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Case:
BGHZ 24, 97VII. Civil Senate(VII ZR 212/56)
Date:
11 April 1957
Note:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mrs Irene Snook
Copyright:
Professor B.S. Markesinis

Reasons

According to § 17 I of the Rules for the Prevention of Accidents issued by the Bavarian Builders’ Confederation in the wording of 1 July 1941, then in force, unauthorized persons were to be prohibited by notices from entering a building site. The District Court has found that this was done in the present case. Thereby the builders involved in the conversion of the house have complied with their duty to safeguard the public in general [Verkehrssicherungspflicht] in so far as third persons are concerned who were not employed on the building site. By means of the warning notices they indicated in a usual and generally comprehensible way that the parts of the building which were being converted were barred to ‘unauthorized persons’ in view of the danger connected with the building operations. The plaintiff, too, was to be regarded as an unauthorized person, although she came to speak to her husband who was employed on the site. This follows clearly from § 17 II of the Rules for the Prevention of Accidents according to which even insured persons are only permitted to visit building sites if this is necessary in the performance of tasks allotted to them.

No need existed according to § 17 I of the Rules for the Prevention of Accidents cited above to protect the building site against the entry of third parties otherwise than by the erection of warning notices. In particular it was unnecessary to specify particular rooms in the course of conversion or to indicate the particular dangers which threatened unauthorized visitors, for they came within the danger zone if they obeyed the general prohibition of entry. The plaintiff cannot therefore base her claim on § 70 of the Rules for the Prevention of Accidents which requires special safety measures for rooms with ceilings or floors which are not load-bearing; these provisions exist to protect persons who are endangered while entering the room with permission, i.e. primarily workers operating there. It is neither the purpose of the Rules for the Prevention of Accidents to protect unauthorized visitors against the many dangers lurking on a building site, nor can the owner or the builders employed there normally do so or be expected to do so. It is unnecessary to determine here whether stricter requirements exist in special circumstances, as for instance if children play frequently near a building site, for the plaintiff is an adult who could understand the meaning of the warning notices on the building site and who did so, as the Court of Appeal found, despite her simple-mindedness.

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