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By: Rabbi Max Sutton

Murray, a young man eighteen years of age, took private driving lessons with Cheryl, a certified Driver’s Ed teacher. During their second lesson, Cheryl seemed to be preoccupied with a family issue and conducted numerous phone calls throughout their time together. Feeling neglected, Murray expressed his frustration. Cheryl reassured him that he finally had her undivided attention as she had just completed her last phone call. However, only minutes later, Cheryl apologetically answered yet another phone call and conducted a lengthy conversation while Murray was driving.
At this point, Murray was furious. In an attempt to get Cheryl’s attention, he pulled away at a green light at maximum speed. Flooring the gas pedal from his stationed position caused him to lose control of the wheel and he side-swiped a car parked alongside the road. Both cars sustained considerable damage on account of the accident. Thereafter, Cheryl informed Murray that her car insurance policy would cover for damages, since, to her knowledge, the accident was not committed deliberately. However, it was his responsibility to pay the $500 deductible. In Bet Din, Cheryl claimed that Murray’s intentional reckless driving was what ultimately caused the accident. Murray emphatically counterclaimed that, since he was an unlicensed driver, it was Cheryl’s responsibility to supervise his actions. Her failing to do so made her partially negligent as well and responsible for bearing the $500 cost of the deductible. Murray believed that had Cheryl not been speaking on the phone, the accident could have been prevented.

How Should the Bet Din Rule and Why?

By rule of the Shulhan Aruch, in instances in which an owner is servicing a borrower or renter at the time he transfers the item to their possession, the borrower or renter are exempt from payment of damages even in case of negligence. This ruling is stated as an explicit verse in our holy Torah and, although no logical reason is offered to support it, it is a divine decree accepted and abided by all religious Jewry. Nevertheless, this exemption is limited to damages caused by negligence. If however, the borrower or renter inflicts damage to the item intentionally, the above decree is not applicable and complete compensation must be paid to the owner. Hence, although an instructor who owns the vehicle is servicing a driver, the driver is not exempt from payment in instances in which he inflicts damage while driving.

According to the ruling of the Shulhan Aruch, two people operating a vehicle together must share in the payment of damages caused as a result of their joint negligence. In a classic ruling, two people were liable while operating a vehicle, as they did not exercise the necessary precautionary measures and failed to pay attention to what the other was doing. Since each party could have instructed the other and thereby prevented the accident, they are both considered jointly negligent and equally liable.

This above ruling is applicable only in cases where each party could have prevented the accident and the subsequent damage. In instances in which the negligence of one party is obvious and the other party could not have prevented the damage, then the cost of damage is not to be shared. Hence, an intentionally reckless driver is usually liable for the total cost of damage and may not blame his actions on an instructor’s failure to perform her duties. Since this accident happened so quickly it could not have been prevented, even if the instructor had been attentive, the cost of damage is sustained by the driver.

By rule of the Shulhan Aruch, if an employee does not perform his duties as required, the employer is obviously entitled to withhold his wages as a result. While the employer may deduct wages, he may not use excessive measures to force the employee to perform his job. Hence, if a driving instructor is preoccupied while servicing a driver, the driver may withhold payment for the lesson. However, a driver may not use excessive measures such as driving recklessly to draw the attention of the instructor. If the driver chooses to use excessive measures regardless, he is solely responsible for damages caused as a result. As mentioned above, if the instructor could not have prevented the damage, even if she gave her undivided attention to the driver, she is not responsible to share in the cost of damage.

Upon damaging a car that is insured, the general consensus of leading halachic authorities is to require the offender to reimburse the car owner with the cost of his deductible. Since the car owner is retrieving the cost of his damages from his insurance, he is not entitled to collect a second payment from the driver using his car. Furthermore, a borrower or renter of a private car generally only accepts liability for the deductible, since he assumes that the car is insured. While some halachic authorities disagree, nevertheless, the above ruling is the accepted practice.

Endnotes: Shulhan Aruch Hoshen Mishpat 301: 1, Sema Hoshen Mishpat 301:3, Baba Metziah 80a, Tosafot 80aVe’ee, Shulhan Aruch Hoshen Mishpat 309, 4, Sema 309:16.

Upon investigation, our Bet Din ruled that Murray is obligated to pay Cheryl the $500 deductible she incurred in damages. However, Murray was absolved from paying Cheryl for the driving lesson; because of her inattention, it was deemed that she did not earn her standard fee. By rule of the Shulhan Aruch, if two people operate a vehicle and don’t exercise the necessary precautionary measures, they are both liable to pay. Nevertheless, after reviewing the police and insurance reports and hearing testimony from numerous witnesses, our Bet Din ruled that Murray was responsible for the total cost of damage. Although it’s true that they were jointly negligent, an angry Murray took action so quickly that Cheryl would not have been able to prevent the accident even if she hadn’t been on the phone. For this reason, she is not required to share in the cost of damage. Murray originally claimed that had Cheryl not been on the phone, she could have prevented the accident. He later explained what he had actually meant – that had she not been on the phone, he would not have floored the gas and thus the accident wouldn’t have even occurred. As mentioned in Torah law, Murray had the legal right to withhold Cheryl’s wages for not doing her job, but he had no right to use the car as a weapon to attract her attention. Consequently, he was made to pay for his unwarranted reckless driving.