Q. Reuven expanded the garden around his house in the Catskills, with permission of the bungalow colony board. The landscaper he hired to do the work hit a pipe while digging, causing water to start gushing in all directions. His neighbor Shimon, realizing how much damage the water could cause to the neighboring properties, ran up the nearby hill where the water pump was located and turned off the water supply to the village. He did not know, however, that if he closed the outflow, he had to shut off the pump as well, and the pump burned out and now needs to be replaced.
Reuven is willing to pay to fix the pipe his worker broke, but he claims that he is not liable for the damage to the water pump that broke because of Shimon’s actions.
Shimon claims that he has no liability, because he didn’t know that he had to turn off the pump, and he was merely trying to save the neighborhood homes from being flooded.
The bungalow colony board says that because all the damage was caused by Reuven’s landscaper, Reuven must pay for all of the repairs.
Who is correct?
A. Before discussing the options you presented in your question, let’s discuss the liability of the landscaper, assuming he is Jewish and willing to follow halachah.
Depending on the circumstances, a professional who causes damage while doing a job he was hired for can be liable either as a mazik (one who causes damage) or as a shomer (guardian), because he was obligated to safeguard the object he was hired to improve or fix to ensure that it does not sustain damage under his watch.
In our case, the landscaper cannot be held liable as a shomer, because he was not hired to safeguard the pipe or the pump that were damaged. Shimon, too, would not be liable as a shomer, for the very same reason. Furthermore, even had one or both been considered shomrim, they still wouldn’t be liable, because shomrim are exempt from liability for damage done to karka (land) and anything connected to it (Shulchan Aruch, Choshen Mishpat 301:1; Shach 95:8).
In many cases, a professional is not liable as a mazik either, unless it was likely that the work he was doing could cause damage and it was reasonable to expect him to take precautions to prevent that. Otherwise, because he was authorized to do his work (mazik b’reshus), and he was not negligent in the manner in which he carried out his work, he is not liable (see Shu”t Avnei Nezer, Choshen Mishpat 19 and Chazon Ish, Bava Kamma 11:21).
Shimon, too, cannot be held liable as a mazik because the damage he caused to the pump was indirect (grama) and unintentional (b’shogeg). Even had the damage been direct, not a grama, since he wasn’t paid for what he did, and is considered to have acted with permission because his intention was to protect the neighbors from damage, and his action was not negligent, he is not liable (see Choshen Mishpat 306:4).
As to whether Reuven is liable, the first thing that needs to be checked is whether the bylaws of the colony address such circumstances, and, if not, whether there is a prevailing practice in similar colonies governing such cases.
We will address this sh’ailah assuming that no such precedent exists.
Reuven cannot be held liable as a mazik, because he didn’t actually inflict the damage; his worker was the one who broke the pipe.
But if the worker will not pay — either because he is not liable, as discussed above, or he will refuse to cooperate — the contemporary poskim discuss whether the liability reverts to Reuven. Some say that he is not liable for damage caused by his worker (Pis’chei Choshen, Nezikin 1:44). Others write that although he isn’t actually a mazik, since he needed permission from his neighbors to expand his garden because they are partners in the common area he was subsuming for his garden, the presumption is that they granted permission only on condition that if he caused any damage to the common property, he would repair it (Mishpat Hamazik p. 432). Reuven obligated himself to this condition under the halachic rubric of areiv (guarantor); in exchange for the benefit of expanding his garden, he accepts upon himself liability for any damage caused in the process.
Reuven is certainly liable if he hired a landscaper who is not licensed and was uninsured, so that he now has no legal recourse in civil court (see Nesivos 176:51; see Shach 176:57). Therefore, since the HOA board had to grant him permission to expand his garden, he is liable for the damages.
However, this is only true for the pipe which was damaged by his worker. But the pump was not damaged due to Reuven’s work on his garden, so he cannot be held liable for it. The HOA board will therefore have to absorb the cost of the new pump.
