Fall was turning into winter. The trees, which had turned flaming colors, were shedding their leaves and turning bare. Strong winds had broken some branches off the trees.
Mr. Stavsky raked the leaves from his property and gathered them in bags for collection by the Sanitation Department. He tied the broken branches together in bundles.
The evening before pickup, Mr. Stavsky placed the bags of leaves and bundles of branches at the curbside. Some of the longer branches jutted into the sidewalk.
In the morning, Mr. Harush was hurrying to work. He walked by Mr. Stavsky’s house and tripped over the branches, and fell sprawled on the ground. He broke the fall with his hand, but sprained his wrist badly and tore his suit.
Mr. Stavsky saw this from his window and hurried outside. He helped Mr. Harush up.
“How could you leave your branches like that!” Mr. Harush screamed at him.
“I’m sorry you got injured,” replied Mr. Stavsky. “I put the leaves and branches out for pickup today.”
“I was heading to work,” Mr. Harush grumbled. “That’s not happening, though. Today will be the doctor, and then a few days recuperation. A new suit… You’ll have to pay for this.”
“You should have watched where you were walking!” replied Mr. Stavsky. “I’m willing to ask Rabbi Dayan about my liability, though.”
Mr. Stavsky called Rabbi Dayan and asked:
“Am I liable for Mr. Harush’s injury and the damage to his suit?”
“A stationary obstacle left in a public area has the status of bor – a pit,” replied Rabbi Dayan. “It is subject to the laws of this category of damage” (C.M. 411:1).
“A person who digs a pit, or leaves an obstacle in a public area, is liable for physical damage it inflicts on a person” (C.M. 410:20).
“The Gemara (B.K. 27a) teaches that even if the victim stumbled over the obstacle in broad daylight, the person who placed it is liable, since – unlike animals – people look forward when walking, not downward, so that they are not always aware of obstacles in their path” (C.M.412:1; Sma 410:33).
“Furthermore, the Gemara (B.K. 30a; B.M. 118b) teaches that even during seasons when it is permissible to place trash out in public areas, the owner remains responsible for it, and is liable if it caused injury. Thus, although the branches were set out on collection day, this does not exempt Mr. Stavsky from liability when they jut out” (C.M. 412:5; 414:2; 417:6-7; Pischei Choshen, Nezikin 8:38).
“However, halacha holds the owner of the obstacle liable only for nezek (permanent physical damage, disability). The additional four payments imposed on one who actively injures another – tzaar (pain), ripui (medical costs), sheves (lost wages while recuperating), and boshes (embarrassment) – are not imposed on the owner of the bor” (C.M. 420:3; Pischei Choshen, Nezikin 7:[8]).
“Furthermore, the liability of bor is when the victim was injured by the obstacle itself, similar to one who was injured when falling into a pit, but if he tripped on the obstacle and was injured by the surrounding, ownerless, ground – according to many authorities the owner is not liable” (C.M. 411:1; see Gra 411:5).
“Finally, halacha exempts damage to inanimate items by bor or other obstacles. Thus, although Mr. Harush tore his suit, Mr. Stavsky is not liable for it” (C.M. 410:21; 412:5).
“Nonetheless, the Gemara (B.K. 29a; 56a) indicates that one who maliciously placed an obstacle outside is chayav b’dinei Shamayim even for damage to inanimate items,” concluded Rabbi Dayan. “If he did not intend to damage, but was negligent, it is questionable whether there is a moral obligation” (Chazon Ish, B.K. 2:7; Pischei Choshen, Nezikin 1:[1]; 9:[53]).
“Thus,” concluded Rabbi Dayan, “although Mr. Stavsky remains liable for the branches that he placed at the curb, the practical liability of bor is significantly limited in halacha. City law and homeowner’s insurance, though, will likely operate differently.”
Verdict: A person who puts branches at the curb carelessly remains liable for the damage they cause, but with limitations of bor.
