By Rabbi Yair Hoffman for 5tjt.com

This past Monday, Tarah Cheiffi, a travel writer, posted a fascinating article.   She was returning from a trip to Orlando and decided to do some work on her Delta flight with 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 offered to lavish her with 1,000 Delta SkyMiles – an offer amounting to a whopping $15.

When she arrived at Atlanta, the Delta rep said he was authorized to give as compensation for the damaged property  $100 – which was later rescinded.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.

Our question, however, is:  What is the halacha?  What if it was El Al, a Jewish owned airline and all parties were Jewish – how would a Bais Din rule?  Is Tarah out of luck?  Is Reclining Passenger X obligated?  Or is the airline obligated?  Also, which of the four categories of damage in the Mishna in Bava Kamma is under discussion here?

THE MISHNA

The first Mishnah in tractate Bava Kamma identifies the four main categories of damage (“avos nezikin”): Ox (shor) or goring, Pit (bor) if someone dug or uncovered a pit, Mav’eh (meaning either damages caused by man, or those caused by an animal’s feeding), or Burning (aish)

Let’s take a look, however, at the relevant Talmudic passage.  The Gemorah in Bava Kamma 28b informs us of Rabbah’s position that even in a case of Onais – 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 that the idea of “Onais d’rachmana patrei” the Torah exempts cases of “pure accident.”

CONCEPTS TO KNOW

There is a concept called “Nitkal lav Poshaya” 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 – a person who damages is always considered at fault.  The interplay of these various concepts may be the core of this case’s halachic conclusion.

AIRLINE POLICY

Because it is airline policy, and the general norm, that a person is allowed to recline his or her seat back whenever the plane is not taking off or landing, and there is no requirement to look behind you – perhaps this case can be analogous to a “complete accident” or “onais gamur.”

A  THREE-WAY DEBATE

There are three opinions as to “complete accident.”

The Baal haMaor (BK 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 HaMazik” a person who damaged, but rather “Bor” – it is likened to a pit.

The Baalei HaTosfos (BK 27b “uShmuel”) and the Rosh rule that a person who damages is not liable on a complete accident.

The Ramban in Bava Metziah 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 Gemorah’s case (BK 26b) of the liability of a person who stood up and a stone was on his lap and it damaged is a case in point. Another is when a super-strong gust of wind blew him 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 BK Milchamos p. 33 “amar hakosev”) with the Baal 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 HaRoshei 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 is it that the action of damage is not attributed to him.  Rav Elchonon Wasserman zt”l and hy”d (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 people to recline – is it an exemption, or is it that the action is not attributed to him?  If the former – then perhaps he should look before he reclines.

ANOTHER FACTOR

Perhaps in our 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 halacha (See EH Bais Shmuel 159:56) that the person who is muchzak, or holding onto the item can say, “I hold like the position of Posaik X – even if Posaik X is a minority opinion – as long as it does not go against the Shulchan Aruch or established halacha.  In this case, the item is the money.  This is called, “Kim li k’hani Poskim – I know that the halacha is like this opinion of the great decisors.”

The Shulchan Aruch (CM 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 Ramah, however.  The Shach (CM 378:1) reads the Ramah as writing that the Ramah’s opinion is the same as that of the Ramban, Ramah and Shulchan Aruch, while the Vilna Gaon (CM 378:3) reads the Ramah rules like Tosfos and the Rosh.

Passenger X can say that he holds like the Vilna Gaon’s reading of the Ramah against that of the Shach and thereby exempt himself from payment. He can do this through the use of Kim Li.  Since this is true, Tarah would have to pay for her own laptop screen repair.

Rav Hershel Ausch shlita, one of the leading Poskim in Boro Park and Williamsburg agreed with this conclusion that “Passenger X” is exempt from payment.  It should be noted that one Posaik from Bnei Brak who specializes in Choshain Mishpat wrote me that regardless of the permission to put back your seat, the concept of Odom Mu’ad L’olam still applies.  He finds passenger X liable to pay.

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