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Are first responders responsible to pay for damages?
By Rav Shmuel Y. Yoffe, Author of Sefer Shevile Tzion
Rushing to an Emergency
There are dozens of Hatzalah chapters throughout the United States, with hundreds of volunteers who devote themselves to the great Mitzvah of saving lives. Hatzalah personnel are trained to respond to calls quickly and effectively, oftentimes, in a matter of minutes.
It is understood that haste is imperative for emergency medical services. However, who is responsible for any damages that may occur during the emergency response? Once the emergency is over, who is responsible to pay for any damages caused to the property?
Damaged Equipment
In a recent case brought before a Bet Din, one man incurred damages on a borrowed item, during the process of saving his child’s life.
Reuven had a son with breathing difficulties. When his son began wheezing on Shabbat morning, Reuven went to his neighbors to borrow a nebulizer, a machine which would convert the child’s medicine into a fine mist for easy inhalation. Although the machine is Muktzeh on Shabbat and it was necessary to transgress carrying in the public domain (one of the 39 forbidden Melachot on Shabbat) this was a matter of Pikuah Nefesh.
As Reuven was dragging the nebulizer across the street to his home, the machine was damaged. He was still able to use it and give his child the life-saving medicine. Once the emergency was over, Reuven asked the Bet Din whether he responsible to pay for the damages to the nebulizer or not?
Liability for the Greater Sin
The Gemara[1] discusses one who does an act which simultaneously constitutes a transgression of Shabbat and another Avera. Rav Idi Bar Avin brings the example of a person who shoots an arrow four Amot into a public domain on Shabbos, while the arrow rips his friend’s garment – mid-flight. This falls under the category of “Kim Le B’drabba Mine” – we hold one liable only for the greater transgression. While a person is usually obligated to pay for ripping his friend’s garment, in this case, the damage was part of a larger action of Hillul Shabbat, which is a capital offense. Therefore, we would only hold him accountable for the Hillul Shabbat, and he would be exempt from paying for the garment.
Two Sins in One Action?
The Gemara discusses an apparent contradiction with regards to a case in which someone steals Helev (the fats of an animal which are forbidden to eat, punishable by Karet) from his friend and then eats it. Rav Hisda’s opinion is, that despite the severity of the offense of eating Helev, nevertheless, the thief must pay the owner for stealing it.
The Gemara questions why this should be different than the person who damages his friend’s clothing while being Mehallel Shabbat – in which he is exempt from paying the damage?
The Gemara offers two explanations. The first explanation is that for the man who threw the arrow, it was impossible for to do one sin without the other. There is no way he could have ripped the garment without being Mehallel Shabbat. However, the man who ate the stolen Helev, could have – technically – eaten it straight out of the owner’s property, without actually committing the act of stealing it. Therefore, the man who stole the Helev and then ate it is obligated to pay for the damages.
Another explanation is that the man who threw the arrow could not recall his action in the middle. Thus, with one throw, he was both Mehallel Shabbat and damaged property. Therefore, he is subject to the exemption of “Kim Le B’drabba Mine” – being liable only for the greater offense. However, the sinner who ate the Helev could technically stop in middle of the Averah, and therefore, his two transgressions are not considered to have been committed in one act, and he is liable for both.
In Reuven’s case, he was being Mehallel Shabbat while he was causing damage to the nebulizer. Dragging the machine across the street constitutes an act of Hillul Shabbat, which would normally be a capital offense. However, being that Reuven was doing so to save a life, which is permitted, we must inquire whether the rule of “Kim Le B’drabba Mine” applies in such a scenario as well.
No Capital Punishment
Further in the aforementioned Gemara[2], the Gemara quotes the Tana D’ve Hizkiya who asserts the fundamental concept that even if one is desecrates the Shabbat inadvertently, in which case he would not be Hayav Mita, nevertheless, he is subject to the exemption of “Kim Le B’drabba Mine” and is not liable for damages he causes through such an act.
There is extensive discussion if this rule also applies to an ‘Ones – one who is forced to be desecrate the Shabbat or some other capital offense. Although generally, an ‘Ones is regarded even more leniently than one who transgresses an Avera by mistake (“Shogeg”), because the act is committed entirely against his will; with regards to “Kim Le B’drabba Mine”, many Rishonim[3] seem to say that an ‘Ones is treated just like a Shogeg, and is exempt from damages. Others maintain[4] that, unlike a Shogeg, an ‘Ones would be obligated to pay for damages that occur while he is forced into doing the Avera.
Classifying a Life-Saving Hillul Shabbat
Reuven’s example of Hillul Shabbat is further complicated by the fact that he was doing so for the purpose of Pikuah Nefesh. It is understood that the laws of Shabbos are suspended for the sake of saving a life. There is a famous dispute among the Rishonim whether Pikuah Nefesh is classified as a “Hutra” – which means it that is a completely permissible act on Shabbat, or whether it is classified as a “Dehuya” – which means that it is still regarded as a prohibition, which is merely pushed aside for the sake of saving someone’s life.
Another facet of this question is that Reuven’s Hillul Shabbat was a “Melacha Sh’eina Tzricha L’Gufa” – an act not needed for its sake – since Reuven’s Hillul Shabbat was only as a byproduct of his action and not the main purpose. It may also be considered to be a “Mekalkel” – a destructive act. Both of these types of actions do not fall under the parameters of a full-fledged transgression of Hillul Shabbat (the Halachic implications of this are beyond the scope of this article). The Gemara[5] discusses whether such actions are considered a capital offense – for the sake of an exemption from paying damages. According to most opinions such actions would not be subject to the exemption of “Kim Le B’drabba Mine”, whereas according to Rashi, a “Mekalkel” would still exempt from paying damages.
It would seem that Pikuah Nefesh on Shabbat is even less likely to be classified as an “offense” than a Mekalkel (even if we were to still consider it a prohibition that is pushed aside) with regards to the exemption of “Kim Le B’drabba Mine”.
The Final Ruling
If we were to compare Reuven’s scenario to the examples in the Gemara, it would seem that carrying the nebulizer on Shabbos is most similar to the man who ate the Helev. In each of these cases, he could have stopped mid-action. This would mean that Reuven does not fall under the category of “Kim Le B’drabba Mine” and must therefore pay for damages.
However, the Gemara[6] writes that the Hachamim instituted that a person who is involved with Pikuah Nefesh is exempt from paying damages. Life-saving actions must be done quickly, and therefore we do not want anyone to hesitate out of fear of being liable for damages.[7]
It seems this rule would apply in Reuven’s case as well. Since he was involved in a life-saving effort, he would be exempt from paying for any damages that may occur.
Sources:
[1] כתובות ל”א ע”א
[2] שם דף ל”ה
[3] רש”י, תוס’ ורי”ף
[4] שטמ”ק, רעק”א ואמת ליעקב להגר”י קמינצקי זצ”ל כתובות ל’
[5] ב”ק דף ל”ה
[6] סנהדרין דף ע”ד
[7] נתה”מ סי’ עב