Yoni owned a warehouse and rented out storage space to businesses. He also allotted a certain amount of space free of charge to charitable organizations, one of which stored large quantities of medical supplies in it.
One day, this organization procured its own building and wished to move its supplies out. “Thank you for your help during the past few years,” the director said to Yoni.
“It was my privilege,” replied Yoni. “Come anytime you want between 9:00 and 5:00.”
“Okay,” said the director. “We’ll send someone with a truck to clear it out.”
A few days later, a truck pulled up outside the warehouse. “We were hired to move the medical supplies from your warehouse,” the driver said to Yoni. Yoni took him to the room where the medical supplies were held and showed him the freight elevator.
The driver moved the supplies and then packed the elevator to the hilt. The elevator creaked under the heavy load as it went down, and then stopped.
The driver managed to unload the elevator, but it wouldn’t budge afterwards. A serviceman came and said, “The elevator was overloaded. The brakes have to be replaced.”
Yoni turned to the organization to cover the repair of the elevator. The organization referred him to the shipping company and the shipping company referred him to the driver. Each denied responsibility.
Yoni called Rabbi Dayan and asked, “Who’s liable for the damage to the elevator?”
Rabbi Dayan replied, “Although you allowed the organization to use the warehouse and the driver to use the elevator, you didn’t allow them to cause damage. If the worker had used the elevator according to regulations, he would be exempt like a borrower who is exempt if meisa machamas melachah – the damage occurred in the course of regular usage [Choshen Mishpat 340:1].
“However, since the driver overloaded the elevator, he is liable for the damage. Although he didn’t damage intentionally, he was negligent and thus liable even for unintentional damage” [Choshen Mishpat 378:1].
“Although the driver is an employee of the shipping company, which was, in turn, hired by the organization, the rule is ein shaliach l’dvar aveirah – one is not considered an agent to commit a prohibition – so responsibility for the damage is not transferred back to the shipping company or organization [Rema, Choshen Mishpat 348:8].
“The truth is that some suggest that a person explicitly hired to damage can be considered an agent [see Machaneh Ephraim, Shluchin v’Shutfin #11]. However, in this case, the driver was not hired to overload the elevator; he was hired to move the supplies in a proper manner, so he certainly cannot be considered an agent or extension of the employer” [Pischei Choshen, Nezikin 1:44; Geneivah 4:67].
“Nonetheless, in many situations the employee is covered by the employer’s insurance. That doesn’t mean the employee is completely exempt from liability, but since the common practice is to collect from the insurance, the worker may not have to pay anything. If it’s not possible to collect from the insurance, the driver is responsible to cover the damage” [see Pischei Choshen, Pikadon, 8:18].