Understanding The Gravity Of The Situation

The Chasam Sofer says that studying Seder Nezikin can save a person from coming to harm, both physical and financial. If someone, chas v’shalom, has a harsh heavenly decree against him, that decree can be fulfilled by just learning the laws of damages, instead of actually coming to harm. Studying Seder Nezikin can therefore be a powerful source of salvation for Klal Yisrael. It is therefore fortunate that at a time when Klal Yisrael needs salvation, we are studying Bava Kama, the first maseches of Nezikin. Hashem should send us yeshuos bimheirah.

The following story has been making the rounds for quite some time. At the 1994 annual awards dinner of the American Association for Forensic Sciences, AAFS president Don Harper Mills astounded his audience in San Diego with the legal complications of a bizarre death. Here is the story . . .

On March 23, the medical examiner viewed the body of Ronald Opus and concluded that he had died from a wound to the head caused by a shotgun blast. Investigation to that point had revealed that the decedent had jumped from the top of a ten-story building with the intent to commit suicide. (He left a note indicating his despondency.) As he passed the ninth floor on the way down, his life was interrupted by a shotgun blast through a window, killing him instantly. Neither the shooter nor the decedent was aware that a safety net had been erected at the eighth-floor level to protect some window washers, and that the decedent would not have been able to complete his intent to commit suicide because of this.

Ordinarily, if a person set into motion events with suicidal intent, the resultant death would be deemed suicide even though the mechanism might not be what he intended. That he was shot on the way to certain death nine stories below probably would not change his mode of death from suicide to homicide, but the fact that his suicidal intent would not have been achieved due to the safety net caused the medical examiner to feel that he had homicide on his hands.

The story continues that the shooter thought that the gun was not loaded when he pulled the trigger. It turned out that the decedent knew that the shooter might play with the gun and loaded it with ammunition, unbeknownst to the shooter. Since the jumper was ultimately responsible for the bullets that killed him, the coroner ruled the death a suicide.

The preceding story was widely circulated, but it is a complete fabrication. (Though Don Harper Mills did in fact present this story to the American Academy of Forensic Sciences to illustrate how different facts in a case can alter a coroner’s determination.)

What’s interesting is the first part of the story and how it relates to the daf. The Gemara (Bava Kama 17b) says that if an object is thrown from a roof but someone hits it with a stick in mid-flight, breaking it before it lands, Rabbah says the hitter is exempt from paying restitution to the owner. Rabbah reasons that the hitter broke an object that was already halachically broken. True, it still is physically intact, but since it is destined to break, it is already considered “broken.” And one cannot be obligated to pay restitution for damage to an already broken object!

It would seem that the person who threw the item off the roof is the one who is responsible for breaking it and should be obligated to pay. Indeed Rashi (17b) says that this is the case. (Rashi offers variant opinions in different places, and the commentators explain why.) In fact, that is the very reason the Gemara mentioned Rabbah’s statement. The Gemara is trying to prove the concept of basar mei’ikara azlinan— the determination of damages goes according to the beginning [of events leading up to the damage]. When an object was set in motion to be damaged, we consider it damaged from the time the event starts. The Gemara is trying to prove that if an animal kicks an object, it is considered broken from the time it is kicked, as a corollary of the case of a person who throws an object.

The upshot is that if someone tosses a crystal vase, for example, from a rooftop, the vase is considered “broken” from the time it is thrown. If someone else then smashes it with a baseball bat before it hits the ground, the batter has smashed a vase that was already halachically busted. However, Tosfos raise the following point. What if instead of throwing the vase itself, a brick was thrown at a glass vase? Would the vase be considered broken from the time the brick was launched?

Tosfos prove from the Gemara that in this last case, the vase would not be considered broken until the brick actually hit it. If a rock was thrown at a window, the window would not be considered broken until the rock actually shattered it. Consequently, if someone smashed the window before the rock hit it, he would be obligated to pay full restitution to the owner. Tosfos say it is a sevara peshutah— simple reasoning—to differentiate between the two cases of throwing the vase itself and throwing something at the vase. It is so “simple” that commentators have spent the last few hundred years trying to figure out what the reasoning is! (This is clear proof of niskatnu ha’doros.)

Many meforshim (Talmid HaRashba, Bach, et al.) offer the following explanation: An object cannot have a change in status if nothing was done to it. The kitchen window is the same before the ball was thrown and after the ball was thrown (but before contact). How can it be considered broken when nothing about the window has changed? However, in the case of the vase being tossed from the roof, a change was made to the vase itself. It was put into motion on a destructive course. True, it is currently still intact, but it’s flying towards the ground. Since there was something done to the vase itself, it can have a halachic status change and can be considered broken. (Do not try to understand this as pure logic. According to these meforshim, in both cases the odds of the window breaking and the vase breaking are 100%. But Torah sevara tells us to differentiate between the two cases.)

Now we will see whether you truly understand this Tosfos. The pasuk (Esther 6:12) says that after Haman led Mordechai through the streets, he went to his house “aveil va’chaphui rosh.” The Gemara in Megillah explains that Haman’s daughter thought that her father was riding on the horse and that Mordechai was leading him. She poured refuse on top of the person leading the horse. However, Haman looked up, and his daughter realized her mistake and jumped from the roof. The pasuk is referring to this when it says “aveil,” mourning; Haman was mourning the loss of his daughter. “Chaphui rosh” means his head was covered in refuse.

However, the events are out of order. The pasuk should have said, “chaphui rosh va’aveil.” After all, first the refuse hit Haman’s head and only afterwards did his daughter hit the ground and die. The answer is that when an object is thrown at something, the target (such as the window) is not considered broken until it actually gets hit. However, when a fragile object is thrown, it is considered damaged right away. When Haman’s daughter jumped from the roof to harm herself, she was halachically considered dead as soon as she left the roof. However, Haman himself was not considered hit until the refuse actually reached him. According to this p’shat, you would have to say that Haman’s daughter realized her mistake while the refuse had not yet reached her father and that she still had time to fall (or jump). This vort on the Megillah is said in the name of the Rogochover Gaon. ™