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Suing Your Rabbi: Clergy Malpractice in Jewish Law
Rabbi Mark Dratch

It is puzzling that Rambam does not hold the money appraiser liable under the tortious category of garmi, but rather under contractual law. After delineating the liability of butchers and bakers who improperly prepare foodstuffs brought to them, Rambam continues:

And so if one shows a coin to a money appraiser and he declares it good and it [was found to be] bad: If he was paid for his opinion, he must pay, even if he is an expert who requires no further instruction. If he was not paid, he is exempt, provided he is an expert requiring no further instruction. If he is not such an expert, he is liable even if he renders his services for free, provided that the inquirer states, "I am relying upon your opinion," or if it can be reasonably assumed that he is depending solely upon his evaluation, and will not show it to others.35

Why did Rambam include the bad advice of the money appraiser in the laws of contracts rather than in the liabilities of garmi? Why did he introduce payment for services as a factor in liability, a factor not mentioned in the talmudic exposition?

In an attempt to understand Rambam's unique approach to our matter of the money appraiser we must first investigate his position on liability in cases of gerama and garmi. He states in Hilchot Chovel uMazik, 7:7,

Anyone who harms the property of another must pay full damages... Even if, in the final account, he was not the ultimate perpetrator of the damage, he is liable for them since he was the first cause. What is the case? If he tosses his vessel from the roof [to fall] on top of pillows and blankets, and another came and removed the pillows and the vessel fell on the ground and broke, [the one who removed the pillows] is liable to pay full damages as if he had directly broken them by hand, because the removal of the blankets and pillows caused the vessels to break. If one throws his friend's vessel off the roof [to fall] on pillows and blankets, and the vessel owner removed the pillows before [it landed], the thrower is liable because his throwing was the first cause of the vessel's breaking.

Rambam's opinion is contrary to what we have previously established as exemption in cases of gerama and is not in accord with the talmudic evaluation of similar circumstances. The Talmud states:

Rabbah again said: In the case of one throwing a vessel from the top of the roof while there were underneath mattresses and cushions which were meanwhile removed by another person, or even if he who had thrown it] removed them himself, there is exemption; the reason is that at the time of the throwing [of the vessel] his agency had been void of any harmful effect. [lit., "he had let his arrow off"; when the act of throwing took place it was by no means calculated to do any damage.] 36

Rabbah's opinion seems to be the classical case of gerama - the act of throwing was only an indirect cause of the damage which most directly resulted from the removal of the cushions.

From the disparate rulings in the gerama case in which the pillows will originally prevent the vessel's breakage - the Mishnah exonerates the perpetrator and Rambam obligates him to pay damages - we must conclude that Rambam holds an individual liable for all acts of damages, whether direct or indirect, gerama or garmi. Let us carefully examine Rambam's languages:

One who causes damage to another's property is liable to pay damages from the best of his own assets, like all other malfeasors. Even though he is not the final cause, [he is liable] since he is the first cause.

Rambam clearly maintains that as long as the damager is responsible for a cause in fact, even if he is not the perpetrator of a proximate cause, he is liable. This position is affirmed in Hilchot Nizkei Mammon 14:7 where Rambam decides against a previously quoted Mishnah which offers exemption when the wind contributes to the fanning of the fire. Rambam maintains that if both he and the wind are malfeasors, he is liable because "he is a cause, and everyone who causes a damage to occur must pay full damages from the best of his assets, like all other damagers."

This thesis seems to be contradicted by Rambam's statement in Hilcbot Shechenim 11:1-2:

One who builds a threshing floor on his property, or establishes a latrine, or performs work which creates dust or dirt, must do such activity at a sufficient distance so that the dust or odor will not be able to reach his neighbors and cause harm to them. Even if it were the wind which abetted him at the time in which he was engaged in his activity and which carried the dirt... He must distance himself so that they can not reach his [property] to cause harm. Even though he is obligated (to build these structures) at a distance if the normal wind carries the chaff or dirt and (his neighbor) incurs damage, he is exempt from payment for it was the wind that assisted him and the tort is not a result of the tortfeasor alone.

Rambam's legislation is inconsistent. In the case of the fire fanned by both the actor and the wind, the tortfeasor is liable despite the presence of the wind as a contributing factor. In the case of the threshing floor and the latrine, the intervention of the wind relieves him of any liability. We may resolve this contradiciton by further refining our definition of the sort of physical cause must be, by its very nature, a tortious act (maaseh hezek). Hence, in fanning a fire or tossing a vessel from a roof, both of which are objectively tortious, the actor is liable despite the subsequent intervention of the wind. Building a latrine and erecting a threshing floor are not by nature tortious - they became tortious only because of Nature - and their builders are exempt.

This requirement is confirmed in Rambam's ruling concerning the individual who places poison in front of another's animal. He states in Hilchot Nizkei Mammon 4:2 that such an act, although morally reprehensible, is not punishable. Although in this case the person is a cause in fact of the subsequent damage, the Talmud (BK 47b) posits that such poison is not consumed by animals and, hence, its placement is not naturally tortious. Rambam likewise offers exemptions in the case of judicial malpractice to a licensed expert because "even though he caused the damage he did not intend to damage" (Hilchot Sanhedrin 6:1). Lack of malicious intent makes his decision, by its very nature, a nontortious one.

Let us return to the case of the money appraiser whose advice is a cause of damage. Why, according to Rambam, is his liability a case of contractual law and not a function of torts?

It appears that Rambam holds the tortfeasor liable for perpetrating a cause in fact only when he is the physical cause of damages. Where, however, the cause is verbal, and not physical - such as in the case of the money appraiser - he cannot be held liable under the category of torts. Rambam does, however, hold the money appraiser responsible as one who breaches contract law. In such situations, if an appraiser, upon entering into a professional relationship with another party, accepts responsibility for the tortious results of his advice, he is liable - even though he is not the physical cause of the damage. Hence, Rambam included the case of the money appraiser in his section on contract law and distinguished between the liability of those who are paid and those who are not.

Problematic in this explanation of Rambam's opinion is his claim that an unpaid non-expert money appraiser is also liable for bad advice. If he is not paid, and therefore not under contract - and, according to Rambam, cannot be held liable under garmi - how can he be held responsible? We must note, however, that Rambam maintains that to incur liability under such circumstances the inquirer must state, or it must be reasonably apparent, that he is relying upon the counselor's opinion. With such an understanding, the non-expert money appraiser, despite his legal exemption, accepts liability for his counsel.37

Let us now turn to our case of rabbinic malpractice occasioned by unprofessional pastoral counseling. What would be the outcome of the Nally case if it were presented to a Jewish Court?

The Nally case may be evaluated not as a question of breach of professional standards but as one of responsibility for the counselee's ultimate suicide. In this respect, the clergyman's advice, although it may have contributed to the ultimate suicide of Kenneth Nally, is not the immediate, direct, or proximate cause of death. Certainly Nally's own hand which pulled the trigger is an intervening factor which would render the couseling activity gerama -- and not garmi.

This gerama exemption is further strengthend by the nature of pastoral advice itself. The rabbi, like the money appraiser is a professional who dispenses advice. However, unlike the money appraiser, whose garmi liability depends upon the binding nature of his advice, conformity to rabbinic counsel is voluntary. Nevertheless, grounds for action may be found if the congregant declares explicitly his reliance upon the rabbi. In such a circumstance, adherance to rabbinic advice becomes self-imposed. This staement creates proximity between the rabbi's advice and the congregant's action, and make improper counseling actionable. If Nally had made clear that he had acted solely upon the advice of the minister - and the clergyman had accepted such responsibility - there would be grounds for garmi liability.

For Rambam, the issue is not one of the clergyman's contribution to Nally's suicide through counseling; he holds that such behavior is unactionable, as the pastor was not a physical cause of the tort. Rambam would hold that the contracting of a rabbi qua pastoral counselor by a congregation subjects him to adhere to certain professional standards. Negligent breach of these standards which results in damage is actionable, even if it does not fulfill the garmi requirements of directness, foreseeability, and immediacy. Rabbinic liability in Jewish law exists, therefore, if the advisee is a member of the rabbi's congregation and acting on the rabbi's negligent professional advice, suffers measurable financial loss. If the inquirer is not a member of the congregation and the rabbi is thus dispensing his advice gratis, there is no liability. If a person is not a congregant, but pays for the rabbi's services or if he states, "Behold, I rely upon you," rabbinic liability may have been incurred.

Although we have established a halachic basis for clergy responsibility in instances of tortfeasance, we have not defined the contractual expectations of rabbinic counseling competence. To hold rabbis liable, communities would have to formulate minimal standards ef care which, barring modification by the rabbi and congregant before entering into a counseling relationship, would apply to rabbis and their congregations. Such standards would have to take into account such issues as rabbis' training in counseling as well as the type of counseling relationship entered into (e.g., a five- minute-telephone call vs. ongoing intensive interaction.) Such standards have not been set in Jewish communities and do not exist in the general community. The California Supreme Court found that clergymen have no legal responsibility for suicide prevention, holding that such a duty may have deleterious effects upon the relationship between the pastoral counselor and the counselee. In the absence of such assumed or prescribed liability, the Jewish court would exempt the clergyman from liability in Nally's suicide.

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