This past Monday, travel writer Tarah Chieffi posted a fascinating article that leads to the halachic discussion to follow.
She was on a Delta flight returning from a trip to Orlando and decided to do some work on her 15-inch MacBook Pro. The passenger in front of her chose to recline the seat back at breakneck speed, which crushed her laptop screen!
The flight attendant told her he had never seen anything like this happen before and went to speak with the flight leader to determine the best way to handle the situation. When he returned, he was only able to offer her 1,000 Delta SkyMiles—amounting to a whopping $15.
When Chieffi arrived in Atlanta, she spoke to a Delta rep who was authorized to give $100 as compensation for the damaged property, but that offer was later rescinded. Delta does not assume responsibility for unchecked items that are damaged in flight unless they are given to Delta personnel for storage.
What is the halachah? If that had happened on El Al, a Jewish-owned airline, and all the parties were Jewish, how would a beis din rule? Is Tarah out of luck? Is Reclining Passenger X obligated? Is the airline obligated? Also, which of the four categories of damage in the Mishnah in Bava Kama is under discussion here?
Let’s take a look at the relevant Talmudic passage. The Gemara in Bava Kama 28b informs us of Rabbah’s position that even in a case of oness—where there was no fault (pure accident) on the part of the damager—it is still possible to find the one who did the damage liable. Abaye, however, disagrees and states the idea of “Oness d’rachmana patrei,” the Torah exempts cases of “pure accident.”
There is a concept called “nitkal lav poshei’a” discussed in the Talmud (Bava Kamma 29a) as to whether one who trips or stumbles is considered at fault or faultless. There is also the concept of “Adam mu’ad l’olam,” that a person who damages is always considered at fault. The interplay of these various concepts is often at the core of halachic conclusions.
Because it is airline policy that a person is allowed to recline his or her seat if the plane is not taking off or landing, and there is no requirement to look behind him, perhaps this case can be analogous to a “complete accident” or “oness gamur.”
A Three-Way Debate
There are three opinions as to “complete accident.”
The Ba’al HaMaor (B.K. p. 19 in the Rif pages) writes that if we hold that “one who trips is not considered negligent” then the damage is categorized not as “adam ha’mazik,” a person who damaged, but rather “bor,” it is likened to a pit.
The Baalei HaTosfos (B.K. 27b “u’Shmuel”) and the Rosh rule that a person who damages is not liable on a complete accident.
The Ramban in Bava Metzia 82b disagrees with Tosfos and rules that a person is liable for all damage that he causes based upon the principle of “adam mu’ad l’olam.” The Gemara’s case (B.K. 26b) of the liability of a person who stood up and a stone was on his lap and it caused damage is a case in point. Another is when a super-strong gust of wind blew someone off the roof and he did damage (27a). The only exception is when the person brought the damage upon himself by placing himself or his item in harm’s way immediately beforehand. He also disagrees (see Oz v’Hadar B.K. Milchamos p. 33 “amar ha’kosev”) with the Ba’al HaMaor and categorizes “one who trips is not negligent” as the category of “aish, fire.”
How To Understand “The Torah Exempts Cases Of Pure Accident”
As an aside, there is a debate among the gedolei roshei yeshiva as to how to understand the Torah’s exact mechanism for exemption of accidents. Rav Chaim Soloveitchik, zt’l, (Siman 228) examines whether it is actually an exemption or it is that the action of damage is not attributed to him. Rav Elchonon Wasserman, zt’l, (Kesuvos Siman 5) writes that the action is not attributed to him. Rav Isser Zalman Meltzer, zt’l, (Evel HaAzel Ishus 4:1) writes likewise. However, according to Rav Chaim, it works through the mechanism of an actual exemption, but only to the limit of “What could he have done?”
We can perhaps inquire as to the nature of the airline’s tacit permission to allow a passenger to recline; is it an exemption, or is it that the action is not attributed to him? If the former, then perhaps one should look before he reclines.
Perhaps in this case it was Tarah’s fault. Maybe the case can be likened to the victim placing the item in harm’s way, where the victim would bear responsibility.
Conclusion
There is a concept in halachah (see E.H. Beis Shmuel 159:56) that the person who is muchzak, or holding onto the item, can say, “I hold like the position of Posek X—even if Posek X is a minority opinion—as long as it does not go against the Shulchan Aruch or established halachah. This is called, “Kim li k’hani poskim.”
The Shulchan Aruch (C.M. 378:1) writes that as a general rule, a person who damages, accident or no accident, is liable for all damages. It is unclear as to the position of the Rema, however. The Shach (C.M. 378:1) reads the Rema as writing that the Rema’s opinion is the same as that of the Ramban and Shulchan Aruch, while the Vilna Gaon (C.M. 378:3) reads that the Rema rules like Tosfos and the Rosh.
Passenger X can say that he holds like the Vilna Gaon’s reading of the Rema against that of the Shach and thereby exempt himself from payment. He can do this through the use of “kim li k’hani poskim.” Since this is true, Tarah would have to pay for her own laptop screen repair.
The author can be reached at Yairhoffman2@gmail.com. Read more of Rabbi Hoffman’s articles at 5TJT.com.
