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Case:
BAGE 70, 337 Großer Senat (GS 1/92) = NJW 1993, 1732 = JZ 1993, 908 = NZA 1993, 547
Date:
20 April 1971
Copyright:
Professor B.S. Markesinis

On 8 July 1964 the first defendant’s excavator, used to dig a ditch (for the purpose of moving a new electric-light cable), hit the pipe across the street which connected the house of the plaintiff with the main gas pipeline. Gas escaping into the cellar of the house caused an explosion which damaged the house so severely that it had to be pulled down. The plaintiff sued the defendants as joint and several debtors for compensation in respect of the damage to the house and to his business. The claim against the first defendant was based on his own culpable act (§§ 31, 823 I BGB) as well as on the culpable acts of the second and third defendants (§ 831 BGB).

The Court of Appeal of Koblenz rejected the claim. A second appeal was successful for the following

Reasons

The Court of Appeal denies that the first defendant as a legal entity is liable under §§ 31, 823 I BGB and holds that it had discharged the burden of proof required to exonerate it from liability under § 831 BGB for the second defendant, the local construction manager, and the third defendant, the chief supervisor of excavations, having regard to what it treats as undisputed pleadings.

1. The Court of Appeal is of the opinion that the second defendant, having been in charge of the local construction works, is liable for the occurrence at the place of construction.

As a graduate civil engineer with considerable experience in road building he had the necessary qualifications to carry out tasks on his own in accordance with the relevant technical guide-lines and restrictions as well as those provided by his firm. He had been in charge of big construction works, showing great circumspection, and was familiar with all construction operations and safety measures connected therewith. He had executed conscientiously many construction works of the first defendant on his own and had never given cause for complaint. The managers and building specialists of the customer of the first defendant regarded him as a particularly reliable and conscientious specialist.

The third defendant, too, who had been in the employ of the first defendant for twenty-seven years, had much experience in civil engineering and had excelled in training younger leading construction workers.

2. These statements do not suffice, however, to show that the first defendant has discharged the burden of proof incumbent upon him for exonerating himself. Instead, the undisputed pleadings themselves disclose that the first defendant’s organization is to blame.

(a) According to the practice of the highest courts and to the dominant view in the literature, civil engineers undertaking construction work on public roads of cities must take into account the existence of subterranean service ducts and must exercise the utmost caution in the knowledge of the exceedingly great danger which can be caused if electricity, gas, water, or telephone lines are damaged. The life and health of human beings is imperilled if such works are carried out inexpertly, especially through contact with power cables or the escape of gas. Moreover, the failure of the supply lines often causes considerable damage to industrial and commercial enterprises, to hospitals and others. Consequently, civil engineers whose work brings them into contact with supply lines, especially by the use of excavators and similar heavy gear, are under a particularly heavy duty to make enquiries and to take safety measures concerning any existing supply lines; a civil engineer is obliged to obtain the information within the limits of general technical experience which is necessary for the safe execution of the operations to be carried out [reference].

In this connection a civil engineer is bound, in particular, to acquaint himself adequately with the lay-out of the gas pipes as well as the other supply lines by inquiring at the place where the relevant reliable details are available.

Since supply lines are normally laid down and maintained without the collaboration of the communal building authority, it is not sufficient to make enquiries with the latter; instead, information must normally be obtained from the competent supplier of the services. In a number of cases evidence of this can be found, as is shown by the cable information leaflet of the electricity works of Koblenz . . . These instructions do not have the character of legal rules. They show, however, the extent of the duty to safeguard the public in general (§ 823 I BGB) incumbent upon civil engineers using excavators. If the necessary information cannot be obtained by inspecting the documents in the possession of the supplier of the service, the position of the supply lines must be ascertained by other means before the excavators begin their work . . .

In general, an inspection of these maps will provide the civil engineering enterprise with a sufficient amount of information concerning the position of the subterranean lines and individual connections with houses . . .

It must not be decided either whether their duty to obtain information, which the first defendant had assumed, additionally by contract [reference] is always incumbent upon the management itself of the civil engineering enterprise [references]. In the case of enterprises which are as big as the first defendant, this may be difficult, even if the manager of the branch in K should be regarded as its statutory representative. In any event, if the gathering of information is delegated to employees, the civil engineering enterprise must give clear, emphatic instructions to the local construction manager and to the supervising foreman when and how they must ascertain the position and extension of the supply lines, including the individual connections of houses on the basis of reliable documentation by the supply undertakings in question. In view of the particularly grave danger if gas, water, and power installations are damaged, the instructions must point out imperatively not to be satisfied with oral information of a general kind not containing specific figures—especially as to the depth at which the ducts are located—which is clearly not based on maps.

Such a duty to ascertain the location of the existing supply lines must be said to exist where the excavations involve the creation of a ditch to a depth of 0.60 metres, especially if it is to run under the pavement and thus in the neighbourhood of connections with houses; experience shows that the latter run at a lesser depth than the main ducts.

The duty to make enquiries existed even if information was supplied by . . . on the occasion of a previous examination. When as a result of the extension of the order for excavations—as it was in the present case—the danger is increased, the additional operation requires further information if on the previous occasion only oral information of a general kind was provided without precise details and also clearly without the assistance of maps or other papers. Moreover, the first defendant should have given general instructions to the two other defendants concerning the need for a renewed investigation if an additional order of this kind is received.

The defendant failed to give instructions dealing with the various aspects as was required here.

The first defendant would not be exonerated if, as he contends, the connection of the gas pipe with the house was located at a depth of 45 centimetres. It is not true that if a ditch is dug by an excavator to a depth of 60 centimetres, the possibility of hitting a gas pipe could be disregarded altogether . . . [references]. The first defendant should therefore have considered the possibility that gas pipes, particularly connections with houses, may be located at a depth much less than one metre.

(b) The failure to give the necessary instructions to the second and third defendants also constituted the cause of the damage which occurred . . .

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