Dripping Neighbors

Question

Motti entered the children’s bedroom. He
noticed that paint was peeling off the ceiling. When he opened the
cupboard, he observed mold on the back; the clothes inside the cupboard
had a bad smell. The ceiling was moist to the touch. A brief investigation
revealed that the upstairs neighbor’s water pipe was leaking. Is Yitzy the
neighbor obligated to pay for repairing the damage to the ceiling,
furniture, etc.?


Answer

The first issue which we need to address is the
ownership of the water in the pipe. The water supply authority holds Yitzy
responsible for all the water which passes through his water meter. How
does he halachically acquire this water? A person’s land or utensils
acquire items on his behalf (kinyan chotzeir). In our case, the
pipes acquire the water for Yitzy. Accordingly, when his water causes
damage, he is responsible (mommono hamazik). Moreover, he is
obligated to ensure that his property does not cause any damage in the
first instance.

How does one fulfill one’s obligation to ensure that
one’s water does not cause damage? If a qualified plumber competently
installed the piping, using quality materials, it is unlikely that leaks
will occur. If this is what Yitzy did, he has fulfilled his obligation to
protect his neighbors against leaks. Should a leak nevertheless occur, we
consider it to be an unforeseeable accident. Yitzy would only then be
liable for damage incurred after he was made aware of the leak, but not
beforehand (Emek Hamishpot, 3:28:2). This can be compared to the
case cited in Tractate Bovo Kamo (55b), where bandits broke down
the good wall of a sheep pen at night. The sheep escaped and destroyed the
neighbour’s vegetable patch. The owner of the sheep is only liable for
damage caused after he was informed of the escape and only if he had an
opportunity to recapture the sheep after daybreak, yet failed to do so.
Since he locked the sheep into a properly constructed pen, there is no
expectation that they will escape. If they still manage to get out and
cause damage, this is considered a complete accident. Even if he was
informed at night, we can not demand that he blunders around in the dark
to locate his lost sheep (see Choshen Mishpot 396:2). We can
therefore conclude that whether Yitzy is liable for the damage caused by
the water in his pipes is dependent on (1) whether his pipes were in good
repair and (2) whether he acted promptly on becoming aware of the leak. It
would seem that if a person knows that his pipes are rotten, yet fails to
replace them, he is liable for all resultant damage. Failure to tend to
the plumbing is tantamount to neglectfully allowing one’s water to leak
out and cause damage. Similarly, failure to promptly attend to the leak
after having been informed of its existence is also considered negligence
(but only from the time one became aware of the problem). Into which of
the four basic categories of damaging agents does the water fall? The Emek
Hamishpot
compares the flowing water to fire. Fire causes damage as it
travels; so does the flowing water. Fire is propelled by some outside
force (wind); water is also forced through the pipes (generally) by means
of a pumping system. A fire’s basic function is constructive (heat, light,
cooking, etc.) and not destructive. Similarly, water entered the pipes to
fulfill the family’s needs, and not to harm the neighbours. If fire caused
damage through negligence, the "owner" is liable for all the
resultant loss. If he guarded it properly and it nevertheless caused
destruction, he is exempt from paying for this complete accident.

We can therefore conclude that if Yitzy’s pipes were in good repair and
he shut off the water immediately on being informed of the leak, he would
be totally exempt from paying for damage.