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Case:
BGH NJW 1996, 1533
Date:
12 March 1996
Note:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mr Raymond Youngs
Copyright:
Professor B. S. Markesinis

Facts:

The claimant Land ("the claimant") is suing the defendant (on the basis of a right acquired by subrogation from the police officer W) for costs of medical treatment (77,572.73 DM) salary (67,191.43 DM) and damaged uniform (300 DM). The police officers W and M had brought the defendant (then nearly 17 years old) and Ü (also a juvenile) before a magistrate. They had been arrested on suspicion of car break-ins and house thefts. They had numerous previous convictions. After their judicial examination, they escaped through a window about 4 metres above the ground on the first floor of the court building. Ü jumped first. M ran down the stairs in pursuit but W ran to the window. The claimant says he could have caught the defendant there, but the defendant pulled him down with him. The defendant claims that he was about 10 metres away from the building when W jumped after him. Ü was uninjured but the defendant broke his arm. W fractured both legs. He was treated in hospital for about 6 months,and was unfit for work for about a year and a half altogether.

The Landgericht allowed the claim. The appeal of the defendant was unsuccessful. His appeal in law led to quashing and reference back.

Reasons:

I. The appeal court left undecided the question of whether the defendant pulled W down with him through the window opening, or whether W jumped after the defendant. Even in the latter case it considered that the defendant would be obliged to provide compensation for harm under § 823 (1) of the BGB in combination with § 95 of the NdsBG. This was because W would then have been provoked by the defendant, in such a way as to give rise to liability, to jump after him. The defendant should in all the circumstances have reckoned on the police officer jumping after him. Admittedly, W also laid himself open to the accusation of negligence, as he must have known that he was exposing himself to a substantial risk by jumping from a height of 4 metres. But this did not lead to a limitation of the defendant's liability, becausehe had created the quite decisive cause of W's injury.

II. The appeal court judgment does not withstand the arguments against it in the appeal in law in every respect. On the basis of the defendant's claim, assumed by the appeal court to be correct, that W jumped after him through the window opening when he was escaping, the appeal court's view that W's injuries arising from the jump were to be attributed to the defendant in liability law admittedly reveals no error of law. But the appeal court's reasoning, that W was not guilty of any contributory fault which would affect the outcome of the case is not legally tenable.

1. According to the constant case law of the Senate, someone who by his reprehensible conduct provokes another person to behaviour which endangers that other person can be obliged in tort law to provide compensation to him for the harm which has arisen as a consequence of the risk which was increased by the provocation (references omitted). The claimant's voluntary decision must however be based on motivation which deserves approval at least to some extent. The Senate has found tortious liability on such a basis, in particular in cases in which someone seeks to escape from arrest, or provisional arrest, by police officers, or other persons authorised to make an arrest, by flight. The flight has provoked these persons in a reprehensible manner to a pursuit which endangers them and in which they have then suffered harm because of the increased risk (references omitted). In these kinds of cases, motivation deserving approval causing the pursuer to rush after the fugitive in spite of the special associated dangers, can, as the Senate has repeatedly emphasised, can be based, amongst other things, on the official duties of the officer responsible for guarding the fugitive (references omitted). The Senate adheres to this case law.

a) The appeal in law unsuccessfully objects (referring to Steffen [reference omitted]) to the fact that, in cases of the kind present here, the risk associated with the pursuit by the police officer is part of the risks of his employment commitment, and that duties to compensate for harm cannot therefore be based on the behaviour of the fugitive. Undoubtedly for a police officer, the risk involved in the employment commitment covers the "normal" risk of injury which is not especially based on the circumstances of the pursuit (and therefore is part of the general risks of life) and the harm which may result to the pursuer. For a police officer therefore there may be no transfer of the risks to the escaping criminal unless the necessary internal connection with the pursuit exists (references omitted). On the question of transferring to the fugitive an "increased" risk associated with pursuit, (and the case in dispute is only about the realisation of this) it admittedly must be borne in mind that an officer whose official tasks include pursuing criminals in the public interest may feel himself called on to undertake greater risks, in his efforts to fulfil his duty carefully to a greater extent than other people (reference omitted). But, in the Senate's view, this does not lead, when the necessary boundary is drawn between the areas of risk of the pursuer and the pursued, to an unreasonable transfer of risks to the fugitive, if he knows that his pursuer, or potential pursuer, is a person whose job requires him to act in this way. This is because the fugitive must in this case take into account that the pursuer may undertake a higher risk and this may possibly result in the fugitive having to assume an increased responsibility. He can take that into account by behaving in a way which prevents such risks arising. Admittedly on a just division of the risks of a pursuit, it should not be forgotten that the transfer of the increased risk will not lead to the fugitive being liable for the realisation of those dangers to which it was completely inappropriate for the pursuing officer to expose himself (references omitted). The assumption of responsibility for physical injury which arose from increased risk of this kind would not be covered by theprotective purpose of § 823 (1) of the BGB.

Whether and to what extent an escaping criminal or suspect has accordingly to bear an increased risk of pursuit is determined by the peculiarities of each individual case; the prerequisites for a division of loss in accordance with § 254 of the BGB can also be fulfilled here. This will need more precise application in the case in question at a later juncture. It must however be emphasised here that, contrary to the view of the appeal in law, even with officers (in particular police officers), the risk they bear because of their work commitment does not exclude the transfer of the increased risk associatedwith pursuit to a fugitive.

b) The appeal in law argues that the fugitive, could not be made responsible for harm which befell his pursuer during the pursuit, because action in one's own interest is not criminal. This objection is misconceived. Admittedly a criminal has no legal duty to give himself up to criminal prosecution. But the ground for civil law liability does not lie in the escape as such, as the appeal in law in the end does not fail to recognise. It is based instead on the fact that the fugitive, by the manner of his flight, has in a reprehensible manner provoked the pursuer to a reaction which endangers himself. The conduct of the fugitive which is contrary to duty consists in this pressure at a psychological level, causing the decision to make a pursuit which is required by duty (or which is at any rate desired by the legal order) with the special potential for danger which it holds (references omitted).

2. In the case in dispute, the factual findings of the appeal court support its legal assessment that W's injuries caused by the pursuit are objectively to be attributed to the defendant.

a) Admittedly (and the appeal in law uses this as an argument) the Senate making the decision in its judgment of the 13th January 1976 (reference omitted) approved the decision at previous instance in that case, that a juvenile sought for the serving of a weekend detention who fled from a toilet window situated at a height of 4.05 metres did not have to assume liability for the fracture of the heel bone of a police officer who leapt after him, which this officer had sustained on impact with the asphalt yard. But this is not inconsistent with an affirmation of the defendant's liability in the present case. For one thing, the facts of each case differ. Apart from the fact that the appeal court did not establish the presence here of an asphalt or similar hard landing surface, there is a substantial difference from the above mentioned Senate's judgment. In the present case it was not merely a matter of arresting a juvenile whose home and place of residence were known for the serving of a weekend detention, but of resolving and punishing serious crimes, namely breaking into cars and house theft. As the two persons arrested had been punished for such crimes on numerous occasions, the commission of further crimes of the same kind was likely following a successful escape. The appropriate relationship between purpose and means, ie that the risks of pursuit should not be out of proportion to the goal of apprehending the fugitive, is, however, the essential gauge when examining the prerequisites for provocation to pursue and the transfer of the increased risk of injury to the fugitive (references omitted). If such proportionality is not maintained, physical injury of the pursuer, as already stated, will not fall within the protected area of the liability norm.

When comparing the present case with the Senate's decision of the 13th January 1976 (reference omitted), it must finally be considered that the Senate making the decision did not actually deny objective attribution of the physical injury, in spite of the fact that the jump was from a height of 4.05 metres, but left the issue undecided. It let the liability on the part of the fugitive fail on subjective grounds, namely for lack of fault.

b) On the question of the objective attribution, cases of the kind present here can on other grounds as well take into account other factors besides the height of the jumping-off point (which would in this respect perhaps be entirely a matter of a certain number of centimetres). Admittedly the transfer of the risk of injury to the fugitive is dependent on whether the pursuer should have felt himself called on to jump in pursuit, which, with unusually great heights, is not the case. In the critical area, which covers the present case of a height of about 4 metres, the special circumstances of the case in question must however in the end be the decisive factor. In this connection, besides the nature of the jumping-off point already mentioned above, amongst other things the age and physical condition of the person jumping in pursuit are also of importance. According to the findings of the appeal court, these factors in the present case gave no cause for the 31 year old W to refrain from jumping.

c) In examining the question of objective attribution, the court must finally also bear in mind (as did the appeal court) that W, in pursuing the defendant, had to make up his mind very quickly about whether to jump after him; and that therefore, as the appeal court explains, there was scarcely any time and opportunity left for him to weigh up the risks of a jump. On that account also, the requirements for deciding whether he was justified in feeling called on to act cannot be too high. For W, the way the situation presented itself was that two people had already jumped out of the window in front of him and both had then still been able to run away. The fact that in these circumstances W thought the danger of a substantial injury was not great enough to prevent him from jumping justifies (contrary to the view of the appeal in law), in the context of the peculiarities of the present case set out above under a and b, the appeal court's view that W could have felt himself to be called on to pursue in the sense of the case law on this subject.

3. The appeal court made no legal error in also attributing the physical injuries of W to the defendant in a subjective sense.

a) The subjective side of the liability, ie the accusation of having culpably caused the physical injury of his pursuer, assumes that the fugitive had to take into account that he was being followed, and that he could also foresee that his pursuer might be harmed in the pursuit. It is not a necessary prerequisite for his liability that the fugitive was actually aware of the pursuit as such (reference omitted). The conduct which has provoked a pursuer (prepared to pursue out of motives deserving approval) to a reaction which endangers himself is no less in breach of duty just because the fugitive rushes away so fast that he cannot see whether the person he provokes actually commences pursuit. The fugitive can also be the "controller of events" in the sense of the case law (reference omitted) by forcing special potential for danger on his pursuer, if he prevents the person provoked by his escape from being able to consider carefully before going into a situation of increased danger. For this very reason he must take into account the possibility of a pursuit even into these special dangers. Any different view would, especially in relation to a jump from a window, as here, (where the fugitive himself can possibly not be aware of the pursuit at all) not take proper account of the fact that he has reprehensibly exposed his pursuer to an increased potential danger. Accordingly, the Senate making the decision has always considered as the only decisive factor the question of whether the fugitive by running away created, in a way that was attributable to and recognisable by him, a situation of increased risk of injury for the pursuer and whether he should have taken pursuit into account (references omitted). Even if the defendant therefore (on the basis of the description of the facts assumed by the appeal court, that he had already distanced himself 10 metres from the building when W jumped after him) was not to know of the pursuit by W, this is not a barrier to liability on his part.

b) The appeal in law challenges the finding of the appeal court that the defendant should have taken into account that the police officer would jump after him, simply by reference to the special danger of a jump from a height of 4 metres. But this argument was already considered above not to be effective, when examining whether W ought to have felt himself to be provoked to make the jump. The grounds mentioned there suggested that, for the defendant (who of course exposed himself to the risk of injury from jumping), W, who was responsible for guarding him, would not be any less likely to do the same. The danger that W could be injured in so acting was likewise known to the defendant; it is also described by the appeal in law as clearly recognisable and obvious.

4. The judgment under challenge cannot however stand in relation to the appeal court's reasoning in refusing to divide the loss on the basis of § 254 (1) of the BGB.

a) The appeal court proceeded without legal error on the basis that the accident was partly caused by W's fault. The fact that the defendant, as has been explained, provoked him in a reprehensible manner to jump after him and therefore in such a way as to oblige him to pay compensation, is not inconsistent with this. The connection in liability law between the psychological pressure to pursue and the injuries to the pursuer which occurred in the pursuit does not only exist when the person pursued is solely responsible for the harm. Allocation of the loss in cases of psychological causation admittedly assumes, as the Senate has stated on a number of occasions, that the person intervening ought to feel himself to be called on to act not merely in a general sense, but exactly in the way he chose (references omitted). But this limitation is only to exclude those cases in which the person intervening has taken on a risk which is so excessive that allocating it in law to the person who set the chain of causation in motion would cause the risk of liability to become infinite (reference omitted). For cases of the present kind, it does not follow from the above that, on a jump from a window from up to a certain height, the fugitive should be fully liable for his pursuer's injuries, and where this height is exceeded he should not be liable at all. Instead there remains room, as the Senate has already stated (where the pursuit should have been foreseen by the fugitive and its potential for harm does not exceed the unacceptability threshold mentioned above) for balancing the special circumstances of its actual execution in accordance with § 254 of the BGB (reference omitted). An "all-or-nothing" principle in such cases would often prevent a just assessment of each individual case, because a differentiated balancing exercise could not take place (reference omitted). The Senate making the decision has therefore already repeatedly approved decisions in which the judge of fact divided the loss on such a basis (references omitted).

b) In the present case the facts established by the appeal court justify its view that W was partly responsible for his injuries. The fact that, as explained above, he had to decide very quickly whether he should jump after the defendant through the window opening, or perhaps like his colleague M take up the pursuit by the stairs, admittedly diminished the requirement for the care to be expected from him within the framework of § 254 of the BGB (reference omitted). But this did not relieve W of every duty of care in respect of his own interests (references omitted). He could also therefore, despite the required haste, recognise and bear in mind in his decision that the window was a considerable height above the ground and that a jump from the first storey of the building gave rise to a risk of not inconsiderable injuries, even though the defendant, and earlier the co-suspect Ü, survived their jumps apparently without serious injury. Therefore, as the appeal court explains, on careful consideration there were reasons for W not taking the risk of injury associated with the jump. Admittedly no protracted consideration was needed for the protection of his own interests which was required of him within the framework of § 254 of the BGB. But even with the need for a rapid decision, W could have considered and avoided the potential for danger which would come to mind with a jump from a height of 4 metres. The fact that W did not take account of this justifies the accusation of contributory fault.

c) The partial responsibility which W bears cannot, however, on the basis of the considerations on this issue laid down by the appeal court, be regarded as so insignificant that it could be left entirely out of consideration within the framework of the balancing exercise under § 254 of the BGB for the allocation of loss. In taking the view that the defendant was solely liable, because he had provoked W and thereby created the quite decisive cause of his injury, the appeal court did not consider all the circumstances of the present case which were relevant in this respect, and this issue is subject to re-examination in the appeal in law (reference omitted). As the Senate has explained in its judgment of the 12th July 1988 which has just been mentioned, in relation to division of liability under § 254 of the BGB it should be taken into account as a decisive factor whether the behaviour of the one or other party made the onset of the harm probable to a significantly higher degree. Here this requires balancing the extent to which the defendant and W could recognise and avoid of the risk of injury, according to an attribution appraisal, and this has not so far been undertaken by the appeal court. It also requires an explanation evaluating the grounds for saying whether and to what extent the defendant's provocation to take increased risks (as against W's exposing himself to a position of danger) made the onset of harm more probable.

III. The judgment of the appeal court relieving W from any participation in the harm must therefore be quashed and the matter referred back to the appeal court. The Senate making the decision cannot make a conclusive decision itself under § 565 (3) no.1 of the Civil Procedure Code. For one thing the balancing of the responsibilities under § 254 of the BGB is for the judge of fact to assess and this information is only available to the court dealing with the appeal in law to a limited degree (reference omitted). For another thing, the appeal court has left open so far whether the defendant pulled W down with him when he jumped. As this could lead to full liability on the defendant's part, the appeal court will also have to make the necessary findings on this point, insofaras this should in its opinion now be material.

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