Submitted by the Bais Hora’ah
I borrowed my friend’s MP3 player to listen to a shiur. When I went to sleep I placed it on the floor next to my bed in the dormitory. In the morning, when the dorm counselor came in to wake me for Selichos, he didn’t see the MP3 player and stepped on it and broke it.
Q: Is the dorm counselor liable — for breaking the MP3 player — and considered forewarned concerning damages — adam muad l’olam? Am I liable for causing damage to the MP3 player indirectly –— grama?
A: The dorm counselor who stepped on the MP3 player is exempt. Generally, people are liable for inflicting damage, even if the damage resulted from an oness (circumstance beyond one’s control) (C.M. 378:1). However, liability requires some degree of negligence. Even when the actual damage resulted from an oness, a person is liable when he should have exercised greater caution. When an oness occurs in a circumstance in which there is no reason a person should have been more cautious (oness gamur), he is exempt (Rema, ibid. and 421:4). Therefore, since there was no reason for the dorm counselor to think that there was an MP3 player on the floor, he is exempt.
Those who maintain that one is liable for damages even due to a completely unexpected oness (see Shach, C.M. 378:1 and Business Weekly #326) nevertheless say that, if the damage results from the damaged party’s negligence, the mazik is exempt (Ramban, B.M. 82a). In this case, the damage resulted from the borrower’s negligence and thus the dorm counselor is exempt.
It is not considered negligent on the dorm counselor’s part for not looking where he was going. In fact, it is considered an oness gamur (C.M. 412:1) because most people do not look down at the floor to make sure that they will not step on anything (Rosh, B.K. 3:1). Additionally, people are occupied with their thoughts and as a result do not pay attention to where they are going (Meiri, B.K. 27b; Yam shel Shlomo, B.K. 5:44). Accordingly, if someone steps on something in the normal course of walking because he did not see the item on the ground, he is exempt. Since it is uncommon for most items to be placed on the ground, there is no reason for one to exercise caution to avoid damaging them, especially in a dark room (C.M. 412:2).
Accordingly, if Reuven asks Shimon to wake him and Reuven left his glasses on the floor and Shimon stepped on them, Shimon is exempt from paying. Reuven should not have placed his glasses where people could step on them (K’neh Bosem 1:124 and see Pischei Choshen, Nezikin 8:).
However, in a mikveh where it is common for people to place their glasses on their clothing or on the bench next to their clothes, if someone sits on them, the damage is not categorized as an oness gamur and he is obligated to pay (Mishpetei HaTorah 1:2:3, and see Business Weekly #346 regarding the method to appraise one’s glasses).
As far as your liability as a borrower is concerned, you must repay the owner for the broken MP3 player since a borrower is liable even in cases of oness and certainly when he was negligent (C.M. 340:1.) [Even those who maintain that one who borrows a mitzvah object is exempt from the liability of a borrower (Teshuvas HaRan 19 cited by Sma 72:21, and see Mishpetei Hachoshen, p. 414) agree that there is liability if the object is stolen or damaged due to negligence].