Shabbat Parashat Vayishlach | 5769
Damage Payment for One Who Tripped in a Store
(based on Halacha Psuka, vol. 49 - A Condensation of a P’sak by Beit Din Gazit of Tzefat)
Case: A customer (=pl) entered a store and tripped on a slightly elevated tile, resulting in a fractured rib and complications that caused him much anguish, two weeks of missed work, and a restriction on lifting heavy items. Pl demands significant compensation for all of the above, especially considering that if the storeowner (=def) were insured, the insurance would have been obligated to pay generously.
Ruling: The gemara (Bava Kama 49b) deals with a machloket among Tannaim and Amoraim regarding if one is obligated to pay for damages caused by a “bor” (pit, and other equivalent situations) that exists in the defendant’s own property. The Shulchan Aruch (Choshen Mishpat 410:6) rules that if one dug a bor in his own property and relinquished his rights to the property in a manner that masses may enter, he is obligated. This is the situation regarding a store, where one invites whoever wants to enter. However, beit din toured the store and found that the tile upon which pl fell was higher by only a tiny amount and, the store’s longtime workers attest that in the many years that the situation existed nobody had fallen. Therefore, there is at best a safek bor (a possibility that a “pit” exists).
In our times, when authentic semicha no longer exists, there are certain areas of adjudication that our dayanim cannot perform. Among them are matters of payment that exceed the actual damage. The poskim dispute whether our dayanim can judge matters of bor (Shvut Yaakov I, 136) or not (Shach, CM 1:2, in the name of the Maharshal), but the Pitchei Teshuva (1:1) and others accept the opinion that they can.
The payment for damages caused by a bor consists of what is known as nezek, which is permanent damages that would result in the lowering of the person’s value were he to be sold as a slave. However, other payments, such as for medical bills, missed work, embarrassment, and anguish, do not apply to bor (Shulchan Aruch, CM 410:34). In our case, there is no long-term damage, as pl’s situation is improving and is expected to return to normal. Beit din has found out that pl’s claim that he will never be able to lift heavy items is not medically sound. Since we are talking about a safek bor and the payments do not fit under the category of those that can be levied, beit din cannot obligate def to pay.
However, it is standard practice for businesses to insure themselves for cases such as these, and it is clear that had def done so, def would be entitled to significant payment. If he had sued (improperly) in secular court he would have likely received significant payment. Therefore, def accepted beit din’s request that he agree to pay, based on the concept of willing compromise, for the anguish he caused. Beit din set the payment at 2,000 shekels.
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This edition of Hemdat Yamim is dedicated to the memory of
R ' Meir ben Yechezkel Shraga Brachfeld
Hemdat Yamim is endowed by Les & Ethel Sutker of
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