Mr. Cooper was completely renovating his house. The contractor had set up scaffolding all around the house. While dismantling the scaffold, one of the workers accidentally dropped a piece, which fell on the neighbor’s roof and damaged it.
The neighbor, Mr. Flaum, came to Mr. Cooper. “It’s nice that you were able to renovate your home,” he said. “Unfortunately, this caused damage to my roof. I expect you to make good on that.”
“I’m sorry that your roof was damaged,” Mr. Cooper apologized, “but it has nothing to do with me. The scaffolding is the contractor’s issue.”
“I have no connection with the contractor,” argued Mr. Flaum. “He was doing work for you, though, so as far as I am concerned, you’re liable.”
“I have nothing to do with this,” insisted Mr. Cooper. “The contractor is coming this afternoon. You can speak with him.”
That afternoon, Mr. Flaum showed the contractor the damage to his roof.
“What do you want from me?” asked the contractor.” I was not involved in doing the damage. If the worker was careless, you can sue him; speak with him directly.”
Mr. Flaum approached the worker. “You dropped a piece of the scaffold on my roof and damaged it,” he said.
“I’m sorry,” said the worker. “I was trying to be careful, but it slipped out of my hand. In any case, I’m just working for the contractor, so he carries any liability for what I do.”
“This is crazy!” exclaimed Mr. Flaum. “It’s become a run-around!” Finally, he called Rabbi Dayan and asked:
“Who is liable for the damage to my roof: Mr. Cooper, the contractor or the worker?
“The primary liability for damage,” replied Rabbi Dayan, “rests on the person who did the damage, as the Mishnah (B.K. 26a) teaches: ‘A person is always prone [to damaging], whether unintentional or intentional’” (C.M. 378:1).
“Elsewhere (B.M. 118b), the Mishnah addresses workers who were hired to build a stone wall. It teaches that each worker – the one who hewed the stone, who finished it, who transported it, who put it on the wall, and who positioned it – each is responsible for damage while the stone was in his care since the damage emanated from his actions. If the stone fell after it was already positioned on the wall, if the workers were partners in a contracted team (kablanim) – they share the liability since they jointly accepted the job; if they were hired workers (poalim), only the final worker is liable, because each one completed his task and transferred liability to the other” (Rashi, ibid.; Pischei Choshen, Sechirus 7:25-26).
“Thus, in principle, Mr. Flaum’s claim should be directed to the worker who dropped the piece of scaffold while working. Nonetheless, some poskim rule that when a person hires a contractor who has workers, the implicit understanding is that the contractor takes responsibility for any damage done by his workers. Even so, this might apply only if the worker damaged the customer’s property, whereas there is no implicit “agreement” between the contractor and the neighbor” (see Binas Hamishpat, vol. II, #57).
“Even so, many countries hold an employer liable for damage done by his workers (at least when not through gross negligence); most often the contractor’s insurance will cover the damage done by his workers. It is questionable whether dina d’malchusa applies to damage claims between Jewish individuals, but it should be considered minhag hamedinah (common commercial practice) between the contractor and his worker. Thus, although the neighbor’s immediate claim is to the worker, the worker can often transfer the liability to his employer, or his employer’s insurance, to cover him.
“In any case,” concluded Rabbi Dayan, “Mr. Flaum has no claim against Mr. Cooper since he did not do the damage and took no responsibility for the worker’s damage.”
Verdict: The primary liability rests with the worker who damaged, but in many instances he can transfer the liability to his employer (the contractor).