Shabbat Parashat Ki Tisa 5785

P'ninat Mishpat: Upper Property’s Responsibility for Flooding

Case: The defendant (=def) bought a property which he rents out to a factory, located above the plaintiff’s (=pl) factory. There is a retaining wall between the propertyies (to prevent collapse of earth from def’s into pl’s property), and when the two bought their properties, there was a drainage pipe in def’s property to prevent flooding pl’s from rain. In 2020 (=ff), rainwater caused significant damage to pl’s equipment. In the summer of 2021 (=sf), a large water tank in a third factory, above the two properties, exploded and, descending through def’s property, its water caused further damage. Pl is suing for both events, claiming that def’s removal of the pipe during construction work was responsible. Def denies removing the pipe before ff and claims that he therefore did nothing wrong. Regarding sf, def removed the pipe during the summer with the plan to install another one before the rainy season, and had no reason to expect sf.

Ruling: The fundamental halachic question is whether the owner of a higher property must take steps so that water not damage property below it. The Rama (Choshen Mishpat 155:4) says that the owner of the higher property is not required to prevent water that he does not own and to whose presence he did not contribute from going into his neighbor’s property; the latter is to take precautions to protect himself. This is apparently contradicted by the Rama (CM 164:1) who requires the owner of a roof to keep it from allowing rain to damage another. The Netivot Hamishpat (164:2) answers that the latter source is talking about a case in which there is a partnership of sorts between the neighbors, which obligates each to the other. Therefore, in our case of neighbors who are not partners, def would not have been responsible to pay for upgrades. However, since def received the property with a pipe in it, he would be required to maintain the precautionary devices he received. Since he recently did work that now endangers pl’s property, def must properly restore a pipe.

The sides disagree about whether the pipe was present during ff. During a relatively recent phone call between def, pl, and a supervisor in the third company, def apparently admitted that the pipe had been removed. Def claims he was confused during the conversation and misspoke. In fact, def presented two pictures showing no significant difference in the site before and after the alleged changes, and pl admitted that the pictures show no relevant change. (Pl argued that the dating of the pictures was mistaken, but it was proven that pl was wrong about that.) Since pl’s admission was done in beit din, where a litigant knows he needs to be exact, pl’s admission is more weighty. In this circumstance, def can claim he made a mistake during the phone call (see Shulchan Aruch, CM 81:23).

Beit din is not required to analyze whether def could be obligated to pay for the damage from sf. This is because twice during the adjudication, pl said that he would be fair to def and not demand payment for it. After such mechila, even if (far from clear) pl would have been deserving compensation from def, he can no longer demand it.  

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