By the Bais Hora'ah
Q. Our upstairs neighbor’s pipe burst in the middle of the night, and by the time we awoke in the morning, water had already seeped into our ceiling and walls. The neighbors immediately shut the water supply to that pipe and called a repairman to fix it. Are they responsible to reimburse us for the cost of painting the ceiling and walls that were damaged by the water – or are they absolved because it is considered oness?
A. Although your neighbor was responsible for repairing the burst pipe (as we explained last week), he is not obligated to pay for the damage it caused, since he wasn’t negligent in causing damage to your apartment. (see Shulchan Aruch Choshen Mishpat 410:26-27).
The poskim deliberate what the halachah would be had the neighbor continued using the water after he knew that the pipe had burst, knowing that it would continue to leak into his neighbor’s property. Would he then be obligated to pay for that additional damage?
The question is whether we can obligate him to pay because his water caused the damage and generally, one is liable when his possession damages another’s property (mamon hamazik). There are several different types of damage that can be caused by a person’s possessions. The Mishnah (Bava Kama 2a) teaches us that a person is required to prevent such an eventuality in several categories: shor (an ox, which itself has several subcategories), bor (a pit), and eish (fire). The two categories that could theoretically apply here are eish and bor (see Maharsha, Bava Kama, Mahadura Basra 6a for an explanation as to why shor cannot apply). The category of eish includes any sort of damage that occurs through the combined action of a person’s property and another force (such as wind carrying one’s fire into another person’s property), and bor refers to any obstacle that would cause someone to stumble or fall. One key practical difference between the two is whether the mazik is responsible for damage to objects. The Torah specifically limits liability in the category of bor to damage caused to a living being (human or animal), but damage caused by eish will make its owner liable for damage to objects as well (Choshen Mishpat 410:21).
If a person places a stone or a knife on top of a wall, and a wind that is typical for that climate blows it off the wall and it damages someone else’s possessions, we obligate the mazik to pay under the category of eish (Choshen Mishpat 418:1). Since seeping water is on the move, it would seem to fall under the category of eish, rather than bor, which is stationary.
Upon further analysis, however, we find cases in which a person can be liable for bor even if damage was caused by something that moved. The Rosh (Bava Kama 1:1) states that if someone left a faulty wall in place and it fell and caused damage, he is liable for the damage under the category of bor, because no external force was necessary for this damage to occur; the wall simply gave way. Similarly, since there is no external force involved in the water seeping into the downstairs neighbor’s property, but rather the nature of water is that it settles to the lowest point, this case might fall under the category of bor (See Kehillas Yaakov ibid. 4 for another reason why bor would apply, not eish).
Since this is a case of bor, the mazik would not be liable for damage caused to objects or real estate (see Rashba ibid. 10a, Minchas Pittim 410:21, and Imrei Yosher 2:21).
[The only time eish might apply in cases of water damage is if the water was pumped into the neighbor’s property, rather than seeping on its own.]
But even if we would consider water damage a subcategory of eish, beis din might not be able to obligate the mazik to pay.
When the Torah obligates a person to watch his belongings to avoid damaging someone else’s possession, it does not intend to impose limits on what a person may do in his own property, even if as a consequence someone else might suffer damage. Chazal instituted certain limitations to that rule, but only in cases in which it would not prevent a person from using his own property in an ordinary fashion. To prevent any chance of water damage, we would have to outlaw any use of water in an upper floor, which the Torah did not require. Therefore, Chazal only instituted that a person may, in certain circumstances, protest his neighbor’s use if it is causing damage to his property, but do not hold the mazik liable as long as he remained in his own property.
There are some Rishonim who obligate a person whose negligence in controlling his possessions caused damage to his neighbor’s property to pay for those damages, but since many others absolve him from payment, beis din cannot award damages (ibid. 155:33). Therefore, even if your neighbor would have continued using his water after realizing his pipe had burst, beis din cannot obligate him to pay (Nesivos 155:18).
Nevertheless, as is the case in all situations of grama, although beis din cannot force the mazik to pay for water damage caused to another, if he was negligent, he is required to pay in order to avoid Heavenly judgment (see Kovetz Zechor L’Avraham v. 6, 155:3).