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Case:
BGH VersR 1979, 225 Judgment of the Bundesgerichtshof of the 2. 11. 1978 (III ZR 183/76, Frankfurt/M)
Date:
02 November 1978
Translated by:
Raymond Youngs
Copyright:
Professor B. S. Markesinis

On the morning of the 13th July 1972 the ministerial team leader L had a business meeting with the chief executive officer W at the airport company in C about the co-ordination of air traffic control between the gliding business on D hill and the air traffic from and to C. With the permission of his superior, L used his own car for the necessary journey. On the return journey on the federal motorway at about 16.10 hours, and travelling in the overtaking lane at a speed of about 120 km/h, he came into a gentle curve to the left when positioned too far to the right, and his car collided with a lorry travelling on the right hand lane. W suffered a severe skull injury and a broken upper jaw in this accident. He underwent in-patient treatment until the 5th September and from the 23rd October until the 2nd December 1972. He was not fit for work until the 3rd March 1973, and after that only partially.

The claimant's costs for accident care services for W ran to 76,911.84 DM. Further services are expected. W transferred his claims against L and the defendant to the claimant state (Land).

The claimant demanded from the defendant, the liability insurer of L, on the basis of his own and the transferred rights, the payment of 76,911.84 DM together with interest, and applied for a declaration as to the defendant's duty also to reimburse those accident care services for W which he has adduced after the action has commenced or will adduce in future.

The defendant applied for rejection of the claim.

The Landgericht allowed the claim and the OLG rejected it. The claimant’s appeal in law was unsuccessful.

Grounds:

Personal fault-based liability on the part of L (and therefore also, according to § 3 nos 1 and 2 of the PflVG (Compulsory Insurance Act), of his liability insurer, the defendant) to the claimant (as the transferee of the rights of the injured official) for the physical injury to the accompanying official W caused in an business related journey is excluded according to the principles of official liability (Art 34 of the Basic Law, § 839 of the BGB) as the appeal court has correctly legally explained.

By W’s business journey to the C airport and back on the occasion of the business meeting at the airport company for the co-ordination of air traffic control between the glider business on D hill and the air traffic from and to C, L exercised a public office entrusted to him. Responsibility for the violation of an official duty to a third party in the exercise of this office (and therefore also within the scope of the business journey) consequently falls on the claimant who entrusted the office to him.

1. It is recognised in the Senate's case law that participation for business purposes by an official (officeholder, officer) in general road traffic, even without utilisation of particular special rights (§ 35 of the StVO (Road Traffic Order)), can be part of the exercise of a public office. The actions of an official are accordingly to be rated as the "exercise of a public office" whenever the real objective in the sense of which he was acting is within the area of sovereign activity, and such a close and external connection exists between the objective and the action causing harm that this action is categorised within the area of sovereign activity (references omitted). The Senate also adhered to this case law in its decision about the inapplicability of § 839(1) sentence 2 of the BGB in the case of participation in general road traffic for business purposes (reference omitted). On the one hand, as the Senate has explained in this decision, reference to the general provisions in tort law would lead to consequences in the law relating to the state (officials) and insurance which would hardly be calculable and would be detrimental to legal certainty. On the other hand, the principle, which has precedence over § 839(1) sentence 2 of the BGB, of the equal treatment in liability law of participants in road traffic as far as possible (and of the legal entities liable for them) can, in the case of official liability under Art 34 of the Basic Law and § 839 of the BGB, compensate for disadvantages to the victim and a possible second wrongdoer.

This principle, which follows from the development of an independent liability system in road traffic law and does not objectively exclude limitations of liability, is not inconsistent with the application of official liability provisions orientated to the meaning and purpose of Art 34 of the Basic Law as the basis of the claim in the sense of the Senate's case law so far. The Senate has also made that clear in the decision cited. Besides this, the legal entity in respect of the organisation has extensive control over the determination of the prerequisites and boundaries of a “business matter”. Contrary to the view of the appeal in law, there is therefore no cause for the senate, even in the case to be decided, to understand the concept of the exercise of a public office in a narrower sense.

2 a) Preventing dangers for the safety of air traffic is one of the tasks which the state fulfils in accordance with public law (§§ 29, 31 of the LuftVG (Air Traffic Act)). The co-ordination of air traffic control falls within this area of sovereign tasks (reference omitted). L's business journey to the airport and back was for the purpose of this co-ordination and therefore, according to its objective, the fulfilment of a sovereign task.

b) There existed such a close external and internal connection between the journey in which the accident occurred, for which L was to blame, and its sovereign objective, that the journey must count as part of the fulfilment of the sovereign task. In this context it is not a question of whether the official was driving a business vehicle, an "official's own" car or an "own private" car (references omitted). A business journey undertaken by use of a private car for fulfilling a sovereign task is to be rated as the exercise of a public office in the sense of Art 34 of the Basic Law if the choice of this method of transport was required for sensible realisation of the sovereign goal (references omitted)...

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