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Case:
OLG Düsseldorf Vers 1997, 314
Date:
14 December 1995
Note:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Raymond Youngs
Copyright:
Professor B.S. Markesinis

Reasons:

Even if it is assumed in favour of the claimant that his car (which was parked in the parking place near the playground of the primary school in H) was damaged on the 5th March 1992 during school break by stones thrown by pupils from the playground, he does not have a claim to compensation for the damage in accordance with § 839 of the BGB in combination with Art 34 of the Basic Law.

In principle it is necessary to proceed on the basis that the teaching staff of the school have an official duty to supervise the children entrusted to them so that third parties are protected from harm as far as possible. This official duty formulated in public law corresponds in its content to the general duty of supervision in under § 832 of the BGB.

The extent of the supervision required depends on the age, individuality and character of the children and the forseeability of the behaviour which causes the harm as well as on what the persons under the duty to supervise can be expected to do at the time. The decisive issue in the end is what a rational person under a duty of supervision ought sensibly to be required to do in the actual case, in order to prevent harm to third parties by the child (references omitted). Proceeding on this basis, a violation of the teachers' duty to supervise cannot be established.

Primary school pupils are usually aged from six to ten years. It can be assumed that these age groups already know the danger of harm to persons or property from throwing stones. Experience indicates that this is repeatedly impressed on children long before they reach school age by those responsible for their upbringing, and linked with a ban on "games" of this kind. The teaching staff can rely initially on such instruction having occurred as a rule in the parental home. If children still throw stones within the school premises, the teachers should discuss - again - with the pupils the dangers arising from this, and prohibit it, as occurred after the - earlier - incident in January 1992 in which the claimant's vehicle had been damaged by a certain pupil throwing stones, according to the statement by the defendant state (which has not been disputed). Increased supervision of the pupil concerned for a certain period may also be indicated.

Constant observation of all the children who are in the area of the sand pit, the Indian fort and the green area during the break so as to make it impossible for them to throw stones, cannot, however, be expected of those with the duty to supervise. Permanent supervision everywhere is not even necessary for children of kindergarten age, and certainly not at school age. In this regard it is recognised by the case law that children of only four years of age can stay in a play or sports area alone without constant supervision and only need occasional observation (reference omitted), that a four year old child may play on the pavement (reference omitted), that a six year old child of normal disposition only needs to be watched occasionally when playing outside the house, and that eight to nine year old children may be allowed to play out of doors without supervision even in an open space which does not enable direct intervention by the parents (reference omitted). The extent of the supervision must harmonise with the educational objective and the growing capacities of the children and their developing need to learn to act independently and responsibly. Permanent supervision would interfere with this desired development of the personality; therefore children of this age may and must, within the framework of responsible education, be allowed free space in which immediate intervention by the person with the duty to supervise is no longer possible...

Putting up a net to prevent the throwing of stones was not necessary (details are given).

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