Question

Shlomo was having building work performed in his apartment. He had the
heavy blocks and other building materials loaded into the elevator. The
elevator made it to the fifth floor, where he lived, but developed a
permanent tilt to the right! A week later, his neighbour, Dovid, started work
on renovating his apartment. He also overloaded the elevator with building
materials, but was no so fortunate. The elevator was midway between the
ground and first floors when it broke down. The question is who has to foot
the bill for the expensive repair which is now needed. Shlomo argues that he
is exempt from paying, since the elevator continued operating after he
overloaded it. Dovid admits that his overloading contributed to the
breakdown, but argues that he should not have to foot the entire bill. When
he loaded his materials, the elevator was already in need of repair as a
result of Shlomo’s previous overloading. How should we distribute the cost of
repair?

Answer

Reuven dug a pit in the middle of the street which is nine
tefochim (handbreadths) deep. Shimon deepened the pit by one tefach,
making it ten. Who is liable for any damage caused by falling into this
pit? According to the first opinion in the beraisa (Tractate Bovo
Kamo 51a), only Shimon is liable for such damage. Rebi disagrees,
arguing that Reuven’s nine tefochim was enough to injure. Therefore,
if injury is caused, Reuven is liable. All Shimon achieved was to make it
possible for this pit to kill. He is only liable if falling into the pit
causes death. Tosafos explain that the only reason why the first
opinion holds Shimon exclusively responsible is because he created a new
type of pit, one which can kill. Had Reuven dug eight tefochim and
Shimon added the ninth tefach, both having dug a pit which can cause
injury, he would agree that both are liable for any resultant damage.

How would the cost of damages be divided amongst them in
such a case? The Shulchan Oruch (Choshen Mishpot 410:13) rules
that each one pays for the damage that he actually caused. What the
Shulchan Oruch means is that Beis Din must assess how severe the
damage would have been had the pit only been eight tefochim deep. This
is what Reuven has to pay. Shimon will only be liable for the additional
damage caused by the extra tefach, if the injury is greater on account
of the pit being deeper.

Five people placed their loads on a donkey. When the sixth
person added his load, the donkey dropped dead. Who has to pay for the
donkey? The Shulchan Oruch (Ibid. 383:4, based on the Rambam)
rules that if the animal was able to walk till the last person added his
load, only he is liable for the donkey. Should the animal already have been
brought to a halt by the previous loads, he is exempt from payment. If we are
in doubt as to the situation prior to his placing the load, all six share the
cost equally. This ruling raises a question. Why do we distribute the payment
equally amongst all the damagers? Why is this case different from that of the
pit, where each one pays for the proportion of the damage he actually caused?
Rav Tzvi Spitz (Mishptei Hatorah, Bovo Kamo No. 73) explains
that in the case of the overloaded donkey, there was only one damaging result
– the donkey’s
death. It is possible that each load contributed to the animal’s demise. That
is why we make them all share the payment equally if we are unable to
determine what actually happened. On the other hand, in the case of the pit,
the injury caused by nine tefochim is clearly different from that
caused by eight.

Our case is similar to that of the pit. Shlomo already partially damaged
the elevator by his overloading. He must therefore pay for the cost of repair
had Dovid not caused his additional damage. Dovid pays for the difference
between this and the actual cost of repair, even if his load could have
caused the breakdown on its own.