Moshe Bleich
Rabbi Bleich, the rav to the Young Israel of Brighton Beach, is also a member of the editorial committee of Machon Mishnat Rav Aharon [Kotler]
Ten Da'at, A Journal of Jewish Education, Vol. X:1, Adar 5757, Spring 1997

Key words: School, liability, injury

TEN DA'AT (Vol. VIII, no. 1, Spring 1995, pp. 49-53) featured an analysis by Rabbi Dr. Chanina Rabinowitz of the legal responsibilities of a school to protect its charges and the extent to which a school may be liable for damages in cases of injury to its students. It is of interest to note that a brief discussion of the halachic aspects of this topic appeared in the most recent issue of an Israeli Torah journal, Kovetz al Yad, Vol. XIII (Winter, 1996).

The Position of Rav Dinner
Rabbi Yehudah Aryeh ha-Levi Dinner present a very succinct one-page discussion of an actual case. He relates that a piece of metal was inadvertently left on the floor of a kindergarten playroom. During school hours one child pushed another with the result that the second child cut his hand on the metal and required medical treatment. The kindergarten teacher called an ambulance to transport the youngster to the hospital. Later, the parents of the injured child refused to reimburse the school for the ambulance charges on the claim that their tuition payment to the kindergarten gave rise to a duty on the part of the school to supervise and safeguard their child. Since the school is compensated for its services, they argued, it serves in the capacity of a bailee for hire (shomer sakhar) with regard to the children and is liable for any ensuing damage. Accordingly, argued the parents, the school should be held responsible for payment of ambulance charges.

Prior to addressing the specific issue of liability for the fee for the use of the ambulance, Rabbi Dinner examines the broader question of a school's financial liability for accidental injuries sustained by its student. An individual who accepts an object for safekeeping as a gratuitous bailee (shomer hinam) is obliged to return the object to his owner at the conclusion of the term of the bailment. In the event that the object has been destroyed or damaged pursuant to negligence on the part of the bailee, the bailee is liable. However, if the object is lost or stolen and there has been no negligence the bailee is not liable. An individual who receives compensation for his services as a bailee, i.e., a bailee for hire, is liable for loss or theft but is exempt from liability for damages due to circumstances beyond his control (o'nes). A person who borrows an object (sho'el) for his own use is liable in all situations in which the object is damaged or ruined other than for damages in the form of wear and tear that occur in the course of customary use.

Exceptions to the General Rules
There are, however, exceptions to the general rules. On the basis of rabbinic exegesis, the Gemara, Baba Kama 62b, establishes that the regulations governing bailment (shemirah), and the responsibilities devolving upon the bailee, apply only to portable items (metaltelin) and to things which have an inherent financial value (davar she-gufo mamon). Accordingly, real property (karka) and financial instruments (shetarot) are excluded from the regulations governing bailment. This aspect of the laws of shomrim is recorded in Shulhan Arukh, Hoshen Mishpat 301:1. Rabbi Dinner asserts that since there is a general rule that human beings have the same halachic status as land (adam hukash lekarka), it follows that given the fact that land is excluded from the laws of shemirah, human beings are also excluded from those provisions, i.e., neither real property nor human beings can be bailed. Hence, if damage occurs to an individual who is being "watched", the one who "watches" him is not financially liable.1

Rabbi Dinner further notes that with regard to property belonging to the Temple domain, Which is similarly excluded from the laws of bailment, Rambam, Hilchot Sekhirut 2:3, rules that the exemption with regard to liability of the bailee applies only in instances of loss or theft, or of damages that result from occurrences that are beyond the control of the bailee. However, if negligence is involved (peshi'a), the negligence is deemed to be tantamount to tort damage, i.e., direct damage caused by the bailee, with the result that he is held liable even if it is real property that is damaged. However, Ra'avad, ad locum, disagrees and maintains that the exemption of liability with regard to bailed real estate extends even to damage resulting from negligence.2 Shulhan Arukh, Hoshen Mishpat 66:40 and 301:1, cites both positions with regard to this matter. However, in Hoshen Mishpat 95:1, Shulhan Arukh rules simply that there is no obligation for negligence without citing a divergent view.3 Rema, Hoshen Mishpat 66:40 and 301:1, clearly maintains that the exemption includes even loss resulting from negligence. Shakh, Hoshen Mishpat 66:126 (and ibid., 95:3 and 301:3, citing his own previous comments on Hoshen Mishpat 66:126) asserts that the normative rule is in accordance with the view of Rambam and that the shomer is liable for negligence.

The School's Liability Depends on a Mahloket Aharonim
Rabbi Dinner maintains that the school which had assumed responsibility for supervising children was negligent in fulfillment of its duties. Since human beings have the halachic status of land, even a bailee for hire cannot be held liable for damage to the bailments. However, in the case under discussion, a piece of metal was left lying on the floor of the kindergarten. Rabbi Dinner asserts that leaving dangerous materials on the school grounds constitutes an act of negligence. Accordingly the issue of the school's liability is contingent upon resolution of the dispute between Rema and Shakh. According to the view of Rema, the school is exempt, whereas according to the view of Shakh, the school is liable.

For all practical purposes, little would be served by resolving that dispute. In monetary disputes, a defendant may enter a claim of "kim li - I maintain the minority position," in order to retain possession of funds claimed by an adversary. This is so because in matters of jurisprudence the principle of rov, i.e., a presumption that determination of the relevant rule is in accordance with the majority, does not pertain.4 Hence, if a parent seeks to sue the school, the school can certainly enter a claim of "kim li" invoking the position of Rema to the effect that the exemption to a bailee's liability for injury suffered by a human being applies even to cases of negligence.5

An Addendum by Rabbi Karelitz
Rabbi Dinner adds an interesting but cryptic comment on the basis of a personal communication to him by Rabbi Nissim Karelitz. Rabbi Karelitz remarked that, even according to the authorities who maintain that there is liability for negligence, such liability does not extend to reimbursement for medical fees. The nature of Rabbi Karelitz's distinction is a bit obscure. Presumably, it is based upon the fact that, in general, Jewish law does not impose liability for consequential damages. Thus, for example, a person who destroys an artisan's tools will be held responsible for the value of the tools but not for lost of earnings until the tools are replaced. Moreover, damage to property is assessed, not in terms of the cost of repair, but in terms of the depreciated resale value of the property as a result of the damage. A bailee's liability stems from breach of contract and is limited to the diminution of the value of the bailment. Rabbi Karelitz presumably meant to assert that the obligation of a person who is negligent in the care of a child is similarly limited to compensation for permanent physical impairment but not for other losses suffered. If that is the case, there can be no claim for recovery of medical expenses. That is also the view expressed by Rabbi Y.Y. Blau, Pithei Hoshen, Hilchot Pikadon u-She'elah 1:21, note 47.

The matter is, however, somewhat unclear. A bailee liable with negligence in a situation in which the laws of bailment do not apply is liable, not for breach of a bailment contract, but because negligence is treated as a tort. The tort, it would seem, should be regarded as in the nature of adam ha-mazik, i.e., causing damage, which when directed against a person, constitutes battery.6 Battery does indeed give rise to enhanced compensatory obligations, including an obligation for payment of medical expenses.

Rabbi Dinner raises the further point of whether it was indeed necessary to summon an ambulance or whether a taxi could have been hired for the same purpose at considerable less cost. Quite obviously, the school can claim reimbursement only for necessary expenses. Nevertheless, it would appear that, in cases of injury, the obligation to compensate for medical expenses is not limited to the treatment of already identified medical conditions but include necessary diagnostic measures taken to determine and limit the extent of the injury. Accordingly, the sole criterion to be applied is whether a reasonably prudent person would have summoned an ambulance in the given circumstances.

1. Although Rabbi Dinner assumes that, with regard to these laws, human beings have the status of land, the matter is far from simple. Rashi, Kiddushin 7a, s.v. sheyesh lahem akhrayut, clearly maintains that all human beings have the halachic status of land. However, Tosafot, ad locum, s.v. im kein, disagree sharply and assert that the principle applies only to slaves (avadim) but not to all human beings. For a further analysis of the positions of Rashi and Tosafot see Sha'ar ha-Melekh, Hilchot To'en ve-Nit'an 5:2. Shakh, Hoshen Mishpat 95:18, presents a lengthy discussion marshalling sources on both sides of the question but concludes that the opinion of Rashi is correct and that all human beings have the status of real property. An opposing conclusion is reached by Urim ve-Tumim 95:7. See also sources cited in Encyclopedia Talmudit, 1, 74-75.
It should be noted that R. Akiva Eger, in his glosses to the Yerushalmi at the beginning of the seventh chapter of Baba Kamma, accepts the view of Tosafot to the effect that only an eved knena'ani has the status of land. Cf., however, Or Sameah, Hilchot To'en ve-Nitan 5:2. It should also be noted that R. Akiva Eger, in his glosses to Yoreh De'ah 6:2 and in his responsa, Teshuvot R. Akiva Eger, no. 51, upon analyzing the rulings of Shulhan Arukh, arrives at a conclusion that is at variance with that of Shakh and maintains that only an eved kena'ani has the status of land. Cf. Or Sameah, Hilchot Gerushin 1:6, who resolves the difficulties identified by R. Akiva Eger in a different manner. For an analysis of the parameters and limitations of the parallel (hekesh) between an eved and real property, see R. Hayyim Soloveichik, Hiddushei ha-Grah al ha-Rambam, Hilchot Geneivah va-Aveidah 9:1, and Rabbi Leib Mallen, Hiddushei Reb Aryeh Leib 1, no. 62.
It should be added that there is some doubt with regard to the scope of the position espoused by Shakh. Although Shakh - Hoshen Mishpat 95:18, states simply that human beings have the status of land, the implication of his comments in Hoshen Mishpat 227:19 is that only a Hebrew servant (eved ivri) and an employee contracted for services has that status. If that is so, it follows that, even according to Shakh, children, who certainly are not employees, may be the subjects of "bailment" with attendant liability devolving upon their caretakers. Cf. R. Yaakov Y. Blau, Pithei Hoshen, II, Hilchot Pikadon u-She'elah 1:21, note 49.
2. Cf. Helkat Yo'av, II, no. 12, who distinguishes between passive negligence and certain forms of active negligence, and asserts that even Ra'avad agrees that there is tort liability for active negligence.
3. Cf. Bi'ur ha-Gra, Hoshen Mishpat 95:5.
4. The concept of kim li is discussed in some detail in Tradition, XXXVII, no. 2 (Winter, 1993), p. 25.
5. A similar ruling is clearly found in Pithei Teshuvah, Hoshen Mishpat 66:25, Rabbi Dinner adds that, if the school has already paid the medical fees and wishes to recoup those fees from the parents, the parents would also be able to advance a plea of "kim li" and invoke the position of Shakh that they are not under obligation to reimburse the school since the school is liable for its own negligence. The plead of "kim li" is equally available to a defendant in a cause of action and to a plaintiff whose claim has been satisfied but who is being sued to disgorge the funds recovered because it is now being alleged that there existed no obligation to honor that claim. See Teshuvot Radvaz 1, no. 475; Sha'ar ha-Mishpat 66:34; and Arukh ha-Shulhan, Hoshen Mishpat 66:48.
6. See R. Baruch Ber Leibowitz, Birkat Shmu'el, Baba Kamma no. 32., Cf., however, R. Iser Zalman Meltzer, Even ha-Azel, Hilchot Sekhirut 2:3, who describes the essence of the tort as failure to return the object rather than as causing damage to the object. Cf. Also R. Reuven Grozovsky, Hiddushei R. Reuven, I, Baba Metzi'a, no. 21, who formulates a novel analysis of the nature of negligence liability.

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