Mr. and Mrs. Lewis lived on the ground floor of a two-family house. They were sitting in their living room one evening when they began to notice a water stain developing rapidly on their ceiling.
“Look at that!” Mrs. Lewis said to her husband. “What’s going on?”
“There seems to be a problem with the plumbing above,” said Mr. Lewis.
As he said this, water began dripping from the ceiling, then streaming.
Mr. Lewis quickly called the owner above, Mr. Wasser, but the phone was busy. He ran upstairs and knocked on the door.
“We’re getting water streaming from our ceiling!” Mr. Lewis exclaimed. “There’s a problem with your plumbing.”
“I’ll shut the main right away,” said Mr. Wasser. He shut the main, and then accompanied Mr. Lewis downstairs.
The water had already managed to cause damage in the dwelling below. The carpet was soaked, books were waterlogged, and paint was peeling from the ceiling.
“A pipe must have burst,” said Mr. Wasser. “I’ll have to call the plumber to check. It’s good that you called me so that I was able to shut the main before there was any further damage.”
“There is quite enough damage, as is,” said Mr. Lewis. “If it was your plumbing, you are responsible for the damage.”
“I can’t be held liable for a burst pipe,” said Mr. Wasser. “It’s not my fault. The plumbing was installed properly and I was not aware of any problem until you notified me.”
“Nonetheless, the damage emanated from your property,” argued Mr. Lewis.
“I’ll check with my insurance agent and lawyer about liability for the damage,” responded Mr. Wasser, “but this seems unreasonable.”
“You’re welcome to consult with them,” said Mr. Lewis, “but I still plan on issuing a claim of damage in beis din.
“That’s fine with me,” replied Mr. Wasser. “I’m happy to hear what they say.”
The two came before Rabbi Dayan and asked: “Is Mr. Wasser liable for the damage done by the water from his burst pipe?”
“In this case, where the pipe burst suddenly and Mr. Wasser dealt with it promptly, he is not liable for the damage done by the water,” answered Rabbi Dayan. “If he were negligent in dealing with the problem, he would be liable.”
“Why is that?” asked Mr. Lewis.
“Once the water passes the upstairs’ water meter, it is considered Mr. Wasser’s property that damaged,” replied Rabbi Dayan. “Since the water is moved by the force of the pump and gravity it is included in the category of aish [fire], which is defined as property that damages in conjunction with external forces (e.g., wind).” (C.M. 418:1; Pischei Choshen, Nezikin 5:3, 9:1)
“There is a difference, however, between damage done by a person and damage done by his property,” continued Rabbi Dayan. “A person who damages is liable even if he was not negligent. However, when a person’s property damages, he is liable only if he was negligent in looking after it.” (C.M. 378:1-3, 418:2-4)
“Therefore, if Mr. Wasser knew of the problem and was negligent in fixing it, he can be liable for the damage,” continued Rabbi Dayan. “However, in our case, where the pipe burst suddenly and the water damaged before he knew about the problem, he was not negligent and is not liable for the damage.” (See C.M. 410:26)
“What about dina d’malchusa, law of the land?” asked Mr. Lewis.
“In many countries, civil law also makes this distinction,” said Rabbi Dayan. “A person is generally not liable for water damage caused suddenly without negligence; it is covered by the damaged party’s own home insurance. However, if there was proven negligence, the person is liable, and there would be a claim against him and his insurance. (See Emek Hamishpat, Shecheinim #28)