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Case:
BGHZ 34, 355 VI. Civil Senate (VI ZR 189/59) = NJW 1961, 655 = JZ 1961, 602
Date:
14 March 1961
Note:
with approving note by W. Flume
Translated by:
Translated by J.A. Weir
Copyright:
Professor B.S. Markesinis

The plaintiff in this claim for damages was involved in a motor accident when he was sixteen-and-a-half years old. Like the first defendant, then nearly twenty years old, he was an apprentice motor mechanic in a workshop in H. Every week they had to visit D in order to attend the local training college there. On 21 February 1957 they drove to school in a colleague’s Volkswagen. The first defendant, who was at the wheel, was the only one with a driving licence. In the lunch break he suggested to the plaintiff and to two other fellow apprentices, the second defendant and J, then nearly seventeen and seventeen-and-a-half years old respectively, that they should drive to V to have lunch with his parents. On the way there, the second defendant entreated the first defendant to allow him to drive the car but the first defendant refused because, like the plaintiff, he knew that the second defendant had no driving licence. On the way back, however, the second defendant renewed his entreaties and the first defendant relented and allowed him to take the wheel for a spell. They changed places with the motor still running. Though the road was quite steep, the second defendant drove down it at about 60 km per hour, and failed to reduce this speed a few hundred metres on where the road curved slightly to the left. He lost control of the car, and it crossed the highway and struck a tree. The second defendant suffered a cranial fracture, the first defendant a knock on the head, and J a bruise to the left eye. The plaintiff suffered brain damage and a severing of the left ocular nerve: vision in his left eye is reduced to about 10 per cent and is unlikely to improve.

The plaintiff alleged that he had warned the second defendant against driving, though only from fear of a police check.

Accepting that he was 20 per cent to blame, the plaintiff claims appropriate damages for pain and suffering from the defendants as common debtors, and seeks a decree that they are liable as common debtors for four-fifths of any harm he may suffer in the future.

The defendants urge that the claim be dismissed on the ground that the plaintiff was acting at his own risk: not only did he consent to the wheel being taken by the second defendant despite his having neither experience nor a licence, but he himself had even sought to drive and so put his companions at risk.

The Landgericht awarded DM 4000 as damages for pain and suffering and decreed that the defendants were liable as common debtors for two-thirds of any future harm suffered by the plaintiff.

On appeal by the defendants the Court of Appeal dismissed the plaintiff’s claim in its entirety. The plaintiff now appeals to this court. The judgment below is vacated and the case is remanded.

Reasons

I. The Court of Appeal held that there was no implied agreement which excluded the defendants’ liability in tort, any such agreement by a minor like the plaintiff being in any case invalid without the consent of his legal representative. But the court held that the defendants were nevertheless entitled to be relieved from liability on the ground that the plaintiff had been acting at his own risk. The plaintiff had sufficient insight, so the court found, to appreciate the clear risk involved in the second defendant’s taking over the wheel. Just as he himself had been ready to imperil his companions by driving the car, so it was in full knowledge of the risk that he had agreed to the second defendant’s attempting to drive despite his lack of skill and experience. Though he objected at first, this was only through fear of a police check, and even this objection he did not maintain. The accident was due exclusively to the second defendant’s being an inexperienced and incompetent driver. This being so, it would be contrary to Treu und Glauben to hold the defendants liable for the results once the risk materialized. Since it was reasonable that the defendants be released from liability, their release should not be prejudiced by the application of § 107 BGB, which need not be applied where there was a ‘community of danger among the young’, as here. So to hold was consistent with the view recently adopted by the courts, that the effect of a young person’s consent to surgery depends not on the law relating to contractual declarations but on his factual ability to appreciate the situation (BGHZ 29, 33).

II. We quite agree with the Court of Appeal that the defendants’ liability was not effectively excluded by contract. However, its observations on the doctrine of acting at one’s own risk require us to make a decision of principle.

At present lawyers speak of a person as acting at his own risk when, without any sufficient reason, he puts himself in a position of imminent danger although he is aware of the particular circumstances which make for the danger in question. If this risk results in injury, the question arises whether the injured party can claim damages from another person who would otherwise be liable, whether under the law of strict liability or under the rules of contract or tort law. At first the courts applied § 254 BGB in such cases unless they found an implicit contractual exclusion of liability, which they were very reluctant to do. The doctrine of acting at one’s own risk only became an independent force in litigation when the Reichsgericht used it to avoid imposing strict liability towards a victim who had consciously exposed himself, without any legal, professional, or moral obligation, to a hazard he might well have avoided (RGZ 130, 162). This was a way of avoiding the imposition of strict liability in cases to which the legislative reason for imposing strict liability did not seem to apply. The Reichsgericht adopted the idea that a conscious exposure of oneself to danger might amount to acting at one’s own risk in order to mitigate strict liability in accordance with the supposed purpose of the legislature. In so doing the Reichsgericht emphasized that when the defendant’s liability arose under § 823 BGB, the fact that the plaintiff had acted at his own risk need not necessarily lead to a dismissal of his claim for damages: in such a case there might be an apportionment under § 254 BGB which could take account of the particular facts (RGZ 130, 162, 169; see also RG JW 1911, 28).

Not until its judgment of 19 June 1933 (RGZ 141, 262) did the Reichsgericht . . . adopt the view that a person who rides in a vehicle with knowledge of special attendant dangers thereby consents to any personal injury which may arise therefrom during the journey. If the agreement was valid and relevant, it neutralized the illegal quality of the defendant’s conduct with the result that though he caused the harm, he was not liable for it. Such consent to an invasion of a legal interest was a declaration of will, needing to be received by its addressee and, if uttered by a person with limited legal capacity, valid, in view of its adverse effect, only if his statutory representative agreed to it. The Reichsgericht adhered to this view (RGZ 145, 390), and the Third Civil Senate of the Bundesgerichtshof adopted it in BGHZ 2, 159 (see also BGH VersR 1952, 420). This Senate has assumed the soundness of the doctrine that acting at one’s own risk is a complete defence, although in none of the cases it has decided were its requirements found to be satisfied. We permitted the plaintiff to appeal in this case because we wish to depart from the decisions of the Reichsgericht and the Bundesgerichtshof.

III. As long ago as 25 March 1958 (NJW 1958, 905), this Senate expressed doubts about the way of treating conscious self-imperilment introduced by the Reichsgericht in RGZ 141, 262, and scholars have increasingly objected to treating a person who ‘acts at his own risk’ as giving a consent to a possible invasion of a legal interest which operates as a justification. They stress that it is artificial and unrealistic to view the situation in this way, that it is inappropriate to employ the concept of the ‘legal act’, and that this construction tends to lead to unsatisfactory results [references omitted]. We agree with these criticisms and now depart from the doctrine of the Reichsgericht.

1. The commonest case involves carriage by an incompetent driver. Here it is clearly unrealistic to suppose that the passenger who is aware of the driver’s incapacity is consenting to the personal injuries which may arise during the journey. It is normally a case of conscious negligence rather than of conditional intention, to use a distinction which is drawn when one person injures someone else rather than himself: the passenger is aware of the danger, but hopes that it will not materialize. We blame him because in imperilling himself he is acting recklessly: it is normally a gross fiction to hold that such conduct by the passenger constitutes a consent to personal injury.

2. Furthermore, it is only within the rather narrow limits of §§ 134, 138 BGB and § 226a StGB that any such agreement could serve as a justification for the defendant’s conduct. Should the injury prove fatal, the defendant’s conduct clearly cannot be justified by any such agreement (BGHSt 4, 88, 93). And if the resulting personal injuries are serious, especially if they involve loss of vital organs, the victim’s agreement still cannot justify their infliction, since this is morally offensive and legally discountenanced, regardless of the victim’s consent (see BGHSt 6, 232, 234 [other references omitted]). Thus to treat putting oneself at risk as raising an issue of consent inevitably makes the legal outcome depend on the gravity of the harm, which for tort lawyers should be irrelevant. Furthermore, there is no need for any justification at all in cases of strict liability, since strict liability does not depend on the illegal nature of the conduct (GSZ in BGHZ 24, 21, 26).

3. Another unsatisfactory consequence of treating a person’s consent to the invasion of a legal interest as constituting a declaration of will is the requirement that it needs to be received and must therefore ‘reach’ the addressee. There can be no good reason for making the defendant’s liability depend on whether he knew or could have known that the victim was consciously putting himself at risk (compare the facts of the case before the Senate on 8 December 1954 (VersR 1955, 120)) . . .

4. Nor is the doctrine any better when the victim is under age. Why should liability towards minors, who are themselves capable of being liable in tort, depend on whether their statutory representative consents which is in practice extremely uncommon since normally the decisions involved are sudden and spontaneous?

5. In cases involving drunk-driving the view we now reject meant that whether there was a complete defence or a more elastic apportionment under § 254 BGB depended on whether the passenger, himself often drunk, was conscious of the risk or whether he had simply rendered himself incapable through gross negligence of appreciating it. This is a very subjective matter, and in cases like these where things happen very quickly it is hard to come to any firm conclusion on it. Thus even in the typical case the test which stems from RGZ 141, 262 proved impracticable: applying it led to unpredictable results.

6. We note finally that the view of the Reichsgericht leads to a difference in the way the illegality of an actor’s conduct is judged in private and in criminal law. In criminal law the victim’s conscious self-exposure to harm is not accorded the same justificatory force where personal injuries are negligently inflicted as it has been in private law since RGZ 141, 262 (see BGHSt 4, 88, 90 [other reference omitted]). Furthermore, in dealing with consent to an invasion of one’s corporeal integrity, the criminal law does not invoke the private law principles of Willenserklärung at all [reference omitted]. Thus so long as a person’s exposure of himself to danger is to be treated as a justificatory declaration of will, our legal system can never achieve a unitary method of judging the illegality of conduct.

IV. In the view of this Senate, the problem under discussion gives rise to issues of illegality and justification only when the victim’s conduct really and without any artificial construction amounts to a consent to an envisaged invasion of his legal interest. This may happen in certain dangerous sports (compare BGHSt 4, 88, 92), but in the common case before the courts today the sole question is almost always whether, and if so to what extent, a person’s liability in damages is affected by the fact that the victim had consciously exposed himself to the danger when it was imminent. If in such cases it seems more or less offensive that the damage should be shifted from the victim to the other party, that is because in claiming compensation the victim is acting in a manner inconsistent with prior conduct of his own and for which he is answerable. To go against one’s own act conflicts with the principle of Treu und Glauben, and it is this which makes it wrong for the victim to invoke the liability of the defendant without taking account of the fact that he himself consciously created or helped to create the dangerous situation which enabled the defendant’s contribution to it to cause the harm. Once this is realized, we see that the correct way to deal with the problem is by means of the value-judgment expressed in § 254 BGB. This rule, which provides that a defendant’s liability may be affected, or even extinguished, if conduct for which the victim is responsible, especially his capricious exposure of himself to danger, contributes to the harm, is essentially based on the concept of inconsistent behaviour which is rooted in § 242 BGB. Specific application of this principle to damages law is found in § 254 BGB [references omitted]. Thus if a judge, in apportioning responsibility under § 254 BGB, gave great weight to the views here put forward, he would not be invoking any consideration extraneous to that rule; on the contrary, if he failed to take sufficient account of the victim’s conscious exposure of himself to the danger and his inconsistency of conduct, the judge would not be doing justice to the particular circumstances in which the harm, and responsibility for it, arose.

It is true that if the commonest cases of self-exposure to danger are to be dealt with under § 254 BGB, we will be abandoning the familiar rigid principle that to act in the knowledge of specific existing danger is to act at one’s own risk and thus to forfeit one’s claim to damages. But in our view it will do nothing but good if this principle is abandoned. Even the practice of the courts hitherto has failed to give effect to this principle in a full and logical manner; they have been forced to adopt unrealistic exceptions in order to limit its effect. Furthermore the courts have tended to set almost impossibly stringent requirements for the proof of the plaintiff’s knowledge of the special source of danger, simply because they wished to be free to apply § 254 BGB, which they believed to be more appropriate.

As to the question when liability should be excluded in a case where the victim has exposed himself to danger, and when there should simply be a reduction of the damages, we are of opinion that no precise rule can be laid down. The types of case involving conscious self-endangerment are so various that clarity and certainty of law could not be achieved by any inflexible and uniform rule. Certainly, when a victim has clear knowledge of a specific danger and exposes himself to it without any good reason and is hurt, or indeed when he helps to create the dangerous situation, there will be good reason to relieve the defendant of all liability. But it would be one-sided to concentrate, to the exclusion of all the other features of the individual case, on the fact that the plaintiff voluntarily endangered himself. Other factors may be of great weight, for instance how the danger arose, how much the defendant was to blame for the existence and actualization of the risk, what the relationship between the parties was, and how obvious the danger was (see also the decision of this Senate on 2 December 1958 (VersR 1959, 368)). A person’s psychological state is very hard to ascertain, and a decision which focused exclusively on the plaintiff’s attitude at a particular moment of time would often be unrealistic and unfair. § 254 BGB permits the trial judge to do justice in the particular circumstances of the individual case in a judicially responsible manner, and he will be assisted in making a just and proper exercise of his discretion in applying this provision if he pays attention to the principles evolved by the courts in relation thereto and to the principle of inconsistency in conduct.

The Third Civil Senate has stated that it no longer wishes to adhere to the doctrine of ‘acting at one’s own risk’ as laid down in BGHZ 2, 159, so it is unnecessary to convoke the Great Senate for Civil Matters under § 136 GVG.

V. It is well-established law that if the victim is a minor, his contributory fault under § 254 BGB is to be judged in accordance with the relevant principles of delictual law. If a sixteen-and-a-half-year-old like the plaintiff is personally at fault in consciously putting himself at risk, one must therefore look to his actual ability to recognize the dangerous nature of his conduct and to behave accordingly. To this extent we agree with the Court of Appeal. But as has been explained in IV, above, we cannot follow the Court of Appeal in holding that the defendants must be released from liability just because the plaintiff consciously endangered himself. This very case shows how unjust a result may follow from undue concentration on this point.

The following factors in particular should be noted. It is true that the plaintiff’s failure to maintain his objection to the second defendant’s taking over the wheel counts against him, as does the fact that he himself was ready to take the wheel in lieu of the second defendant and so imperil his fellow-travellers. On the other hand, the plaintiff was not the first to suggest that someone other than the first defendant should drive. In view of the way young people behave, the conduct of the plaintiff as a whole, while certainly culpable, is not incomprehensible. Young people like the plaintiff are especially ductile if an older comrade sets a bad example. In the circumstances, the plaintiff’s fault in remaining in the vehicle when the second defendant was driving it certainly cannot be described as gross. The second defendant, by contrast, was the origin of the suggestion that an unqualified person should drive, and it was his unreasonable and incompetent driving which caused this serious accident. The first defendant was especially to blame, for it was he who had control of the car; furthermore, as the only person with a driving licence, he must have known the probable consequences of letting the second defendant drive; finally, he was the oldest of the group and should have asserted himself more strenuously.

These observations are not intended to prejudge the final decision which in view of the change in the law and the possibility of further evidence must necessarily be left to the trial judge. We make them only in order to show that on the evidence so far adduced it would be wrong that the defendants, who have apparently suffered only slight injuries, should be entirely released from liability to the plaintiff, who is maimed for life. This case is entirely different from the hypothetical case put by the Court of Appeal, where three youths of the same age who do not know how to drive and have no licence take turns at driving a car they have stolen and are badly injured in an accident while one of them is at the wheel. There is really no comparison between the situations. Nor does the very vague idea of ‘community of danger among the young’, which weighed with the Court of Appeal, provide any legal basis for refusing to hold the defendants liable to the plaintiff.

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