Shabbat Parashat Balak 5777

P'ninat Mishpat: Altercation with a Photographer – part I

Case: The plaintiff (=pl) is a newspaper photographer who went to a building site in a settlement that was the subject of legal/public controversy. Upon starting to take pictures, Reuven, a guard at the site, told him to leave. He continued taking pictures from a nearby public street, and then Reuven was joined by the defendant (=def), the site’s foreman. After a short argument, pl started taking pictures of def until the camera sharply hit him in the nose causing blood to stream down. Putting down the camera, he saw that only def was close enough to have hit him. Def denies hitting him and said that he only raised his hand to block the camera’s view, and that apparently pl banged the camera into his nose himself. Reuven’s story was similar. Pl is suing for 100,000 shekels (his injury includes a deviated septum).

Ruling: There are no witnesses, including even pl, who claim to have seen def strike pl’s camera, but there is significant circumstantial evidence. Reuven’s accounts were full of inconsistencies, and a few witnesses related that Reuven had told them after the event that there had been an altercation between pl and def. All acknowledge a policy to prevent photographers from taking pictures.

Usually, one cannot extract payment without witnesses or real proof. However, there is precedent for payment for physical damage with less than that. The mishna (Shvuot 44b) says that if there are witnesses that Shimon was undamaged before contact with Levi and was seen damaged right afterward, Levi has to pay for damages if Shimon swears that Levi damaged him. The Shulchan Aruch (Choshen Mishpat 90:16) rules this way when the damage was such that Shimon could not have done it himself and the witnesses believe there was no one but Levi in the position to do it. The Rambam explains that the easing of rules of proof is a penalty toward violent people, and the Ra’avad says that it is because the circumstantial evidence is particularly strong. Our case is similar in several ways.

On the other hand, here we lack witnesses before and after the damage occurred. The Terumat Hadeshen (II:208) says that the alleged damager’s denial is believed because of a migo that he could have denied the story. It is likely, though, that in this case, enough was seen (and photographed) to prove the basic story.

The Ramah (cited by the Tur, CM 90) says that the damaged person’s ability to receive payment after an oath only applies when it is known there was an altercation between them. While the Shulchan Aruch does not cite this position, important Acharonim do. In this case, there was great tension between pl and def. While we doubt that def struck pl with the intention to hurt him, there was enough of an altercation to not be surprised if there was physical contact with the intention of stopping the picture taking. This could have inadvertently caused the physical damage.

Although we do not allow people to make an oath, pl deserves some compensation based on compromise in lieu of the oath. [Next time, we will explore for what elements pl is due to receive payment.]   

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