Who Pays For The Broken Elevator?

Let's sit on a Beis Din together....:-)


Question:


A resident in an apartment building put a heavy machine in the elevator that was beyond the permitted weight for this elevator. Because of his negligence, the elevator was slightly damaged. Some time later, another resident did the same but this time the elevator was completely broken. The neighbors are suing the second person to fix the elevator and he in turn is suing the first person to pay his part in the damage, because he claims that it was the other fellow's fault as well. What is the din?


Answer:


The first person must pay for the amount of damage he caused. The second person pays for the rest. Tosfos in Bava Kamma [51a D.H. Ha-acharon] say that if one person dug a pit 8 tfachim deep and a second person dug another tefach, they are partners in the damage. The Shulchan Aruch rules that each pay proportionately to the amount of damage he caused.


This should not be compared to the law explicated by the Rambam [Chovel U'mazik 6/ 14] and the Shulchan Aruch [383/4] that if 5 people each placed a burden on an animal and then after a sixth person came along and placed his burden on the animal it died, if we don't know if the animal would have died even if the sixth person had not come along or it died because of the added burden, the halacha is that they all pay equally. In that instance the death of the animal might have been caused by all of them as a unit, thus, they all pay an equal share. Here, the damage was already caused by the first person before the second person came around and he was already chayav for the damage he caused. Afterwards, the second person broke it and has to pay the rest.
[ספר משפטי התורה עמ' רס"א-רס"ב]


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