Tuesday, January 13, 2009

Tuesday's Thoughts on the Daf - Bava Kamma 16

Bava Kamma 16 continues a discussion which commenced on 15b which dealt with the types of creatures who are Tam or Mu'ad and the damage each are responsible for causing. In reviewing this sugya, it struck me how different the Talmudic view of tort law is from NY tort law. In this post I would like to just deal with one example.

In discussing the mishna on 15b, the gemara mentioned the view of R' Tarfon who had said that if the ox caused abnormal damage while on the injured party's property, the owner must pay full nezek. On 16a, the gemara extrapolates this and learns that if the ox caused normal damage while in the public domain (i.e. by eating the injured party's produce which he had left in the public domain) the owner is not responsible to pay any damage. A similar concept is taught by Shmuel on 16b where he explains that a lion which tears flesh from a live animal in the public domain does not cause its owner to be liable because this is like shein - this is what an animal normally eats in the public domain.

My problem with conceptualizing these rules is that they are contrary to NY tort law, and given my twelve years of legal practice, they are anything but logical to me. Under NY law if my animal enters another's property and eats their animal, of course its my responsibility. However, if my animal eats another person's produce which the person has left in a public area, NY law does not absolve me of liability. Instead, the finder of fact will apportion fault and determine to what degree the act of leaving the produce out in the public area has caused the injury. As a result, the injured party will not recover the full value of his property, but unlike the limud in the gemara, I will not be completely off the hook.

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