Shabbat Parashat Vayechi 5780

P'ninat Mishpat: “Don’t Let the Bedbugs Bite” – part I

Case: The plaintiff (=pl) ran group tours that, one Shabbat, used the defendant’s guest house (=def). Over Shabbat, pl felt bites but assumed they were mosquito bites. When the symptoms recurred at home and she discussed the matter with group members and def, she figured out that she brought bedbugs home from def, from which the others and def were also suffering. Def sent an exterminator to pl’s house, but their one-time treatment did not help (it helped other group members but not def). Def entered a grueling three-month extermination regimen, which solved the problem. Pl ended up throwing out all of their bedroom furniture. Pl is suing for the value of the discarded furniture (30,000 shekels); expenses of massive washing and drying fabrics, including damage to the washer and dryer (7,000 shekels); buying new temporary (out of fear of recurrence) furniture (15,000 shekels); distress (10,000 shekels). Def responded that it was possible that someone in the group brought the bedbugs to def (they did not have problems before, and did have afterward). Def argued that they were not at all negligent and paid for an exterminator for all involved beyond the letter of the law. (Def has insurance for the claims but relinquished their rights to them by adjudicating in beit din instead of secular court.)

Ruling: First we will deal with the basis of the halachic principle to be used. It is possible to obligate someone based on classic Halacha or standard local practice. Establishments on the level of def are expected to be insured, and insurance companies generally adjudicate only in secular court. Rav Asher Weiss (Techumin XXX, p. 278) posits that one may sue kupot cholim (=kc) doctors for malpractice in secular court even if they receive more payment than they would get according to Halacha. This is because kc’s insurance companies are the ones to pay in practice, and they obligate themselves to the patients according to the rulings of these courts.

He gives the following answers to the question that the insurers are actually only taking responsibility in reference to their doctors, and in the question between the patients and the doctors, the doctors are basically exempt from paying for bodily damage (Bava Kama 84a): 1. The Rama (Choshen Mishpat 1:2) says it is possible to force a damager to appease the injured beyond the letter of the law. 2. Kc promises good care for its patients, which includes a valid, albeit implied, obligation of malpractice compensation. 3. The insurance company earmarks premium money for paying for X number of cases, which are, in effect, paid by the patients; it is just a matter of determining which patients are the proper recipients.

We will base ourselves on Rav Weiss’ reason #2 and differ in one point. Rav Weiss does not consider it feasible for beit din to determine the awards according to industry assumptions; we believe beit din can make those determinations (with the help of experts). It is as the S’ma (26:11) says that if two sides obligate themselves to adjudicate in non-Jewish court, they must adjudicate in beit din, but beit din applies the obligations that the courts would have.

Our batei din also hold parties to accepted societal norms of certain elements of monetary interaction. We may do this without determining how specific secular courts apply the principles, but based on our judgment.

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