Shabbat Parashat Ki Tavo 5772

P'ninat Mishpat: Wrong Way Collision – part II

Case:  The plaintiff (=pl) pulled out of his driveway and banged into the defendant’s (=def) car, as the latter was driving in reverse on a one-way street, causing damage to both cars. Pl claims that since def drove against the traffic rules, def is responsible for the accident. Pl claims to have pulled out slowly and says that he had no reason to suspect a car would be coming from the wrong direction. Def counters that since pl anyway had to look in both directions due to pedestrians, he was at fault for not seeing and avoiding def’s car. [Last week we discussed why def is responsible for damages to pl’s car and not vice versa.]

Def offered to pay pl for his damages using an auto garage that he knows. Pl refused, based on the advice of his insurance agent, and had the damage professionally appraised, after which he took the car to an expensive garage. The cost was 15,000 shekels, including the appraisal. Def says that he could have had it fixed for 4,000 shekels, had pl agreed to his garage.

Ruling: The gemara (Bava Kama 85a) discusses the medical payments of one who caused bodily damage to another. The gemara says that if the damager says that he wants to heal the injured person himself, the latter can refuse. Likewise, he can refuse for the damager to bring someone to heal him for free. As the gemara explains, the (lack of) quality one gets when the healer is not paid is expected to show. Similarly, one cannot bring a doctor who lives in a distant place because he does not have the same level of accountability. However, the underlying concept that we see from the gemara is that if the means of remedying the situation are reasonable, the damager, who has to pay, has a say in choosing the means of remedying the situation.

Thus, to the extent that def is to pay, it is his right to try to negotiate as cheap as reasonable a price for fixing the car, on condition that is within accepted standards. By employing a professional appraiser, one has to add to the cost of the appraiser the fact that once he has set a price, there is no leverage to get a garage to do the work for cheaper. Therefore, since def agreed to pay for damages through his sources, pl should have gone through that process.

At this point, pl has two options. If he wants to receive payment from the insurance company, he is likely to receive the full amount set by the appraiser (which is why he originally used one), and he can proceed in that way. If he continues to sue def directly, then he is entitled only to the sum of a more reasonably priced professional job. Beit din has the authority given to it by those who sign the arbitration agreement to employ their own experience and reason. (This is the correct approach, as a further appraisal will just add to the price). They set the price at 9,060 shekels.

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