The Metzgers lived on the corner of a fairly busy street. “I feel that we have no privacy,” Mrs. Metzger said to her husband. “Is there something we can do?”
“We can put up a nice wooden picket fence around the property,” replied Mr. Metzger. “It would provide privacy and look aesthetically pleasant.”
The Metzgers built a fence adjacent to the sidewalk. To be on the safe side, the carpenter pulled the fence an inch into the property line.
Over the years, one of the nails in the fence became loose and started to jut out of the fence.
On a fine Shabbos morning, Noach Simon strutted to shul for his bar mitzvah, wearing a brand new suit. The family walked along, two abreast in a throng to the shul. As they turned the corner, Noach squeezed by, brushing up against the Metzgers’ fence.
Noach felt a tug, and then heard a rip. His jacket had been caught on the nail, and the beautiful suit had a tear.
“Oy, you can’t go to shul like this,” Mr. Simon said. “What a shame! Run home and change into another suit.”
Noach ran home and put on his old suit.
After Shabbos, Mr. Simon contacted Mr. Metzger. “We were walking by your property this morning,” he said. “My son, Noach, was wearing a brand new suit for his bar mitzvah and brushed up against your fence. A nail was sticking out into the sidewalk and ripped his jacket. We paid $300 for the suit.”
“Mazal Tov on the bar mitzvah,” said Mr. Metzger. “I’m terribly sorry about the jacket, but I don’t think I’m liable for the tear. I wasn’t aware of the nail sticking out. Anyway, we pulled the fence into our property an inch, so even if the nail stuck out a little, it was still within my property and not sticking into the sidewalk.”
“So what!” exclaimed Mr. Simon. “Your nail posed a hazard and caused damage. You owe us for the suit!”
“I’m not convinced,” said Mr. Metzger. “Noach should have kept to the sidewalk and not brushed up against the fence. Check it out with Rabbi Dayan!”
“I most definitely will,” said Mr. Simon. “I’ll call him right now.”
Mr. Simon called Rabbi Dayan. “Mr. Metzger’s fence had a nail sticking out,” he related. “My son walked by and the nail caught his suit and tore it. Is Mr. Metzger liable for the suit?”
“A person must be careful that his fence does not jut out into a public domain in a manner that can damage,” replied Rabbi Dayan. “The Mishnah [B.K. 30a] teaches that if a person grew a fence of thorns that damaged those passing by, he is liable; it is included in the category of bor [pit].”
“But the nail didn’t jut out into the sidewalk,” objected Mr. Metzger. “It was still within my property line.”
“In that case, the Gemara [ibid.] teaches that the property owner is not liable,” replied Rabbi Dayan. “The reason is that people don’t generally rub up against walls at the very edge of the sidewalk, so that one who deviated is responsible for his own damage. [Rashi B.K. 29b s.v. l’hiskachech] Nonetheless, it is morally proper to remove potential dangers even within one’s own property.” (C.M. 415:1,3)
“Moreover, there are two other reasons to exempt Mr. Metzger for damage to the suit, even if the nail stuck out into the sidewalk,” continued Rabbi Dayan. “First, if the fence was made properly and Mr. Metzger did not know about the loose nail, he is not liable until he becomes aware of it.” (C.M. 410:4,22)