Scar Trouble: Must One Pay for Leaving a Mark?

Adapted from the writings of Dayan Yitzhak Grossman

August 24, 2023

The Associated Press reports:

A South Florida jury awarded $800,000 in damages to a little girl who received second-degree burns when a hot Chicken McNugget fell on her leg as her mother pulled away from the drive-thru of a McDonald’s restaurant. [Philana Holmes, mother of plaintiff Olivia Caraballo] testified on Tuesday that Olivia, now 8, calls the scar on her leg her “nugget” and is fixated on having it removed…Lawyers for McDonald’s argued that the child’s discomfort ended when the wound healed, which they said took about three weeks. They contended that the girl’s mother is the one who has the problem with the scar, and told jurors that $156,000 should cover damages, both past and future…[1]

The plaintiff had argued that the restaurant was negligent in failing to warn about the risk of hot food, that McDonald’s corporate didn’t provide adequate instructions for the handling of hot food, and that the nugget, being too hot, was a defective product. We will not address here the legitimacy of those claims, only the question of liability for an injury that heals but leaves a scar, under circumstances where the perpetrator is in fact culpable for the injury.

The Mishnah sets forth five causes of action for personal injury:

Someone who wounds another person is obligated to pay him for five things: for nezek (damage), for tza’ar (pain), for ripui (healing), for shevess (loss of work), and for boshess (humiliation).

How is nezek calculated? If he blinded his eye, cut off his hand, or broke his leg, we view the victim as if he were a servant being sold in the market, and we estimate how much he was worth before the injury and how much he is worth now. (The assailant must pay the difference.)

How is tza’ar calculated? If he burned him with a hot iron spit or with a hot nail—even on his fingernail, where it does not make a (market value-reducing) wound—we estimate how much money a person like this would want to take to suffer such pain. (The assailant must pay that amount.)

How is ripui calculated? If he hit him, he must heal him (i.e., pay the costs of his healing)…

How is shevess calculated? (If the victim now cannot do the type of work he did before, we view him as though he were a watchman of a cucumber field (because that is all he can now do). The assailant must pay him the wages of a cucumber watchman for each day that the injury prevents him from doing even this simple work.)…

How is boshess calculated? It all depends on the status of the one who caused the humiliation and the status of the one who was embarrassed. (The humiliation is greater if the victim’s status is higher or the assailant’s is lower. We estimate how much someone of the victim’s status would pay to avoid being embarrassed by someone of the assailant’s status, and the assailant must pay that amount.)[2]

Note that tza’ar and ripui apply only to injuries caused by a person (adam hamazik), and not those caused by someone’s property, e.g., his animal (mamon hamazik).[3] Additionally, there is a dispute among the Rishonim whether they apply to injuries caused by a person indirectly (even where such indirect action does engender basic liability for damage—dina degarmi),[4] and as we have discussed previously, boshess has the additional requirement of intention to humiliate.[5] These issues are beyond the scope of this article, in which we will discuss a type of injury to which these various causes of action apply.

Nezek

As the Mishnah states, nezek is the decrease in the price that the victim would fetch if sold as a servant. This takes into account the victim’s profession.[6] R’ Yaakov Blau says that this calculation is rather infeasible today, because slavery is uncommon.[7] The unfortunate truth is that slavery does exist today, and there are estimates of tens of millions of people currently enslaved around the world,[8] but it is unclear to this author whether this trafficking in human beings is relevant to the halachic assessment of nezek.

In any event, the case of an injury that leaves a scar is explicitly discussed in the Gemara, which concludes that someone who wounds a girl on her face is liable for nezek because he has lowered her monetary value.[9] The Rosh and the Tur explain that this refers to the reduction in both her bride-price and her earning capacity or market value.[10]

In a case like Olivia Caraballo’s, it would appear that neither most professional occupations nor a girl’s bride-price (if such a thing even exists today in the US) would be affected by her scar, so there would be no claim for nezek.

Shevess

When someone inflicts an injury upon someone else that leaves a scar, any income lost during the convalescence would certainly be included in shevess, but to the extent that the scar itself causes a loss of income, that would presumably be included in nezek, as above.

Tza’ar

Although the Mishnah says one is liable for inflicting pain, Rishonim disagree about whether this is limited to pain experienced at the time of the injury or it extends to pain that endures,[11] so pain caused by a scar would be a matter of dispute. Further, the Pis’chei Choshen (R’ Yaakov Blau) assumes that liability is limited to physical pain and does not extend to emotional pain (“tza’ar nafshi”),[12] so any liability for pain caused by a scar would have to be based on physical pain or discomfort rather than psychological distress.

Boshess

The Yerushalmi rules that there is no liability for humiliation if the injury is in a place where it isn’t visible:

One who injures another person…in a place where it is not seen, he gives him two, tza’ar and ripui (and not nezek, shevess, or boshess).[13]

This rule is codified by the Rambam:

If he struck him in a place where it isn’t seen—e.g., he struck him on his knees or on his back—he pays two, tza’ar and ripui.[14]

The Shulchan Aruch rules:

If he struck him in a place where it isn’t seen and no one saw him, he gives him only tza’ar and ripui.[15]

The Sma explains that an assailant is exempt from liability for humiliation only if both these conditions are met: The injury is in such a place that it will not be seen later, and no one saw it at the time of the assault.[16]

The clear implication is that unlike liability for tza’ar, which some Rishonim maintain is limited to pain experienced at the time of the injury, liability for humiliation extends to that experienced subsequently. Rav Blau initially suggests that this is limited to where the humiliation is caused by people seeing the victim’s mark and deducing that he had been struck, “but we do not find [liability for] humiliation subsequent to the blow that is not from the blow itself.” Later, however, he is tentative on this point.[17]

Accordingly, a scar would engender liability for humiliation if it is clearly indicative of the injury that caused it, but it might not if it is not so indicative.

Ripui

There are a variety of possible medical treatments for scars.[18] An assailant’s liability for healing would presumably include the cost of the appropriate treatment for any scar caused by his attack, although it is not clear to this author whether that would extend to a scar that does not cause nezek, tza’ar, or boshess but which the victim nevertheless desires to remove.

[1]Jury awards Florida girl burned by McDonald’s Chicken McNugget $800,000 in damages. AP News. https://apnews.com/article/mcdonalds-chicken-mcnugget-lawsuit-girl-burned-8a21d966b3db48089782352138538cd8.

[2]Mishnah Bava Kama 8:1.

[3]See Pis’chei Choshen Hilchos Nezikin (5748) perek 11 se’if 3 pp. 309-10.

[4]Ibid. se’if 4 p. 310.

[5]For All Intents: Does Mind Matter? Bais HaVaad Halacha Journal. June 10, 2022.

[6]Piskei HaRosh ibid. siman 4; Rama to Shulchan Aruch C.M. 420:15; Sma ibid. s.k. 17; Pis’chei Choshen ibid. se’if 9 p. 312.

[7]Pis’chei Choshen ibid. n. 24.

[8]Wikipedia contributors. Slavery in the 21st century. In Wikipedia, The Free Encyclopedia. https://en.wikipedia.org/w/index.php?title=Slavery_in_the_21st_century&oldid=1165299025.

[9]Bava Kama 88a.

[10]Piskei HaRosh ibid. siman 7; Tur C.M. siman 424.

[11]Tosfos Ksubos 39a s.v. Tza’ar demai; Shu”t HaRosh klal 101 siman 2; Tur, Bais Yosef, and Bach C.M. siman 420.

[12]Pis’chei Choshen ibid. end of n. 32 p. 313.