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Case:
BGH MDR 1957, 214 VI. Civil Senate
Date:
11 November 1956
Note:
with an approving note by Esser
Translated by:
Von Mehren and Gordley
Copyright:
Professor B.S. Markesinis

In February 1952, as the plaintiff was leaving a house on S Street in Hamburg where he had been visiting his sister, he slipped on a walk which bordered the house and was separated from the sidewalk of S Street by strips of greenery, and suffered a compound fracture of the upper thigh. He contends that his fall was caused by a slippery patch of snow. He claims the defendant is liable for his accident as owner of the house and sidewalk because of a violation of a duty to sand the walk. The Landgericht rejected the claim. The appellate court held the claim for damages to be legally grounded. It granted the demand for a fixed sum of money and periodic payments, provided the claim was not paid by a publicly owned insurer. It also entered a judgment subject to the same reservation, declaring the defendant to be liable.

The Revision is without success.

Reasons

The appellate court found that it had been demonstrated that the walk had a slippery patch of snow and had not been sanded and that the defendant was under a duty to pay compensation under § 823 BGB because, as owner of the walk which was used by the general public and, in particular, by the residents of neighbouring houses and the customers of three stores located in them, the defendant had a duty to clean and sand the sidewalk according to the provisions of the Hamburg Road Cleaning Ordinance of 10 January, 1940 [reference] and regulations made under this Act on the same day [reference]; and that the responsibility falls on the defendant for not having taken care to fulfil the duty to sand the walk in the required way.

[The court rejects the defendant’s contention that sanding the sidewalk was not required on the day of the accident under the Act and regulations just cited, because weather conditions that day would have made the sanding of the walk useless.]

Moreover, the conclusion that the defendant committed a fault stands up against legal scrutiny.

In this regard, the appellate court maintained that the assignment of the duty to clean and sand the walk to a married couple, W, living on the ground floor by a contract of lease had legal effect only in relations between the defendant and these lessees. The prerequisites for finding that the married couple W had a duty with public law effects to clean and sand the sidewalk under the provisions of the Road Cleaning Ordinance are absent. Therefore, as what is involved is a violation of a duty required of the defendant itself, and as the plaintiff’s claim for compensation is based on § 831 BGB, the case does not turn on proof of exoneration under § 831 BGB. The defendant, indeed, is a large enterprise, which must employ the help of others to fulfil its duty to sand. The appellate court did not reject that the defendant had entrusted the lessees of the buildings with this task. But it correctly took as its premise that the defendant must organize the carrying out of the duty to sand so as to guarantee that it will be reliably performed.

The appellate court found that the defendant apparently placed the duty to clean and sand walks on the inhabitants of the ground floors of its buildings by simply inserting such provisions in form contracts of lease, and that the married couple W became obligated in this way without regard to whether the wife W, after the death of her husband and after attaining the age of seventy-six, still possessed the physical ability to do the cleaning. The appellate court took the view that the method used by the defendant for the employment of persons for sanding the walk does not satisfy the requirements imposed on him.

The Revision contests this view as too extensive, arguing that the customary practice in Germany is for the lessee living on the ground floor to be responsible for the performance of the duty to clean and sand the sidewalks, and that an objection to this practice should not be made if the owner of the building demonstrates that the lessee adequately performs this duty by himself or with the help of a third person.

The question can be left open whether placing the duty to clean and sand the sidewalks on the person living on the ground floor by a form contract of lease is consistent with the content of the duty of care in selecting persons to sand the sidewalks, a duty which concerns the building owner in the area of its responsibility under § 823 BGB to no less extent than the duty of care which falls on the employer under § 831 BGB concerning the selection of an employee. The owner of the building has at the least a duty of supervision which is sufficiently broad for it to be required to ensure that the lessee actually performs—or has another perform—the obligations assigned the lessee in a regular manner. The duty of general supervision rests on one who makes a careful selection of persons to whom he, as the one responsible for fulfilling a general duty, assigns the actual performance of this duty. This applies particularly and in very large measure when regard to the competence and reliability of these persons was not a decisive factor at the time they were employed.

According to the findings of the appellate court as to the factual situation, the defendant failed to provide the supervision required of it. The measures taken by the defendant consisted of the employment of a building manager for three different blocks of housing, located six to ten minutes apart and containing a total of thirty separate buildings. It need hardly be argued here that, as a general rule, it must be held insufficient for an enterprise leasing houses to employ only one man for a housing area of this size to supervise the performance of the duty to clean and sand walks by lessees. The manner in which Mrs W performed the duty assigned her of cleaning and sanding the walks had given cause for complaints before the day of the accident—that the place where the accident occurred was often not adequately sanded. The defendant could not have remained in ignorance of this if it had organized supervision in the manner required by the duty just described to provide oversight. As a result, the conclusion of the appellate court that the plaintiff’s accident was caused by the neglect of the defendant must be accepted. The defendant is accordingly liable on the basis of §§ 831 and 823 BGB.

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