Question: Is a store owner liable for damages to a neighboring store from a fire that started in the first store?
Short Answer: Depending on how the fire was started, it is quite possible that the store owner will not be liable.
Explanation:
I. The Case
The Beis Din of the Rabbanut of Yerushalayim (Vol. 10, p. 442) adjudicated the following case. Two stores were separated by an open wall. The first store was a carpentry shop, while the second store was a bakery. One Shabbos morning, when there was no one in the stores, a fire broke out and destroyed both stores.
The carpenter argued that the baker was liable for the damages to his carpentry shop. First, the carpenter claimed that the fire examiner determined that the fire started in the bakery, and later spread to the carpentry shop. Second, the carpenter claimed that he typically shuts off his electricity for Shabbos, so the fire could not have started by a short circuit in the carpentry shop.
The baker argued that the carpenter was liable for the damage to his bakery. First, the baker asserted that he was in his bakery on Friday, and it smelled like something was burning. Both he and one of his workers checked and it appeared that the smell was emanating from outside the bakery. Second, the baker noted that there was no flammable material in his bakery on Friday. Third, the baker argued that he was not in any fights with anyone who could be suspected of arson, as opposed to the carpenter, who was a very argumentative person. Fourth, the baker claimed that the fire examiner determined that the fire started in the carpentry shop.
II. My Fire
Rav Avraham Dov Levin, a longtime dayan, authored an opinion. He first discussed whether a contemporary beis din has the jurisdiction to address fire damage. The full discussion of such an issue is outside the scope of this article, but Rav Levin concluded that jurisdiction was warranted, based on a ruling of the Yeshuas Yisrael.
Next, Rav Levin addressed whether a store owner (or any person) may be liable for fire damage that emanated from a fire on his property, but whose source was unknown. The Gemara (Bava Kama 22a) sets forth a machlokes between Rabbi Yochanan and Reish Lakish regarding the nature of fire with respect to damages. Rabbi Yochanan considers fire “mishum chitzo,” as if the person himself damaged; but Reish Lakish considers fire as “mishum memono,” as if the person’s cattle damaged. The Gemara (ibid, 23a) presents a ramification: whether the fire-setter is liable to pay for tzaar, ripui, sheves, and boshes, the four additional payments made only by a tortfeasor who personally damages another person, but not when the tortfeasor’s cattle damage another person.
The Gemara (ibid) likewise asks, according to Rabbi Yochanan, how can the chachamim ever exempt a fire-setter from liability for hidden objects in a field? Since fire is “mishum chitzo,” as if the person himself damaged the objects, shouldn’t the fire-setter be liable, regardless of whether he knew about the hidden objects? The Gemara answers that Rabbi Yochanan agrees that fire is “machmas gufo,” but he holds that there is an aspect of “chitzo” as well. Thus, a case where the fire-setter is exempt from liability for hidden things is where the fire began in his own field, but the fence separating his field from his friend’s field fell down and the fire-setter did not rebuild it. Thus, the fire-setter is liable only for revealed items in his friend’s field because of “memono,” but is exempt from hidden objects in his friend’s field because his “chitzo” stopped after the fire left his own field.
Rav Levin cites some Rishonim who wonder how the case of the Gemara answers the question. Based on the Gemara’s language, that a fire “befell” the fire-setter’s field, it appears that the fire was not started by the fire-setter but was from an outside source. How can this be “chitzo”? Rav Levin cites the Even HaEzel who answers that this Gemara proves that the fire is still considered “chitzo” where the fire-setter did not himself light the fire but simply did not mafkir the stones and wood in his field that is currently holding the fire. On the other hand, Rav Levin cites numerous Acharonim, including the Birkas Shmuel and Rav Yosef Shalom Elyashiv zt”l, who hold that a person is only liable for fire damage where he owns the fire.
The obvious ramification between these opinions is a case like here, where the fire emanated from one of the stores. Thus, should we know for sure which store started the fire, that owner would be liable, even though it was not “his” fire, according to the Even HaEzel. According to Rav Elyashiv, that store owner is not liable, as the fire is not “his.” Regardless, here, there is conflicting testimony as to where the fire began. Nothing may be extrapolated from these facts.
III. The Smell
Rav Levin notes that the baker did smell something burning on Friday, but found no source in his bakery. The baker cannot be held responsible for not telling the carpenter, as there is no liability for failing to prevent a loss to someone else. This is akin to failing to return a lost object, in which the potential finder is not liable.
IV. The Short Circuit
The next issue to address is whether the owner of the store where the fire started is even liable for the fire, when he was not in the store when the fire broke out due to the short circuit. Rav Levin cites the Aruch HaShulchan (Choshen Mishpat 155:2) who warns that nowadays one is responsible to properly maintain his oven in order prevent fires. It is not sufficient to merely keep the oven in a place in your house that is not near the neighbors. If he does not properly maintain his appliances, he is considered negligent.
Accordingly, Rav Levin writes that the store owner would be liable if his electric appliances were not maintained properly. If they were maintained properly, however, the owner is not liable. Rav Levin additionally refers the reader to the Pischei Choshen (N’zikin 9:2, end of n. 2), where the Pischei Choshen suggests that the owner may not be liable even if he does not maintain the appliances, as the short circuit is like a “ruach she’eino m’tzuyah.”
Rav Levin thus concludes that neither the baker nor the carpenter are liable here.
V. Another Opinion
Rav Shimshon Grossman, another dayan adjudicating this matter, also authored an opinion. After first agreeing that beis din had jurisdiction to hear this case, Rav Grossman expressed skepticism whether beis din could decide this matter based on “umdena” alone. In other words, the facts are unclear how the fire originated, which makes it hard for a beis din to rule.
Rav Grossman then notes that, according to many poskim, one is not liable for fire damage where he himself did not light the fire or do any act to encourage the fire. Further, one is not liable for fire damage where the negligence is disconnected from the actual start of the fire, such as where the wind only blew the fire a long time after the fire started.
Rav Grossman concludes that the baker is certainly not liable, as he checked for fire when he smelled something burning on Friday. This constitutes “sh’mirah p’chusah,” which is sufficient to disclaim liability if fire is “mishum memono.” The store owners are also not liable for failing to watch their flammable items that fed the fire (which was started elsewhere).
Thus, neither the baker nor the carpenter was liable for damages.
Rabbi Ephraim Glatt, Esq. is the Associate Rabbi at the Young Israel of Kew Gardens Hills, and he is a Partner at McGrail & Bensinger LLP, specializing in commercial litigation. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it..
