Shabbat Parashat Pinchas 5777

P'ninat Mishpat: Altercation with a Photographer – part II

Case: The plaintiff (=pl) is a newspaper photographer who went to a building site in a settlement that was the subject of legal/public controversy. Upon starting to take pictures, Reuven, a guard at the site, told him to leave. Pl continued taking pictures from a nearby public street, and then Reuven was joined by the defendant (=def), the site’s foreman. After a short argument, pl started taking pictures of def until the camera sharply hit him in the nose causing blood to stream down. Putting down the camera, he saw that only def was close enough to have hit him. Def denies hitting him and said that he only raised his hand to block the camera’s view, and that apparently pl banged the camera into his nose himself. Reuven’s story was similar to def’s. Pl is suing for 100,000 shekels (his injury includes a deviated septum).

Ruling: We saw last time that there was enough circumstantial evidence to require a compromise payment for some of the damage that def caused pl.

The gemara (Bava Kama 84b) posits that beit din consisting of those without authentic semicha (everyone in our time) cannot rule on penalty payments. They can only rule on natural obligations that emerge from common cases and that involve loss of money. Bodily damage that one person inflicts on another is considered uncommon and thus should not be judicable. The Rambam (Sanhedrin 5:10) says that payment is due for medical expenses and time missed from work, and the Shulchan Aruch (Choshen Mishpat 1:2) concurs. The Rama brings those who differ but says that the minhag is for beit din to make an informal ruling as a means to appease the injured, who has a valid grievance. The Mabit (I:93) understands that this refers to all the elements of bodily damage. The Tur (CM 1) sees this as a late Rabbinic institution, which can be exercised under certain circumstances.

If the sides voluntarily accept broad adjudication rules, the Sha’ar Mishpat says that while they cannot affix actual penalty payments, they can obligate payments in less common cases, like bodily damage. In our arbitration agreement, the sides accept our authority to follow rules that include compromise according to our discretion, which, we believe, gives us the right to levy such payments. Because the proofs of def’s culpability were not halachically complete and because our authority is only for compromise, not full payment, the award we will make is quite partial.

There is no payment here for permanent damage (nezek). There is some room for payment for tza’ar (pain caused) during and after the incident. We do not require payment for medical expenses to the extent that these are covered by the national medical insurance. However, there are always some additional medical expenses that are not covered. In this case, it is also not clear if def will undergo an operation on his nose and whether it will be fully covered. If needed, def will be responsible for 35% of the expense (pl has 180 days to submit paperwork on this matter).

The amount due as of the rendering of this ruling is 2,500 shekels. If def knows that he indeed did cause the damage, this amount does not cover his full moral obligation.  

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