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Case:
BGHZ 103, 338 VI. Civil Senate (VI ZR 190/87)
Date:
01 March 1988
Translated by:
Raymond Youngs
Copyright:
Professor B.S. Markesinis

The claimant, who was one year and ten months old at the time, suffered substantial injuries to his head and shoulders on the 17th May 1985 in an open children's play area in M., maintained by the defendant city, when he fell to the ground from the platform of a slide erected there. The platform of the slide was at least 1.50m above the ground, which in this area consisted of asphalt concrete. On the sides of the platform there were rails with wide spaces to the sides. According to the claimant's story, the accident happened when, as he was sitting down on the platform to start his slide, he stretched out his left foot, and - while his father stood near him to the left of the slide - in a moment when he was not being watched, suddenly slipped backwards to the right under the rail and fell to the ground.

The claimant claimed from the defendant payment of appropriate damages for pain and suffering for violation of the duty to safeguard the public in general (Verkehrssicherungspflicht) as well as a declaration of a duty to compensate for all further harm, in so far as this had not passed to the Department of Social Security. The defendant has opposed the claim. It has referred to the fact that the play equipment has been put up since 1964 and comparable accidents have not occurred in the past. Also, the contributory fault of the claimant's father arising from breach of the duty of supervision which he owed had to be set against claimant.

The Landgericht granted the claimant damages for pain and suffering in the sum of 10.000 DM and stated that the application for a declaration was well founded. On the defendant's appeal, the Oberlandesgericht reduced the damages for pain and suffering to 8,000 DM, but dismissed the remainder of the appeal as unfounded. The defendant's appeal in law was unsuccessful.

Reasons:

I.

The appeal court proceeds on the basis of a violation of the duties to safeguard the public (Verkehrssicherungspflichten) by the defendant. It ought not to have permitted the use of the slide which had insufficient protection on its side rails to prevent small children from falling, when the surface of the ground in the area in which it stood was asphalt concrete. As children were always falling from play equipment, no special safety measures were needed if the equipment was comparatively low. In other cases, an impact absorbing surface had to be selected in order to avoid injuries. Accordingly the German Industrial Standard Norm 7926 issued in 1979 provides only for grass, synthetic material, safety tiles or sand or fine shingle to a depth of 200 mm as ground surfaces for play equipment with a handrail and a drop to the ground of 1m to 2m. Possible contributory fault on the part of the father in relation to the accident could not be attributed to the claimant.

II.

The judgment of the appeal court stands up to legal examination.

1. The appeal court has correctly determined the duties to safeguard arising from § 823 (1) of the BGB which have accrued to the defendant city M. from making the play area on which the claimant sustained the accident generally available.

a) According to the principle that everyone who creates a danger must also take the necessary precautions for the safety of third parties, the defendant had to take the safety measures which experience of life indicates to be necessary for this area of danger. This Senate endorses the view of the appeal court that the content and scope of the duties to safeguard the public (Verkehrssicherungspflichten) for an open play area arise from the need to construct and maintain the play area so as to be as free from danger as possible; and that in this connection the degree of safety to be observed has to be orientated to the age of the youngest children coming under consideration for the use of the play equipment concerned (reference omitted). There is no legal reason preventing the appeal court from requiring the defendant to opt for a surface with impact absorbing properties in the area where the equipment was situated in respect of play equipment with a height from the ground, as here, of 1.50 m. It did so for the simple reason that high spirits, curiosity or inexperience can lead smaller children to dangerous inappropriate behaviour, and falls from play equipment are constantly occurring as a consequence of some unfortunate movement, disturbance of balance or because of the influence of other children. Especially strict requirements are to be placed on the safety of play equipment in a children's play area. In principle the children and their parents must be allowed to place unlimited trust in the fact that children can use the play equipment without danger and, in particular, cannot suffer such severe injuries as is the case here (reference omitted). Because of the danger, which is always present with children, of falling from play equipment, the requirement of an appropriate surface which makes falling accidents less dangerous for play equipment with a height from the ground of 1.50 m is, in any case, an elementary safety requirement.

This standard for the duties to safeguard the public (Verkehrssicherngspflichten) to be observed does not - in contrast to the view of the appeal in law - contradict the principle that play areas and equipment situated on them do not have to be free from all risks. But they can only be easily comprehensible and calculable risks, which have educational value for the child (references omitted). However, such controllable risks do not cover the properties of a suitable surface for the avoidance of injuries on falls from play equipment, which is the issue here.

Whether the duties to safeguard the public (Verkehrssicherungspflichten) are limited if the children's play area or certain play equipment is only made available for use for children of a higher age and upwards can be left open. This is because a limitation to a minimum age for use was indisputably not prescribed. Instead, the play area was made available by an appropriate sign for use by all children up to twelve years of age. Any possible expectation by the defendant, which was not recognisable by other people, that slides of the kind here would only be used by children from three years old and upwards did not limit their duties to safeguard the public (Verkehrssicherungspflichten).

b) There are also no objections to the fact that the appeal court, in order to establish the content and scope of the duties to safeguard the public (Verkehrssicherungspflichten) applying to the defendant, has referred to the German Industrial Standard Norm 7926, Part 1, issued in December 1976, which provides only for loose laid surfaces in accordance with German Industrial Standard 18,034 like earth, grass, or sand or fine shingle as ground surfaces for play equipment with a handrail and a drop to the ground of 1m to 2m. Even if German Industrial Standard Norms are not norms which have effect against third parties in the sense of authoritative legal requirements, but voluntary application of stated recommendations of the "German Industrial Standard of the German Institute for Standardisation e.V. (registered association)" (reference omitted), they still reflect the state of the recognised rules of technology applying to the areas affected. They are therefore appropriate in a special way for the determination of what is necessary for safety according to experience of life (reference omitted). Whether on the introduction of new German Industrial Standard Norms existing installations should be allowed to continue to be used without alteration for a transitional period can be left open here. Such a period of adaptation - if it were permitted - would, in any case, as the appeal court correctly found, have long ago expired, as the accident occurred more than eight years after the issue of the relevant German Industrial Standard Norm. The appeal in law refers to the fact that slides of the kind under consideration had still not been questioned from the standpoint of observation after the coming into effect of the German Industrial Standard Norm. But this was a fact first submitted at the appeal in law stage, and therefore not admissible. Besides this, such a practice could not relieve the defendant of responsibility, as the danger arising from the location of the play equipment could be recognised by it anyway as the body responsible for the play area.

2. The argument of the appeal in law which is directed against the failure to take the claimant's father's possible contributory fault into account in relation to the defendant's liability also fails.

a) Even the appeal in law does not call into question that the claimant can only have his father's contributory fault attributed to him in respect of the accident in accordance with §§ 254 para 1 and 278 of the BGB within the framework of an obligation relationship already existing at the moment of the accident or a special legal relationship similar to an obligation relationship with the defendant (reference omitted). It takes the view, however, that such a special relationship had existed in the present case when the harm occurred, because the notice board at the play area described the persons permitted, and prohibited certain forms of behaviour. A use relationship had been based on this. However, the appeal court, in harmony with the case law of the Senate (references omitted), correctly regarded this fact as insufficient to create special relationships in the law of obligations (or relationships similar to these) between the claimant and the defendant over and above the general rights and duties in tort. Even if there had been a bye-law for the use of the play area, the forming of a use relationship of a nature similar to a contract could not follow from this alone (reference omitted). In particular, there is no evidence of a special interest situation which could have given cause for increased rights and duties of this kind for both sides. Instead, the interests of both sides seem already to be sufficiently perfectly protected by the general tortious relationships.

b) The appeal in law also places the appeal court judgment under scrutiny from the point of view of the duty by the claimant to be answerable for his father in accordance with § 278 of the BGB, in connection with fulfilment of the obligations of avoiding harm or reducing harm in the sense of § 254 (2) sentence 1 of the BGB. But this reveals no legal error. It is correct that a victim, within the framework of his obligations to avoid or reduce harm in accordance with § 254 (2) of the BGB, must allow a fault of a third person to be taken into account in accordance with § 278 of the BGB. Nevertheless the tort of the wrongdoer must at the same time have brought about the development of the harm (reference omitted). A different approach would not only make redundant the limitation to special legal relationships of the victim's duty to be answerable for a fault of a third party in accordance with § 278 of the BGB. The victim would also be in a worse position than the wrongdoer who, in principle, only has to be responsible in tort under § 831 of the BGB in respect of harm arising for third parties. Therefore it is not - as the appeal in law considers - sufficient that danger triggered by the violation of the defendant's duties to safeguard the public (Verkehrssicherungspflichten) already existed when the claimant climbed the slide at his father's hand. Nor is it sufficient that the statutory representative or the person entrusted by it with supervision knew of the danger which threatened the child from an installation or a situation (references omitted). Only in so far as contributory fault for the harm which has occurred applies to the phase in which the actual violation is already realised does an attribution in accordance with §§ 254 (2) and 278 of the BGB come into question.

Nor is the father's conduct to be attributed to the claimant over and above this from the point of view of unity of liability. The appeal in law seeks by this means to provide a basis for a corresponding reduction of the defendant's duty to compensate. The claimant, who is not competent in tort, has jointly caused the accident in a manner which is not attributable to him. He and his father cannot therefore share unity of attribution (references omitted).

3. The view of the appeal court that the claim which the claimant possesses against the defendant is not be reduced from the point of view of a "disturbed internal settlement between joint debtors" must also be followed. It is unimportant in this connection which standard of liability the claimant's father must be judged by in the supervision of his child on the play area, and whether according to it he has actually culpably violated existing duties. The liability relationship of the defendant to the claimant is not affected in any of these possible formulations.

a) According to § 840 (1) of the BGB, each of several tortfeasors is liable to the victim for the harm for which he is responsible to the full extent, without regard to the duty which the others have to be answerable for it. Statute leaves it to the tortfeasor at a later stage to seek compensation in respect his claim from the joint tortfeasors. Even if the claimant could demand compensation for his accident injuries not only from the defendant but also from his father, that would not, in principle, affect the defendant's full liability to him.

b) The case law has admittedly allowed exceptions to this principle in cases in which the possibility of obtaining compensation from a joint tortfeasor is taken away from the tortfeasor by the former being released from his liability as against the victim by virtue of statute. In these cases, the victim can only claim from the non-privileged tortfeasor for the part of the harm which would have remained that tortfeasor's responsibility in the internal relationship with the released joint tortfeasor, if the possibility of an internal settlement had not been barred by privilege against liability (references omitted). The basis for this is the consideration that it would be unfair to burden the non-privileged tortfeasor with the release of his joint tortfeasor from liability, which according to its meaning alone should concern his relationship with the victim.

c) In the wider sense it is possible likewise to speak in connection with § 1664 (1) of the BGB of a "liability privilege". According to this provision, parents only have to be responsible for the care which they usually apply in their own affairs in the exercise of parental care towards the child. In comparison with tortfeasors who are liable according to the general standard of care contained in § 276 of the BGB, their duty to be answerable is limited in relation to harm caused by them, because of their family law obligations to the victim (§ 277 of the BGB).

In the case in question, the claimant's father was admittedly not the person who was entitled to custody of him. However there is much to be said for the prevailing view in the literature of, in any case, allowing even to the parent who was not entitled to custody the more lenient liability standard by application of § 1664 of the BGB by analogy, if he - as here - in exerting his right of contact (§ 1634 of the BGB) exercises factual personal care of his child (references omitted).

According to the view of the Senate, it would also not prevent the application of § 1664 of the BGB in the present case that tortious duties of behaviour on the part of the father for the protection of the health of his child are (also) at issue. In any case where these protective duties in case formulations like this one revolve entirely around care for the person of the child, any different approach would amount to a limitation of § 1664 of the BGB, which would not be reconcilable with the wording and sense of that provision. That is obviously not to say that a protected interest which is as central to parents as the health of their children would not have a special status, even for the care they use in their own affairs, and therefore would have decisive importance for their liability. It can be left open whether there is still room for the subjective standard of care of § 277 of the BGB where the protective duties of the parents towards their children could scarcely be separated objectively from their duties to be measured by experience of life in accordance with the objective standard of care of § 276 of the BGB - as approved in particular for the area of duties to safeguard the public (Verkehrssicherungspflichten), for instance duties of supervision under § 832 (references omitted) and for the area of involvement in road traffic (references omitted). Such a case formulation is not however present here.

d) Nevertheless, even if the claimant's father were freed from joint liability for the claimant's injuries only because of the more lenient standard of care of § 1664 of the BGB, that would not benefit the claimant. The prevailing opinion in the literature that, even in such cases, the statutory "privilege from liability" ought not to disadvantage the non-privileged tortfeasor, but must be counterbalanced by an appropriate reduction of the victim's claims to compensation according to the principles developed by the case law on the statutory release from liability (references omitted) or by creating an imaginary internal settlement (reference omitted) cannot be shared by the Senate. The supporting grounds on which the case law on the so-called "disturbed" joint obligation relationship rests are absent here.

In those cases, to start with, all the prerequisites for a joint obligation relationship in accordance with § 840 (1) of the BGB are fulfilled; this is then "disturbed" by statute releasing the privileged joint tortfeasor from his liability, deviating from the principle of § 840 of the BGB. But in the cases in which joint liability breaks down because of § 1664 of the BGB, the joint tortfeasor "privileged" in this way does not slot into the regime of § 840 of the BGB; the foundations for a joint obligation relationship which could be "disturbed" are simply lacking. That is no mere formal and outward difference. It corresponds to the nature and system of tortious liability that the tortfeasor can only involve someone who has jointly caused the harm in his liability if and in so far as this person has jointly created the harm in a way which is attributable. Only where privilege against liability deprives him of the joint tortfeasor as a settlement debtor, in spite of the latter's joint liability in liability law, is it justified to speak of the former being burdened with a privilege from liability which runs counter to §§ 840 and 426 of the BGB. If, on the other hand, a settlement breaks down because of the absence of attributable involvement on the part of the settlement debtor, that is a consequence of the settlement system which is, in principle, to be expected for all tortfeasors within the framework of tortious liability.

Attributability is lacking, however, in the case of a release from liability in accordance with §§ 1664 (1) and 277 of the BGB, as long as the violation of duty does not go beyond the care one uses in one's own affairs or appear to be grossly negligent. The parent is not responsible for a contribution to harm below this threshhold. Conduct partly causing the harm which has arisen is not therefore to be attributed to the claimant's father as long as the liability standard of §§ 1664 (1) and 277 of the BGB is not reached.

Where there is no attributability because of the more lenient standard of care of § 1664 of the BGB, the denial of a settlement for a joint tortfeasor can no more be regarded as an unfair special burden than in those cases in which there is no attributable involvement because, for instance, of a division of tasks specially prescribed by statute or the lack of tortious capacity of the joint tortfeasor. For that reason alone, the Senate sees no objective cause - according to the standard set by its case law evolved through §§ 636 and 637 of the RVO (Reich Insurance Order) by way of development of the law in relation to release from liability - to modify the statutory regime for the division of burdens in relation to multiple involvement in those cases also in which a joint obligation relationship does not come into existence because of the more lenient standard of liability of § 1664 of the BGB. Furthermore, not only would such a solution lack appropriate criteria for measuring the contribution of the parent causing the harm, to whom §§ 1664 and 277 of the BGB deny attributability, for the purpose of a reduction of the claim to compensation. It would also lead to the scarcely plausible consequence that a child harmed by conduct of its parents which, because it is moderately negligent in the sense of § 276 of the BGB, has not yet reached the threshhold of § 277 of the BGB would have to accept a reduction of its claim to compensation, but not in the case of gross fault on the part of its parents. In this respect it should also not be overlooked that in these cases - otherwise than in the area of application of the privilege against liability of §§ 636 and 637 of the RVO - no equivalent in the form of an alternative settlement solution accrues to the victim for the claim made for compensation.

But neither does it appear just to the Senate, after examination of its other standpoint put forward in BGHZ 35, 317, to release the tortfeasor from part of the liability applying to him because of the contribution which he made to the harm and for which he is answerable, through the fiction of an internal compensation settlement - arising from a joint obligation and made with the parent concerned at his expense - just because the parent was involved in the infliction of the harm, but without making an attributable contribution to it. This is all the more so as the economic effect of such a solution would in the end in the majority of cases also be to the detriment of the child harmed. In so far as the statements of this Senate in its judgment of the 27th June 1961 = BGHZ 35, 317, 322 f. on the more lenient standard of liability of § 1359 of the BGB between spouses contradict this, the Senate no longer adheres to this view. In particular, it considers to be insufficient the comparison employed there with the interest situation in the case of a contractually agreed reduction in liability, as the basis for the fiction of an internal compensation settlement arising from a joint obligation, even in cases of statutory reduction in liability under § 1664 of the BGB. This is simply because this reduction of liability is not based on an individual weighing and formulation of the participants' interests, left to themselves within the framework of contractual freedom, with the possibility of making corresponding counterbalancing solutions. It is based instead on legislative assessment and evaluation of the family community, which also concerns the "external" legal relationship as such. Besides this, the Bundesgerichtshof has, in its case law in the meantime, applied to the facts of harm inflicted in a road traffic case, like those which were the object of the decision in BGHZ 35, 317 already mentioned, a just solution in a different way (references omitted).

From all this it follows that the defendant in this case cannot rely as against the claimant on involvement by the claimant's father in the accident by reference to the principles in the case law on the "disturbed settlement between joint debtors".

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