Hamm Higher Regional Court, 16.05.2013, Ref.: 6 U 178/12
It is generally the responsibility of the landlord and owner of the respective rental property to carry out the winter clearing and gritting service for the private access roads and driveways as well as the neighbouring public traffic areas.
The reason for this clearing and gritting obligation is to protect the tenants of the rented property and to protect passers-by on the neighbouring public traffic areas.
However, the question of whether the homeowner also has a duty of care with regard to passers-by who use the homeowner's private property as a shortcut, for example, is also repeatedly the subject of legal proceedings.
The Hamm Higher Regional Court had to deal with this question in the above-mentioned decision.
Facts of the Case The plaintiff had fallen on the forecourt of the garage belonging to the defendant's condominium complex.
This garage forecourt formed the access road to several garages belonging to the condominium complex and directly adjoined a small public road that ran around a bend and partially enclosed the garage forecourt.
The boundary between the garage forecourt and the public road was only formed by a wide rain gutter that led to a water drain.
The garage forecourt was regularly used as a shortcut by pedestrians who had nothing to do with the defendant or the garages located there.
On the day of the accident, neither the pavement on the T-road opposite the garage forecourt, nor the road, nor the garage forecourt had been cleared of snow and ice.
As a result of the accident, the plaintiff sustained a left tibial spiral fracture and a Weber A/B fracture on the left outer ankle. He was taken to hospital by ambulance, operated on and had to remain there for about two weeks. He was then unable to work for at least ten months.
As the defendant did not want to pay, the plaintiff brought an action before the Regional Court for damages for pain and suffering in the amount of 10,000 euros as well as compensation for damage to the household in the amount of 2,000 euros and compensation for pre-trial legal costs in the amount of 461.60 euros.
The regional court initially seised dismissed the action on the grounds that the plaintiff had not been able to prove that the fall had occurred on the defendant's property and not on the road.
The plaintiff appealed against this decision to the Hamm Higher Regional Court.
Hamm Higher Regional Court: The Hamm Higher Regional Court also dismissed the appeal, albeit for different reasons than the Regional Court. In this case, there was no breach of the defendant's duty to maintain road safety necessary for the plaintiff's claim for damages.
The actual toleration of the use of a private property by unauthorised persons may be sufficient to extend security obligations to those users of a property who, although unauthorised in principle, are tolerated.
However, in the case of mere toleration of private traffic, the content of the security obligations should not be subject to excessively high requirements.
According to these principles, a breach of the duty to maintain road safety could be ruled out in the present case. The slippery snow and ice on the forecourt of the garage was clearly recognisable, as the photos in the file show. Furthermore, the health risk posed by the existing slipperiness was not so great and incalculable that safety measures would have been necessary for this reason.
The plaintiff was also not forced to use this uncleared, private traffic area, but was able to switch to the public traffic areas by using the public road or the pavement.
Source: Higher Regional Court of Hamm
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