May these words of Torah serve as a merit le’iluy nishmat Menachem Mendel Ben Harav Yoel David Balk a”h.
This week we learned Bava Kama 60. These are some highlights.
Bava Kama 60: He left his loaded gun in the classroom and a child fired it and damaged another boy. Did the adult have to pay?
A question: A teacher also served as the head of security for a school. He was negligent. He left his loaded gun on his classroom desk and left the room. One of the young children took the gun, played with it, pulled the trigger and a bullet discharged and damaged another child. Did the owner of the gun have to pay for the damage?
Rav Spitz in his book Mishpatei Torah ruled that the teacher did not have to pay.
He pointed out that based on lessons early in the tractate we might have thought that he would be liable to pay. On Daf 19, the Gemara taught that if a person leaves a string out and a chicken gets entangled in the string, with which it then damages, the owner of the string is liable. He is considered a person who lit a fire and the fire then spread. His leaving the string in a place where it was likely that a chicken would take it and then move it is akin to lighting a fire with a flame large enough that a normal wind would spread it to his neighbor’s field. The one who lit the fire should have known that a normal wind would come. He is therefore responsible for the damage wrought by the wind. One who leaves out a string near chickens, also, was aware that the fowl would likely get entangled in the string and move it to a place where it would damage. The Gemara also taught that one who placed a stone on a roof, in a location where a normal wind would bring it down to the street, is liable if a normal wind brought the stone down to the street and people were damaged. Perhaps, leaving a gun in a room of children is like leaving a string or a stone in the presence of forces that would likely damage with them. The person who left the gun on the desk should be liable for the damage that the gun caused.
Our Gemara, however, is the source for the ruling that the teacher is exempt from paying for damages. Tosfot explains on our page, that in the case of the string and the stone, the damager, it was created by the person who put the string and stone in place. The wind and chicken merely moved the damager. If wind would create the damager, there would be no liability. For example, if someone gave a coal to a child and the child then fanned the coal into a flame, the owner of the coal would not be liable to pay. He gave an object that was not a damager to a child. The child created the damager. The owner of the coal would not be liable. If someone gave a child matches, and the child struck the matches into flames and then threw them onto the papers of a neighbor, the owner of the matches would not have liability. The owner of the matches had not created a damager; someone else created the damager.
A gun itself is not a damager. A fired bullet can damage. The child who pulled the trigger and fired the bullet created the damager. The teacher was negligent. However, the negligence was not with a mazik. He was careless with materials that could be turned into a damager. He would be exempt under the laws of man, although he would be morally obligated to pay.
Drastic Times Call for Drastic Measures
A Baraita in our Gemara taught about times of danger. “If there is a plague in the city, a person should not walk in the middle of the street. For the angel of death will be walking in the middle of the street during times of danger. If there is peace in the city one should not walk along the edges of the street. In times of peace, the angel of death hides in the shadows and creeps along the walls at the street sides.” What is the meaning of these statements?
Orach Yesharim explained this lesson as an ethical instruction. Generally, the correct approach is moderation. Rambam rules that one should always adopt the middle approach. One should not be overly emotional. One also should not be apathetic and emotionally detached. A happy medium is to be found for all attributes and traits. The golden mean is represented as the middle of the road. In times of peace, one should avoid the edges. This means one should avoid extreme behaviors. However, the Baraita is teaching that desperate times call for desperate measures. If it is an era of a spiritual plague, then one cannot try for moderation. When the majority of the nation has left observance, those who would like to remain loyal must go to the edges of the street. They must take on extreme measures of piety and holiness so as to withstand the pressure of the masses. In difficult times, holy zealousness is a virtue.
(Peninei Hadaf, Veshinantam)