BGHZ 58, 162 VI. Civil Senate (VI ZR 128/70) Gehweg -decision = NJW 1972, 904 = JZ 1972, 559
16 February 1972
including important article by E. Deutsch in JZ 1972, 551 = VersR 1972, 560
Translated by:
F.H. Lawson and B.S. Markesinis
Professor B.S. Markesinis

On 21 June 1968 there was a traffic accident on L Street in B. A lorry of the Dutch armed forces, in an attempt to overtake an automobile which was in course of parking, collided with an oncoming car. Both drivers left their vehicles in the narrow passage made by the parking vehicle, waiting for the arrival of the police. In consequence the highway was, for the time, blocked for the following car drivers. Thereupon several drivers, who could not make headway because of the lorry in front of them, drove round on to the sidewalk to the right of the scene of the accident. About fifteen minutes later, when the police arrived, substantial damage had been done to the sidewalk. The city of B, as owner of the highway, had to spend DM 1736.58 to clear it up.

The drivers who drove on the sidewalk have not been identified.

The Bundesrepublik, under the provisions of NATO Armed Forces Statute, compensated the owner of the car struck by the army lorry. The plaintiff city contended that the Bundesrepublik must also make good the damage done by those drivers in driving on the sidewalk.

Whereas the Landgericht rejected the claim, the Oberlandesgericht allowed it.

On appeal, by leave of the Oberlandesgericht, the Bundesgerichtshof restored the judgment of the Landgericht for the following


The Federal Republic, as is agreed between the parties, has, under the provisions of the NATO Armed Forces Statute, assumed liability for damage done by the lorry of the Dutch armed forces as if it had been done by a lorry of the German forces. The claim is based on § 839 BGB, in combination with Art. 34 of the Constitution, so that liability under §§ 831, 823 BGB combined with the provisions of the Road Traffic Ordinance is excluded. According to the second sentence of § 839 I BGB, the plaintiff city would have had to show that it could not have obtained compensation in any other way for the damage—in particular, not from the drivers who had actually caused the damage and who, if they had been ascertained, would doubtless have had to make it good.

There is no dispute between the parties that the conditions for this liability are satisfied. For, as the judgment under attack establishes, the driver of the lorry was even at fault, since the strict liability is not excluded by unavoidable circumstances (§ 7 II StVG). The only question is whether the damage that the drivers who were forced to halt behind the lorry did in driving round on the sidewalk would be traced back to a conduct giving rise to liability, in this case the occupational hazard of this lorry, for which the operator is responsible. The Court of Appeal said yes.

II. This standpoint cannot be accepted.

1. Admittedly, approval must be given to the Court of Appeal’s holding that the causal connection between the conduct of the lorry-driver and the damage to the sidewalk was even in this case adequate (the decision of the District Court of Düsseldorf in the ‘Greenbelt’ case, is, to this extent, sound). It is well known that in cases like this drivers constantly—no doubt in breach of traffic regulations and subject to punishment for malicious damage (§ 303 StGB)—do not wait long enough for passage to be possible or for a diversion to be allowed by the traffic police. In view of the experience that the conduct of such drivers will always recur, it may also be assumed that a driver must foresee that an accident caused by him in the flow of traffic may lead to such reactions on the part of following drivers, with ensuing damage to the public streets, private front gardens, fences, and so on. Nevertheless, in the present case, there is no absolute need to discuss fault as a ground for liability, because the plaintiff city can base its claim on § 7 StVG.

The appeal wrongly casts doubt on the view of the Court of Appeal that the lorry was ‘in operation’ when such drivers passed over the sidewalk. The lorry had not been taken out of circulation when it came to a stop but prevented other vehicles from going forward. For the purposes of § 7 StVG the operation of an automobile lasts as long as the driver leaves it in circulation and the danger involved by it persists (BGHZ 29, 163, 166). Moreover, the diversion made by the impatient drivers is still in close connection, in both time and place, with the collision caused by the lorry (cf. BGHZ 37, 311, 318). If a following automobile, in an attempt to avoid striking the lorry in front of it, braked and skidded and so invaded the sidewalk, the damage caused would certainly fall within the operational hazard of the lorry. Nor would it be different if a following driver, in order not to collide or not to be overrun by subsequent participants in the traffic, had deliberately turned on to the sidewalk.

2. If, therefore, the adequate causal connection and the connection with the operational hazard of the lorry are admitted to exist, the decision of the dispute depends on whether such consequences also can be imputed to a causer of damage as rest upon the ‘free’ decision of a third party (so-called ‘breach of the causal connection’ or ‘no recourse’). That question does not depend, in cases of this kind, on whether the injured party bases his claim on § 823 II (in combination with the provisions of the StVG) or on § 823 I BGB or on § 839 BGB or, as here on the ground that the highway was blocked by an automobile, on §§ 7, 18 StVG.

(a) Despite the contention of the appellant this imputation is not to be rejected on the ground that such impatient drivers acted deliberately and unlawfully in driving on the sidewalk.

The imputation of damage is not automatically excluded by the intervention of a third party (BGHZ 12, 206, 211; 17, 153, 159; 24, 263, 266). Only when the causal nature of the first state of facts is completely irrelevant to the second event can it be said that the causal connection is ‘broken’ (BGHZ 3, 261, 268; 17, 159). That is not the case here. That such drivers caused the damage unlawfully does not stand in the way of the imputation. Whether the intervention of the third party was unlawful is of no decisive importance for the question of imputation.

Just as irrelevant is it that a person is acquitted of liability for damage done by a third party on the ground that the latter acted wilfully. Accordingly, the driver and operator, whose automobile collided with a lorry so that its load fell on to the highway, must compensate not only for the goods that were damaged by the fall, or could not be put in safe-keeping, but also the goods stolen from among those strewn on the highway. There the person liable for the fall cannot refer the injured party to his claim against the thieves; that damage also may be imputed to him, on the ground that he created the danger of their being stolen. That those consequences of his conduct causing liability (that is to say the operation of the damage-causing automobile, or the traffic blunder of his driver) no longer fell into the class of risks for the avoidance of which rules of liability are prescribed (§§ 7, 18 StVG; §§ 823 ff. BGB, in combination with the provisions of the StVG), cannot be accepted (cf. BGHZ 27, 137, 140). Such duties to assume risks may also be established by statute. Thus, under certain circumstances, the duty of care of a person participating in traffic may extend so far that he must take care that he does not, by defective behaviour, induce third parties to contravene wilfully the road traffic rules. Above all, the operator of an automobile is answerable for all damage that is connected with the operation of his vehicle, irrespective of the way its dangerous character has caused damage in a particular case; he is liable also for damage a joy-rider knowingly and deliberately causes by his vehicle, even for the reckless killing of a human being (BGHZ 37, 311, 316/317).

(b) On mature consideration, however, the case to be decided appears to be different. The drivers, once they came to a halt on the road, drove onto the sidewalk of their own free will. That was connected with the accident, and so with the manner of driving the lorry and the operational hazard involved in it, only so far as the accident and its blocking of the road provided an occasion for the behaviour of the drivers. This was, however, no more than an external circumstance which gave the motivation for wilful conduct, without regard for the public safety, of the drivers. It cannot, therefore, be regarded as a sufficient foundation for an imputable connection (cf. also BGHZ 25, 86, 90; Senate decision of 12 February 1963—VI ZR 181/62). Above all, it cannot be said here that the conduct of the lorry-driver and the blocking of the highway ‘provoked’ the conduct of the drivers (cf. BGHZ 57, 25, 28). The blocking of the highway did not constitute such a situation compelling the intervention of the third parties. As regards the damage to the border strip, the impatient drivers alone, and not the lorry-driver, were ‘masters’ of their injurious conduct. Accordingly, the present case affords no opportunity for examining whether, in discussing ‘provocation’ of the reckless conduct of a third party, effect should be attributed to the degree and importance of the danger caused to the property of others. The decision of the dispute follows from the principle that the activities which are important in deciding the imputation of a damage must always be made the subject of a valuation (BGHZ 18, 286, 288; 30, 154, 157; Senate decisions of 8 January 1963—VI ZR 80/62 and 12 February 1963—VI ZR 181/62—823 BGB).

In making the valuation there is no connection sufficient to ground liability between the conduct of the lorry-driver and the damage, even if, in the plaintiff’s interest, attention is focused not only on § 7 StVG, but also on the fault of the lorry-driver which led to the collision. Here the law, and above all the traffic ordinance, clearly distinguished the spheres of liability: the driver and operator of the lorry were liable for the collision and its consequences to others involved in the accident as well as for all objects thereby damaged. For the damage to the sidewalk on the other hand, only the drivers who drove on it are answerable. The current instructions and prohibitions applicable to the lorry-driver protected the interests of those who, with their property, were near the highway only to the extent that the driver was not allowed to invade the pedestrian path with his lorry or to afford an occasion for other vehicles to swerve onto the ground next to the road in order to avoid a collision. But what happened after the accident, as a result of other vehicles driving over the sidewalk in order to get on more quickly, does not fall within his sphere of duty. The lorry-driver was not in a position either in fact or in law to hinder them. That the imputation made by the Court of Appeal goes too far is also plain because the plaintiff city, if it were correct, could claim also against the operator of the car with which the lorry collided, if he did not succeed in exonerating himself under § 7 II StVG; and in certain circumstances the concurrent liability of the automobile which was being parked on the right might have to be considered. It would also be going too far to hold an operator liable for the damage done by the following drivers driving onto the sidewalk if, as a result of failure in its equipment, the lorry had slid across the road.

3. After all, it was not here the operational hazard of the lorry or the driver’s way of driving that in any imputable way led to the damage of the sidewalk. That might, to be sure, have happened because the driver of the lorry left it standing until the police arrived in answer to their call. If the resulting hindrance to traffic (cf. § 1 StVG) had no longer had a reasonable justification, this conduct could have created a liability for the damage done by the impatient drivers (§§ 823 I and II, 839 BGB), so that the operator also (according to § 831 BGB, here the defendant according to Art. 34 of the Constitution) might be liable. But a liability on this ground must be legally distinguished from the liability due to the preceding conduct for the actual consequences of the accident. The liability could also affect anyone who blocked the highway not by a vehicle or had not been to blame for the accident.

Under what conditions such a liability should be allowed to exist needs no examination here. The plaintiff city has made no complaint against the driver on these lines.

III. The plaintiff city therefore can have recourse to those drivers only for the damage done by them. It runs the risk, if their identity can no longer be ascertained, of having ultimately to bear the damage. That is, however, a general loss that falls on anyone who has property adjoining a road used for traffic and one that it cannot shift off onto the defendant. In consequence the decision appealed from cannot stand.

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