Bava Kamma, Chapter 3, Mishnah 1. This Mishnah addresses the law of Bor (a pit) - creating a hazard in the public domain. In the previous Mishnah, we learned that a person is always responsible for his actions and must take care, and even if an unavoidable accident occurs, he bears responsibility for what he did. Our Mishnah expands on this principle and applies it to additional situations.
"Hameini'ach es kado birshus harabim" - One who leaves his jug in the public domain:
The Mishnah opens: "Hameini'ach es kado birshus harabim, uva acher veniskal bah veshavrah - patur" - One who leaves his jug in the public domain, and another comes along and stumbles on it and breaks it, he is exempt. Reuven left his jug in the street, Shimon passed by, stumbled on the jug, and broke it. Seemingly, in light of the rule that a person is always considered forewarned, there would be reason to hold Shimon liable: he did not look where he was going, and he actually broke Reuven's jug. Nevertheless, the Mishnah rules that Shimon is exempt from paying.
This exemption stems from a combination of two factors:
On Reuven's part: He had no right whatsoever to leave the jug in the middle of the public domain.
On Shimon's part: Although this does not permit him to break his fellow's belongings, he is not expected to look at the ground upon which he is walking.
The guiding principle here is that "ein darko shel adam lihyos misbonen bedrachim" - meaning, it is not the way of a person to look at the ground upon which he is walking. People look ahead and are busy with their affairs, and they do not expect to find breakable items on the ground. Therefore, someone who breaks an object lying on the ground is completely exempt.
This is comparable to a sleeping person next to whom a nightlight was placed, and he turned over in his sleep and smashed it. He is exempt, as he had no reason to expect a lamp in the place where he lay; he went to sleep, and the one who placed it is the one who acted improperly. The same is true in our Mishnah: once Reuven left the jug in the public domain, Shimon has no reason to look around, and the halachah does not expect him to inspect the ground in case something of value is lying there. On the contrary, Reuven, by leaving the jug, is the negligent one - and therefore Shimon is completely exempt.
"Ve'im huzak bah, baal hechavis chayav benizko" - And if he was injured by it, the owner of the barrel is liable for his damage:
If Shimon himself was injured by the barrel that Reuven left in the public domain, Reuven is obligated to pay for his damages, since he is the one who created a Bor - a hazard in the public domain. A person has no right whatsoever to leave his barrel in the street, and there is no practical difference whether he declared it ownerless (hefker) or not: even if he declared it ownerless, the Torah establishes his status as the owner of the pit and returns ownership to him, and he remains responsible in any case. Once he created a hazard in the public domain and damage was caused to a passerby, it is incumbent upon him to pay for the full damage.
The dispute underlying the continuation of the Mishnah: Is one who stumbles negligent or not negligent:
The continuation of the Mishnah is like a new paragraph, and it is based on a dispute that is not explicit in the text of the Mishnah, but one must be familiar with it: the question of whether "one who stumbles is negligent" or "one who stumbles is not negligent". One must distinguish between "niskal" with the Hebrew letter tav, which means to stumble and fall, and "niskal" with a samech - from the root for stoning, like "shor haniskal" (the stoned ox), which we already discussed in Kiddushin Chapter 2 and will return to later in Bava Kamma.
The question is, if an accident happened to a person and he stumbled with his two feet and fell, is he considered negligent, meaning, is he considered to have been careless and thus bears responsibility for what happened as a result. Granted, if he stumbled and fell on his fellow with his body, he is certainly liable based on the rule that "a person is always considered forewarned"; but the question is regarding the indirect results: do we say that he is fully responsible for them, or do we say that "one who stumbles is not negligent" - he did not intend it, he did not fall maliciously but in an accident, and therefore he is not responsible for what happens afterward.
The case before us: "Nishberah kado birshut harabbim" - if his jug was broken in the public domain. Levi is walking down the street, trips over his feet or his shoelace and falls, and his water-filled jug smashes onto the sidewalk. Is Levi responsible for the consequences?
The view of the Tanna Kamma (Rabbi Meir): "Vehuchlak echad bamayim, o shelakah bacharseha - chayav" - and someone slipped in the water, or was injured by its shards, he is liable. If Yehudah walked behind him and slipped in the spilled water, or was injured by the shards of the broken jug, Levi is liable. Even though this happened accidentally, "one who trips is considered negligent," and it is as if he intentionally smashed the jug on the ground. He created a hazard in the public domain, and anyone injured by it falls under the laws of a pit in the public domain, making the one who caused the damage fully liable. Our Mishnah is an anonymous Mishnah, and although it is not explicitly stated, this is the view of Rabbi Meir.
The view of Rabbi Yehudah: One who trips is not considered negligent - we do not attribute negligence to a person who had an accident. He was not careless in his actions, and therefore, since this is not direct damage caused by his body but rather the creation of a hazard in the public domain, we must consider whether he is truly responsible.
After all, if the hazard was created under circumstances beyond a person's control, such as a tornado carrying the jug from the courtyard and smashing it in the middle of the street, and a person slipped in the water, the owner is exempt, since he did nothing wrong and was not the one who placed the jug there. Although a pit and a hazard were created, it is not his fault. And this is the view of Rabbi Yehudah: One who trips is not negligent, and this was not his intention but rather an unavoidable accident, and therefore the broken jug might not be his responsibility.
"Rabbi Yehudah omer: Bemitkaven - chayav" - Rabbi Yehudah says: If he intended, he is liable. If he intends to retain ownership of the jug and the water, then the jug is his, and a person is not permitted to leave his broken jug in the public domain. Therefore, it is incumbent upon him to remove the hazard, and if he did not do so and a person was injured, he is obligated to pay for his damages.
And even this liability is based on the assumption that he was able to remove the hazard he caused. Rabbi Yehudah also concedes that he must have at least enough time to pick up the shards. If he tripped, broke the water jug, and a moment later, before he could grasp what happened, the person walking behind him slipped and fell into them, he is exempt, since he could not fetch a squeegee with such speed. However, if he had sufficient time to remove the hazard, and nevertheless chose to keep it in his ownership because he intends to acquire the jug or the water, he is liable.
"Ve'eino mitkaven - patur" - and if he did not intend, he is exempt. If he does not seek to retain ownership of the jug, but rather declares it ownerless: "I did not intend to break it, and from now on I declare it ownerless - anyone who wants the earthenware shards or the water, let him come and take it." Once he declares it ownerless, the item is not his, and even though there is a hazard in the public domain, he is not responsible for it, since he tripped, and this was an accident, and one who trips is not considered negligent.
It turns out, according to the view of Rabbi Yehudah, that if an unavoidable accident happened to a person and his object broke, and he does not maintain his ownership but rather declares the shards ownerless, the pit is no longer his and is not his responsibility, at least according to the laws of man and in an earthly court. If another person is injured, he cannot sue him for compensation.
In summary: The halachah follows Rabbi Yehudah, that one who trips is not considered negligent. A person who had an accident and stumbled over his feet is not considered negligent, and therefore he is not liable if he declared his broken property ownerless and it remained in the public domain, and if someone is injured, he is exempt according to the laws of man. But according to the laws of Heaven, in the Heavenly court, one who brings about harm to another and does not remove the hazard he left behind will eventually have to answer for it. Therefore, even in such a situation, a person must do everything in his power to ensure that no one will be injured by the broken shards. Even though they broke through no fault of his own but because he slipped, once it is in his power to remove them, he must remove the hazard from the public domain.