Rabbi Meir Orlian
“Our weeds are getting totally out of hand,” Mr. Mazer said to Moish, the gardener. “I’d like you to come cut them.”
Moish drove over to the Mazer’s house and unloaded his professional weed whacker, which looked like a long pipe with a rotating wire filament at the end. He revved the engine and the machine roared to life. “Whirr…” Moish made his way around the yard, cutting the weeds as he went.
He turned his attention to the brush near the house; the thick weeds obscured the side of the house completely. Moish moved over the weeds with his weed whacker. Clump by clump, the thick green weeds yielded to the force of the whirling wire with a steady “chut, chut, chut” sound.
As Moish rounded the corner of the house, the “chut, chut” suddenly became “crack!”
“What was that?” exclaimed Moish with alarm. He pushed aside the clump of weeds he was working on.
“I don’t believe it!” he moaned. Affixed to the side of the house, covered by the weeds, was an electric wire leading to an outside outlet. It had gotten slashed by the weed whacker.
Moish knocked on the door. “I apologize,” he said to Mr. Mazer, “but there was an electric wire under the brush that got sliced by the weed whacker. It was completely concealed by the weeds, so I didn’t see it.”
“I’ll have to get an electrician to fix the wire,” said Mr. Mazer. “Did this ever happen to you before?”
“No,” said Moish. “I’m generally careful, but this wire was completely covered.”
“You still have to watch what you’re doing, especially when working near the house,” said Mr. Mazer. “You damaged my property, and you should pay for the repair.”
“It’s not like I just came and damaged property,” argued Moish. “You did ask me to cut the weeds, and I can’t be expected to look under every clump before I cut. I’d be here all afternoon!”
“But you do have to be more careful near the house,” replied Mr. Mazer. “I’ll see what the electrician charges and then we’ll talk.”
The local electrician fixed the wire.
“That will be $75,” he told Mr. Mazer.
Mr. Mazer called Moish. “The electrician charged $75 for the repair,” he said.
“If you want me to pay that,” said Moish, “that’s my whole salary for the job I did. It’s simply not fair!”
“Nor is it fair that I should have to pay double,” said Mr. Mazer. “Let’s speak with Rabbi Tzedek.”
Rabbi Tzedek ruled: “In principle, the gardener is liable unless it was not feasible for him to notice the electric wire or if the owner was remiss in not alerting him to its existence. Since this is difficult to ascertain, it is best to compromise.”
Rabbi Tzedek then explained, “A person is generally liable for any damage that he does, even if unintended and not his fault. However, Tosfos (B.K. 27b s.v. U’shmuel) explains that the person is only liable if he carries an element of blame, even if not negligent (oness k’ein aveida). A paid worker carries additional liability if he could have prevented the loss (oness k’ein geneiva). Even a paid worker, though, is not liable for damage beyond his control (C.M. 306:4; 378:11).
Ramban (B.M. 82b) maintains that one who damages is liable regardless of the circumstances, unless the owner was remiss in allowing the damage. However, even he concedes that a worker – who acted upon instruction – is not liable for circumstances beyond his control.
“Similarly, the Mishna (B.K. 98b) teaches that if a construction worker was hired to dismantle (not demolish) a stone wall, and while dismantling one end of the wall, the other end collapsed and usable stones shattered or caused damage, he is exempt (C.M. 384:3). One explanation is that this was an accident beyond his control (Meiri B.K. 98b).
“In your case, the gardener damaged the electric line, albeit unintentionally. Since he is being paid, he is liable so long as it was feasible for him to notice the electric wire, even if he bears only minimal blame. He is exempt only if the accident was beyond his control or if the owner was negligent in not alerting him (see Pischei Choshen, Sechirus 7 nt. 56-57).
“Since circumstances are variable and it is difficult to ascertain whether it was feasible for the gardener to have noticed the wire, and whether the owner should have warned him, it is best to compromise.”