this principle, if one places an object near a lion, he is liable for subsequent damages under the category of eish. Similarly, if one renders a person immobile and then places him in a place where the sun will begin shining shortly thereafter and, as a result, the victim dies from a sunstroke, the one who placed him there is a murderer.
From the fact that that Tosafos considers the one who placed the victim in the place where he was killed as a murderer, it is clear that this type of damage is odom hamazik. In the context of eish this is called eisho meshum cheetsov. It is considered as if the murderer directed the sun's rays onto the victim. This is clear because the Gemoro (BK 22B) states that only if eisho meshum cheetsov is one considered a murderer. In another place (Sanhedrin 77A), Tosafos is uncertain if the one who damaged is liable as odom hamazik or just as an owner of the eish (eisho meshum momono). In any case, he is liable for the ensuing damages.
Tosafos questions his principle that one who brings the victim to the source of damage is equivalent to one who brings the source of damage to the victim because the Gemoro (BK 23B) cites the authoritative position of the Rabbonon that one is not liable if he placed someone's hand inside a snake's mouth where it was subsequently bitten. Tosafos answers that the reason he is not liable is because when he placed his victim's hand in the snake's mouth, the snake's venom did not yet exist. The Chazon Ish (BK 14, 9) says that perhaps one who places someone's hand inside the snake's mouth is liable for damages and Tosafos only explains why he is not a murderer, but that is not certain.
An interesting application of the principle of Tosafos concerns the laws of Shabbos. The Har Tzvi (res. Orach Chaim 136) rules that if one places food on a stovetop when the electricity is off but will subsequently go on (e.g., it is attached to a timer), he is considered as having cooked on Shabbos. His reasoning is that if we maintain that one who places an object where it will subsequently be damaged is considered as if he damaged the object, so too it is considered as if he cooked the food. Other poskim disagree because they view the electric current as being comparable to the snake's venom. But we see that Tosafos' principles apply to the laws of Shabbos as well as damages, since they are principles of how to view a person's actions that apply universally.
Returning to your question, since the driver was unaware that your cell phone was under the wheels of his bus, the action of the runner is equivalent to one who placed food in the vicinity of a lion. Therefore, the runner is liable and his damage falls into the category of eish. As we saw, according to one Tosafos for sure, and according to the other perhaps, the bus driver's act of crushing your cell phone is considered as if the runner crushed your cell phone and therefore it is eisho meshum cheetsov which is odom hamazik. The other possibility is that it is eisho meshum momono. This doubt does not affect liability for damages but has consequences in other situations such as Shabbos.
We should note that the above is based on the fact that the bus driver did not intend to damage your cell phone. If he had intentionally driven over your cell phone, the runner would not be liable because then we attribute the damage to the bus driver. Proof of this can be derived from a ruling of Tosafos (BK 6A) that in case A used B's fire to damage C, A is liable and not B even though B did not watch his fire properly.
Perhaps there is a second reason in your case to rule that the runner is liable. The Nesivos in a number of places (e.g., 291, 7) postulates that one who moves an object from a safe place to an unsafe place is considered to be damaging the object. He bases this on the Gemara (BM 25B) that states that if one finds an object in an active garbage dump, he may keep it because we view the owner who put his object there as if he rendered it a lost object. He reasons that similarly anyone who puts an object in an unsafe place is considered as having damaged the object because he rendered it a lost object.
His proof is somewhat strained because when an owner places his own object in an active garbage dump, he shows that he is no longer interested in the object. According to some (Ramo (261, 4) he renders it ownerless immediately. According to others (Mechabeir ibid.) it is not ownerless but people do not have an obligation to return the object to him. Neither of these approaches imply that one who puts someone else's object in a garbage dump is damaging the object. This does not mean that he will not be liable in case damages ensue, since he will often be liable for garmi. Nonetheless, there is no proof that his act is a direct act of damage.
Already before the Shev Yacov (CM 11 cited by Pischei Teshuvo (176, 13) ruled that if a watchman gives an object to someone who is not trustworthy to watch, he is a considered as having damaged the object (and not just negligent in his duties as a watchman), which is the same as the Nesevos.
Similarly, Rav Moshe Feinstein (CM 2, 61 be. wo. avol) writes that one who places another person's object in a public thoroughfare is liable for damaging the object. He reasons that by placing it in a place where many people will take it, he is considered as directly damaging the object and it is not just garmi. Rav Moshe did not offer any proof or explanation. However, the Chiddushei Harim (end Kesubos 107, be. wo. uvose) rules similarly and explains that the reason is that when one places an object in an unsafe place the object's value goes down immediately and the damage is the decline in value.
We should note that if the Nesivos applies in your case, then even if the bus driver had intentionally driven over your cellphone the runner would be liable since he would be liable for putting your cellphone in a precarious place.
An indication that the Nesivos does not apply in your situation is that otherwise where a person bent grain into the path of an oncoming fire, Tosafos has no proof that one who brings an object towards a fire is liable for eish since he would be liable because he placed the grain in a precarious place causing a decline in the value of the grain.
It seems that even the Nesivos et al agree that if a person places an object in a place which is not inherently unsafe, he is not liable. In the case of the grain and the fire no inherent damage was done to the grain by bending it. Since it is only when there is an approaching fire that it is undesirable to bend the grain, one does not consider the one who bent the grain as having caused damage or causing a decline in the value of the grain.
Similarly in your situation, no inherent damage was done to your cell phone when it was put under the wheels of the bus since the place it fell was in sight of the owner and had the bus not destroyed it the owner would have picked up his phone. Therefore, the postulate of the Nesivos does not apply in your case.
However, the runner is liable because of the first reason because his act is called eish. Besides this he is also liable as garmi.
In conclusion: The runner owes you the value of your phone.
