Can a pedestrian enter a residential complex?
Black ice accident pedestrians - fall on the entrance to the underground car park of an apartment building
LG Erfurt, Az .: 10 O 586/13 (147), judgment of 07.03.2014
1. The action is dismissed.
2. The plaintiff has to bear the costs of the legal dispute.
3. The judgment is provisionally enforceable. The plaintiff can avert the enforcement against security in the amount of 110% of the amount enforceable on the basis of the judgment, if the defendant does not provide security in the same amount before the enforcement.
The plaintiff seeks damages, compensation for pain and suffering from the defendant, as well as a declaration of future damage due to an alleged breach of an obligation to clear and spread.
The 76-year-old claimant has lived in a rented apartment in ... in ... since 1999. The subject of the lease is also a parking space in the underground car park of the apartment building. In the lease under III. 3 the following is regulated: "The caretaker is also responsible for cleaning, clearing snow and dulling the smoothness of the pathways and house entrances as well as the access to the underground car park." The upper part of the ramp is outdoors and is not covered. The lower last quarter of the underground car park entrance, which leads to the automatically operated rolling grille, is built over. The community of owners of the property in dispute has commissioned the defendant to carry out the caretaker activities, which also included the winter service. On the morning of February 16, 2012 there were still residues of grit on the driveway to the underground car park. The plaintiff fell as early as autumn 2007 due to wet leaves when inspecting the underground car park ramp.
The plaintiff claims that she suffered a complex injury to her left knee joint in a fall on February 16, 2012 on the entrance to the underground car park as a result of icy ice. At around 7:40 a.m., she went to the disputed underground car park entrance to pick up her car. Because of a cumbersome large-volume suitcase and a large handbag, she did not choose the way through the stairwell, but rather the ramp up and down to the underground car park via the outside ramp across the courtyard. Due to her age and chronic bronchitis, she was not physically able to carry her luggage through the narrow and winding staircase and through the four heavy fire-resistant steel doors to reach the underground car park; in this respect, she feared that she might fall over her suitcase. Therefore, she parked her luggage in the courtyard on the side at the end of the ramp exit of the underground car park on level ground and only then went into the underground car park. She went down the ramp access along the left wall with very slow and short steps. She opened the garage door with the help of a key and then went to the covered part of the driveway. There she fell due to frozen moisture. Due to the darkness and the associated lack of artificial lighting in this area, she could not see the ice surface. Due to the known conditions, specifically the large-scale green deposits on the boundary walls, the often long-lasting dampness of the paving and the permeable knotweed vegetation of the light construction of the metal rods of the roofing of the driveway and due to the weather constellation, the defendant should have expected that in During the dew phases from the wall edges of the boundary walls and the upper uncovered area of the underground car park access, dew water runs down the underground car park access and in the shaded and therefore colder area it comes to freezing again much earlier and faster than outside the underground car park entrance. He could only have countered this by taking appropriate dulling measures.
Due to the complex injury to the left knee joint, she was in an inpatient clinic until February 22, 2012, during which she had to use an orthosis, a knee brace and forearm supports for a period of 6 weeks. During this time she was severely restricted in her necessary daily chores such as personal hygiene, preparing food and doing her household chores. Furthermore, after the fall, she had to undergo physiotherapy with a total of 24 treatments, as well as outpatient rehabilitation 5 days a week between May 29, 2012 and July 10, 2012. To this day she is not painless and has to continue to undergo physiotherapeutic treatment measures. Due to the fall, she suffered permanent damage in the form of a persistent functional deficit of the left knee joint with persistent pain syndrome.
The applicant requests
1. to condemn the defendant to pay the plaintiff 1,122.60 euros plus interest from this amounting to 5 percentage points above the respective base rate since lis pendens as well as costs of pre-judicial prosecution of 313.86 euros plus interest from this amounting to 5 percentage points above the respective base rate to be paid since pending.
2. To sentence the defendant to pay reasonable compensation for pain and suffering, the amount of which is at the discretion of the court, but which should not be less than 10,000 euros, plus interest of 5 percentage points above the respective base rate on July 28, 2012 to pay.
3. to determine that the defendant is obliged to compensate the plaintiff for the following damages, insofar as the claims for damages based on this are not transferred to the social security agencies and other third parties entitled to transfer:
All future material damage that the claimant will suffer from the black ice accident of February 16, 2012 on the underground car park entrance to the residential complex ... in ... after,
· Possible future, not yet recognizable and foreseeable immaterial damage that the plaintiff will incur from the black ice accident of February 16, 2012 on the underground car park entrance to the residential complex ... in ...
The defendant moves that the action be dismissed.
He thinks that there was no duty to spread and clear on February 16, 2012. At most, there would have been small individual areas of ice. Furthermore, the plaintiff had to be responsible for contributory negligence in accordance with Section 254 of the German Civil Code (BGB), since she had also fallen in the underground car park entrance in 2007 due to wet leaves. Before the fall, the plaintiff had the option of using the safer staircase leading to the underground car park.
In addition, reference is made to the written submissions and annexes exchanged between the two party representatives.
Reasons for decision
The admissible action is unsuccessful on the merits.
The plaintiff is not entitled to damages or compensation for pain and suffering according to §§ 280Abs. 1, 249,253 BGB in conjunction with the rental agreement.
There is already no one accusable breach of duty to litter and clear away from the defendant. The defendant did not have a clearing and spreading obligation.
The winter clearance and litter obligation is based on the responsibility due to the opening of traffic and presupposes a specific danger situation, i.e. a risk from the formation of ice or snow cover. The basic requirement for the obligation to clear and litter on roads or paths is the existence of general slipperiness and not just the presence of individual slippery areas (see BGH, judgment of June 12, 2012, VI ZR 138/11 mwN; OLG Jena NZV 2009, 599, 600 mwN ; Geigel / Wellner, The liability process, 26th edition, chapter 14, marginal number 147). If there is a duty to spread, the content and scope depend on the circumstances of the individual case (Senate judgments of September 29, 1970 - VI ZR 51/69, loc. Cit .; of October 2, 1984 - VI ZR 125/83, NJW 1985, 270; BGH, Judgment of July 5, 1990 - III ZR 217/89, BGHZ 112, 74, 75; decision of October 20, 1994 - III ZR 60/94, VersR 1995, 721, 722). An obligation to litter does not mean that the roads are to be littered in such a way that a road user cannot slip at all when it is slippery in winter. Rather, the roads only have to be sprinkled in such a way that they can be used by road users without risk if the road user also takes the necessary care.
Taking these principles into account, the defendant, as the person responsible for road safety, was fundamentally obliged to spread the access to the building at issue when the ice was generally slippery. In the present case, this also applied to the access to the underground car park; The caretaker also regulates the spreading of the underground car park access in the disputed lease.
In this respect, however, there are already doubts for the court as to whether, according to the protective purpose of the standard, there was also an obligation to litter to the extent that pedestrians could also expect to be able to enter the underground car park safely from the ramp access. In view of the photographs in the file (pages 5, 9 and 105 d. A.), the present case was a rather steep and narrow ramp exit or entrance without a separate pedestrian path. Insofar as the rental agreement also includes the distribution of the ramp, this can only apply to vehicle traffic in winter conditions due to the external conditions described above. Due to the photos taken and the resulting narrowness and steepness of the ramp, the person subject to litter cannot simply be expected to use it safely by carrying out scattering or blunting measures, and experience has shown that a pedestrian will slip away even if this is done at least winter conditions and such a steepness does not seem improbable. In this sense, the plaintiff herself admitted that litter from a previous time could still be seen before her fall; nevertheless she fell. It therefore appears questionable whether further spreading measures would have prevented the plaintiff from falling. The fact that the underground car park access - even if the house residents like to use it on foot - was only intended for vehicle traffic and (only) to that extent was to be protected from slippery ice - results in particular from the fact that the underground car park is easily accessible through the safer one located separately in the house Staircase for pedestrians can be reached. In this respect, it is also hardly credible that the plaintiff, because of her age-related and health impairments, claims that she was only able to use the more dangerous - relatively steep ramp descent - despite the prevailing winter conditions, especially since she also has her luggage in front of her up in the courtyard left the exit in order to pack it into her vehicle later. Likewise, she could have left her luggage there in order to then go down the safer staircase to the underground car park and later pick up her luggage after leaving her car.
In this respect, the plaintiff must also counter the fact that the person responsible for road safety generally only owes one opportunity to safely enter or leave the underground car park (cf. BGH, judgment of November 15, 1984 - III ZR 97/83 -, juris; OLG Munich, Order of October 10, 2012 - 1 U 2408/12 -, juris; Order of September 5, 2012 - 1 U 2408/12 -, juris Brandenburg Higher Regional Court, judgment of January 8, 2007 - 2 U 6/06 -, juris) .
Ultimately, however, the aforementioned question can be left unanswered, since a scattering obligation only exists in principle when there is general smoothness and not when there are isolated areas of smoothness. Only from the latter, however, could it be assumed after hearing the plaintiff who was required to present and provide evidence for the objective breach of the duty of public safety (cf. BGH, NJW 2009, 3302).
The circumstances of the individual case are decisive for the extent of the clearance and litter obligation, whereby the focus is not primarily on the intensity of the precipitation (e.g. heavy snow and sleet rule), but on the formation of ice (see OLG Zweibrücken, r + s 1993, 459; Geigel / Wellner, marginal note 148). Exceptional smoothness conditions may require special safety measures, such as multiple spreading (cf. BGH, VersR 1985, 90).
According to the plaintiff's own hearing, it cannot be assumed that such extraordinary or general smoothness conditions were to be assumed at the time of the accident. The plaintiff itself does not claim that it actually rained or snowed on the morning of the accident. Although the plaintiff herself admitted that the ramp of the underground car park was still provided with (old) litter, she slipped on an isolated ice surface when she was already a few steps behind the roofing near the rolling grille in the underground car park entrance. In this respect, she also stated during her personal hearing that there was neither snow nor ice on the way to the underground car park; it was "dry". In particular, the ramp to the underground car park, on which there was still grit, was free of ice and snow. An ice surface was only located in the lower area behind the roofing near the rolling grille, which, however, was not recognizable due to the darkness. In this sense, contrary to the plaintiff's submissions, it cannot be assumed that there is a “general” smoothness, but rather only a single smoothness point.
Ultimately, however, a claim by the plaintiff would fail completely due to her considerable contributory negligence. Even in the case of a breach of the eviction and spreading obligation on the part of the defendant to be assumed in their favor, his liability would completely subside the fault of the plaintiff against itself (Section 254 (1) BGB). Every road user is obliged to prepare for the hazards arising from winter weather and to take accident-preventive measures in their own interest or to avoid accident-prone dangers entirely (OLG Jena, decision of 22.12.2010-4 U 610/10, juris). According to the plaintiff, she decided on the morning of the accident, due to her age, her chronic bronchitis and the fact that she always did this as a habit, not to use the stairwell but the underground car park entrance to get to her car. The stairwell was not suitable for her as an entrance, as she was unable to carry the heavy luggage through the narrow stairwell and thereby overcome 4 fire doors. It is surprising, however, that the plaintiff, according to her own statements, left her luggage outside the house on the flat outer edge of the ramp exit in order to then enter the underground car park entrance without it. In this sense, contrary to her statements, she would not have been forced to take her luggage with her over the stairs through 4 fire doors when entering the underground car park via the stairwell. She could also have left her suitcase - as happened - outside at the edge of the driveway, in order to later pack it into the courtyard after entering the garage via the (illuminated) stairs in the house and exiting her car, without doing this - because of the obvious winter conditions - in danger of falling. In particular, it should be noted that the plaintiff, 75 years old at the time of the accident, was well aware of the danger posed by the steepness of the ramp. It is undisputed that she fell on the ramp of the underground car park in autumn 2007 due to wet leaves. As a result of this fall, which she had already suffered in the past, the plaintiff should have been warned clearly to use the safer route to the underground car park, also due to her advanced age, her reported bronchitis disease and the still prevailing general darkness due to the sunrise beginning at 7:40 am. From the point of view of an objective third party exercising due care towards itself, it is impossible to understand why the plaintiff, with seeing eyes, opted for the obviously more arduous and unsafe route via the underground car park entrance. In this sense, it was not beyond any life experience that in February in the early morning hours (at least) there can still be occasional slippery conditions due to low temperatures. Just as the plaintiff claims that the wintry conditions were obvious to the defendant, she must also have this countered in addition to her fall experience in 2007. She too had to reckon with wintry conditions when she left her apartment around 7.40 a.m. when it was still dark. Furthermore, the access to the underground car park - unlike the staircase - has neither a railing nor a separate footpath. Part of the driveway is in the dark, as this area is built over.According to the plaintiff's own presentation, this area is only insufficiently artificially illuminated and therefore difficult to see. This area represents a major hazard, especially when it is dark in the morning, which the plaintiff was well aware of and was aware of after 19 years of rental. If she had taken the (intended route) through the stairwell, the risk of falling due to freezing moisture could not have occurred. After all of this, the plaintiff had so much in the hand of avoiding the occurrence of damage that any possible culpable behavior on the part of the defendant would take a back seat.
The action was therefore to be dismissed in its entirety.
The decision on costs is based on Section 91 (1) ZPO.
The decision on the provisional enforceability is taken from § 708 No. 11, 711 ZPO.
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