Judaism and American Law - Part 7

Tort law is similar in some respects to criminal law. In criminal law we have the public redress of offenses. In tort law the means are provided for the private redress of wrongs committed against either persons or property. For example, in criminal law, the offense of murder is prosecuted by the state on behalf of the people. The same murderous act may also provide the basis for a tort claim of wrongful death against the alleged killer by the surviving members of the victim’s family. The prosecution of criminal acts upholds the order of society. The litigation of tort claims arise out of the breach of duties that are owed to another as recognized and imposed by the law.

Our third passage under consideration provides one of the oldest formulations of a duty of care in tort law. Nearly every law student will recall a tort case read during their first year of studies that provides the legal maxim: “Every dog is entitled to one bite.” This rule, however, has its roots in Exodus, chapter 21, where we read, beginning in verse 28:

When an ox gores a man or a woman to death, the ox shall be stoned and its flesh shall not be eaten, but the owner of the ox is not to be punished. If, however, that ox has been in the habit of goring, and its owner, though warned, has failed to guard it, and it kills a man or a woman – the ox shall be stoned and its owner, too, shall be put to death. If ransom is laid upon him, he must pay whatever is laid upon him to redeem his life.

Though not as deferential to the life of the animal, the rule in Torah provides that the owner of the ox is preserved from greater liability upon the occasion of the first gore. The owner’s liability for injury to the victim is substantially increased, however, if the ox has been in the habit of goring. In modern tort law, the issue is whether the owner of the dog knew or should have known of the dog’s propensity to bite. If the answer to that question is yes, then the owner’s duty of care is heightened and his potential liability for injury caused by the dog bite is increased.