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BGH NJW 1952, 1010 III. Civil Senate (III ZR 100/51) = VersR 1952, 352
24 April 1952
Professor B.S. Markesinis
F.H. Lawson and B.S. Markesinis

The husband/father of the plaintiffs was in 1937 struck by an automobile belonging to the defendant. In consequence of the accident, his right leg was amputated; he bore therefore an artificial leg and had to walk with the aid of two sticks. In a lawsuit it was established that the defendant was obliged as a joint debtor to make good all the damage arising from the accident of 1 February 1937.

In 1945 the husband/father of the plaintiffs was injured by artillery fire and died of that injury. He used at the time in question to set out in the evening to go to a bunker with the plaintiffs. In the afternoon of 31 March 1945 the place lay under artillery fire. The plaintiffs’ family first stayed at home, and only when the firing stopped, set out for the bunker. While the three of them were on their way, the firing suddenly started up again. The first plaintiff ran to a house where he took shelter. The second plaintiff hurried to the bunker. The husband/father of the plaintiffs set out on the road but could cover the ground only slowly because of his lameness. Before he reached either a house or the bunker he was injured by a shell fragment.

The plaintiffs, considering the death of their husband/father as a further consequence of the 1937 automobile accident, demanded of the defendant compensation for the support they were deprived of in consequence of the death.


Even if the laming of the first plaintiff’s husband is looked upon as a conditio sine qua non (BGHZ 2, 138, 140 ff. = NJW 51, 711) for the injury from the shell fragment, it cannot be the basis for the defendant’s liability, for there is no adequate causal connection between the laming due to the accident and the death resulting from the artillery fire. An adequate connection exists only ‘if according to general experience and not under especially peculiar, quite improbable circumstances, not to be contemplated according to the regular course of things, were apt to produce a consequence’ (RGZ 113, 126, 127 and the later constant case-law of the RG). Whether there is ‘adequacy’ is not really a question of causation but of setting the limits within which liability can equitably be attributed to the originator of the condition. Since in so doing we are concerned with an assessment which of its nature affords some room for judicial discretion, an element of uncertainty cannot be excluded, especially at the lower limit, in deciding whether the condition favoured the result to an appreciable degree. Such an uncertainty cannot be avoided either by applying other important legal concepts such as offending against good morals, important reason and, above all, against the principle of good faith. Only the idea of adequate causation can provide a sufficient guide. The question whether and in what measure a causal connection induces liability can never be exhaustively answered by abstract rules but can be decided in doubtful cases only by the judge according to his unfettered discretion having regard to all the circumstances; and only when it is borne in mind that the doctrine of adequate causation as a way of limiting liability is based on § 242 BGB, will the danger of schematizing the formula be avoided and correct results obtained (BGHZ 3, 261, 267; Lindenmaier in Zeitschrift für das gesamte Handelsrecht und Konkursrecht 113, 239–43).

In agreement with both courts below, an adequate causation must be rejected, without any need to go into the formulations set out in the books, which are concerned with whether foreseeability of the consequence must be required and by what rules it must be determined. ‘Adequacy’ is here excluded because the laming, by its general nature, did not enhance in what experience would show to be an appreciable degree, the probability of being struck by artillery fire. For a causal connection exists in a legal sense, as has already been mentioned, only when the condition originated by the person doing the damage is in a general way apt to produce the damage in question—especially peculiar and quite unusual circumstances which would not be taken into account in the regular course of things, being excluded. In examining, therefore, the facts, it must be determined whether a ‘general’ favourable tendency exists, but a tendency will be disregarded which is so considerable that no account would be taken of it in ordinary experience (Lindenmaier, op. cit., 227; Enneccerus-Lehmann, Schuldrecht (13th edn., 1950) 63, fn. 6). Such a consequence, outside ordinary probability, must be treated as accidental and not imputable. That is so in the present case because a laming as such cannot in any case according to general experience be regarded as enhancing to an appreciable extent the danger of being wounded. Shell fire may make anyone, even healthy persons, liable to be hit. It is in no way foreseeable how hostile fire may be directed. For the civil population being struck by a shell was a ‘new and independent event’ of a purely accidental character. The danger might be avoided to a certain extent by seeking shelter at once. Whether it was generally ‘right’ to run to a neighbouring house or a bunker could be at least doubtful. The probability that the plaintiffs could be hit, when they ran to seek shelter, was, according to general experience, not less than the danger for the injured party in case he remained standing or lying down. In view of this ‘accidental effect’ of a few shots happening at short intervals, running away might have proved ‘wrong’ and standing or lying down ‘right’. In view of the combinations of purely accidental conditions the injury to the first plaintiff’s husband from shell fragments can no longer be regarded as an imputable consequence of the 1937 traffic accident.

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