I recently gave a shiur (here) on Shomer Petaim Hashem, the principle that asserts that certain actions which are sometimes dangerous are permitted if people regularly engage in them.
I was asked the following question: Am I allowed to put someone else in a position of potential mild danger (without their explicit permission), if the danger is minimal enough and engaged in regularly enough that we assume it is permitted based on the principle of Shomer Petaim Hashem? Do I have to be concerned that they want to worry about the unlikely danger despite the fact that Halacha does not mandate that they do?
Logically, I would suggest as follows: There are two ways to understand the principle of Shomer Petaim. Either things that normal people do cease to be considered dangerous Halachically, or despite that fact that they are somewhat dangerous it is permitted to engage in these types of activities – it is a heter. Implications include whether it is preferable to avoid these actions, whether I have the right to be derelict in a mitzvah if I choose to actually be concerned about these types of dangers, as well as others. For a full discussion, see R. Amital’s article in Risisei Tal on the subject.
If one takes the former position, then it should be permitted – the actions is not dangerous as far as we are concerned. If one takes the latter, one could argue that while I am permitted to engage in this type of quasi-dangerous activity if I so choose, I cannot force or cause you to. You can always claim you want to be more cautious than the average person.
However, leaving these arguments aside, there seems to be a Gemara that confirms that it is in fact permitted. The Gemara in Shabbat 129b, while assuming that on days when the “northern wind does not blow” it is dangerous to have a brit milah, permits people to have a milah on such days now that people regularly do have milot and are not endangered – it is permitted because of Shomer Petaim Hashem. Here, the father is the one who forcing the child to have a brit milah. In fact, on the basis of this diyuk, R. Elyashiv in Kovetz Teshuvot Choshen Mishpat 1:219 rules that I cannot be stopped from causing others to be put in “dangerous situations” that are permitted because of Shomer Petaim. However, his argumentation only confirms my analysis within one of the possibilities above. He explicitly assumes like the Yam Shel Shlomo who rules that in cases of Shomer Petaim it is halachically as if there is no danger, so, in this case one does not have a choice and must do the milah. R. Unterman, without making such a diyuk, similarly rules that in cases of Shomer Petaim Hashem I can cause others to engage in these now permitted activites (Shevet MiYehuda 1:29).
However, the Ritva on this sugya takes the position that it is only mutar to do the milah, but not obligatory, as we cannot force you to engage in even this mildly dangerous activity. Nevertheless, one is allowed to. This despite the fact that the person in “danger” is the child, not the father calling the shots. This seems to provide proof that one can even hold that Shomer Petaim Hashem is only a heter, while still claiming that it is permitted to cause others to be put in similar “danger”, even against their will.
However, one could argue that the case of the milah is different. The primary mitzvah is on the father, and the child cannot make mitzvah or medical decisions for himself, by necessity. Perhaps, therefore, the father is permitted to act on behalf of the child, thereby allowing him to enter the child into a case of “permitted mild danger,” the may a medical proxy can make complex decisions on behalf of someone else. However, someone with no such responsibility may not be able to make that kind of call for someone else . While this seems plausible, I can find no proof that anyone holds this way. Anyone?