On 8 January 1919 and the following days several people went to the All Saints Hospital in B to be treated for scabies. They were rubbed with an ointment which, though thought to be the normal sulphur ointment, was in fact extremely poisonous with chromium. The treatment resulted in the death of Joh. Sch. and of Ha., a coachman, whose mother and heirs are respectively plaintiffs, and in severe injury to Miss Ch. H. The fatal ointment had been supplied to the city B by an independent apothecary.

These are suits for damages against the city B. Miss Ch. H seeks an indemnity for her medical expenses, loss of earnings, and damaged clothing, as well as damages for pain and suffering and a decree that the defendant is liable for any future damage due to the chromium poisoning. Mrs Sch. claims burial expenses and an indemnity for the support her son would have provided had he lived. Ha.’s widow and children likewise claim for loss of support.

The Landgericht gave judgment for all the plaintiffs. The Oberlandesgericht dismissed the claims of Ch. H and of Ha.’s heirs, and dismissed also the city’s appeal in the case of Frau Sch. Appeal has been brought to this court by Ch. H, the heirs of Ha., and the city. The judgment below is vacated, and the matter remanded to the Court of Appeal for further proceedings.

Reasons

All Saints Hospital is primarily a charitable institution through which its owner, the city B, performs its public welfare functions by providing poor patients with free medical treatment and, in suitable cases, free board and nursing as well. Its relationship with these patients is purely one of public law with no private law elements. But other patients pay a fee, fixed according to a sliding scale, for treatment and nursing in the hospital, and these people are admitted under a contract of private law, whether of services or of some other kind (see RGZ 64, 231; 83, 71; 91, 134 and 263). Thus the duties of the city and the consequences of their breach are determined for the first class of patients by public law, and for the second class by the contract law of the BGB, unless, of course, tort law applies.

Ch. H, Joh. Sch., and Ha. were treated in the All Saints Hospital with a poisonous chromium mixture instead of the normal sulphur ointment. Sch. and Ha. died, but Ch. H regained her health after a long period in hospital. The fatal ointment was first used on 8 January 1919. According to the Court of Appeal, the mere fact of this occurrence betokens no fault on the part of the city. The court accepted the testimony of Professor J that the nurses who were applying the ointment would not be alerted by the fact that it was greenish in colour rather than yellow: the usual ointment used to vary in colour because the Vaseline used during the war and immediately thereafter was not uniform. The poisonous ointment was purchased from an independent apothecary. Of course, the hospital doctors were not bound to test the ointment before using it: it would take far too much of a doctor’s time and energy if he had to check the composition of every medicament he prescribed. For this occurrence, then, only the apothecary is responsible.

But the Court of Appeal found that on the first application of the ointment on 8 January, many of the patients screamed and one of them had a fit of vomiting. Such reactions are normally rare and sporadic, so the number of them on this occasion should have led the nurses to inform Dr U or some other doctor in the hospital immediately, and the doctor should then have had the ointment checked forthwith. Then its odd colour would have confirmed the suspicion that it had been incorrectly made up. Had this happened, the Court of Appeal found, the poisonous quality of the ointment would have been discovered that very day, and the fateful events of the following two days would have been avoided. As it was, either the nurses failed in their duty to inform the doctors, or the doctors failed in their duty to investigate.

Up to this point the views of the Court of Appeal are logical and correct, but hereafter their analysis of the case, both factually and legally, is inadequate.

1. When the clinic accepted Ch. H for treatment as a charity patient, there arose between her and the city a relationship in public law which imposed on the city a public law duty to treat her in an appropriate way without endangering her life and limb, and gave Ch. H a right in public law to have such treatment. Thus there was superimposed on the city’s general welfare duties a specific obligation to Ch. H with a defined content such as to render the city liable if this obligation were broken by the fault of the person whose services the city used in the performance of its obligation. As this Senate held on 11 March 1921 (RGZ 102, 6; see also RGZ 98, 343), the legal idea which applies in private contract law by reason of its expression in § 278 BGB applies in public law relationships as well, unless there is some special feature in a case which excluded its application. No such feature is present here; indeed, to hold that the principle of law contained in § 278 BGB was inapplicable to the public law relationship between a commune and a charity patient in a communal hospital would be to pervert the very notion of welfare.

Ch. H was given the ointment treatment on 8 January, and very early on that day, since she presented herself at the clinic at 7 a.m. and was back home two and a half hours later. As has been established, neither the nurses nor the doctors were negligent in the original treatment, but if the requisite care had been taken and the ointment investigated, then, as the Oberlandesgericht found, the dreadful mistake made by the apothecary would have been discovered that very day. The city should then have informed Ch. H immediately—for her name and address were in their books—of any possible counter- measures. This would have been not just an act of humanity, but part of its public law duty towards her. The judges of fact must therefore investigate, with the aid of experts if need be, whether Ch. H’s injuries could have been avoided or reduced if such a communication had been made, that is, whether and how far the failure to make it was a cause of the plaintiff’s suffering. Even if this question is resolved in favour of Ch. H, however, she will still have no claim for damages for pain and suffering, for according to § 253 BGB, money damages can be awarded for non-economic harm only in the cases prescribed by law. The idea here expressed by the legislator is that in the normal case one does not have to pay for the so-called immaterial harm one may cause. An exception is made in § 847 BGB which imposes an obligation to repair such harm in cases of injury to body and health, but it only applies when such harm results from an unlawful act as laid down in the BGB. Thus § 847 BGB cannot give rise to a claim when the defendant’s liability is based only on faulty breach of a contractual obligation (see RGZ 65, 17; JW 1910, 112 no. 13). Just as this exceptional rule cannot be applied by analogy to breach of contractual duties, so it cannot be applied to faulty breaches of public law obligations.

Only if the city were liable in tort as well as for breach of its public law duties would Ch. H’s claim for damages for pain and suffering be good. On this point also the views of the Court of Appeal seem inadequate. There is nothing wrong with its finding that the city was free from fault with regard to the provision of the ointment, and in its choice and appointment of its doctors and nurses. There was no need to direct or supervise the application of the ointment, as such a mechanical task was well within the competence of trained nurses. Thus the city cannot be made liable under § 831 BGB. But that does not conclude the matter. One must distinguish between the duty of a business or institution to supervise the performance of individual tasks and its general duty to supervise, monitor, and instruct, for breach of which it may be liable under § 823 BGB, a liability which attaches to a commune if the breach is due to one of its constitutional representatives under §§ 31, 89 BGB. What the precise implications are of this general duty of supervision must depend on the individual case, and especially on whether the execution and supervision of tasks has been entrusted to knowledgeable persons who are familiar with them and who have proved themselves reliable. It will only be very rarely that a business or institution will be able to exempt itself entirely from its duty to exercise this control (see RGZ 53, 53 and 276; 82, 206; 95, 181; 96, 81; JW 1906, 547 no. 13; JW 1906, 75 no. 16; JW 1909, 659 no. 10).

In the present case, the city is performing a welfare function, and poor patients trust it with their greatest assets, namely their health and life. It follows that the city must issue instructions through its top management that it is the duty of nurses to inform the doctors whenever any medicament has an unexpected effect and whenever anything unusual occurs on its being administered and that it is the duty of the doctors, if so informed, to make an immediate investigation. But this does not exhaust the city’s duties in the matter. It is not enough simply to issue these instructions: the city must also see to it by suitable occasional checks that they are being followed. From the opinion below we cannot tell whether the city has satisfied its general duties of instruction and supervision, any breach and its causal effect being for the plaintiff to establish, with any possible assistance from the rules regarding prima-facie proof. The tort aspects of Ch. H’s suit therefore require further investigation.

2. With regard to the death of young Sch., the Oberlandesgericht held that although he paid no fee to the hospital when he was accepted for treatment, he thereupon entered into a private law contract with the city. Were this so, then his mother’s suit must fail, for in a contractual claim she could only claim for the harm which her son had suffered as a result of breach by his contractor, and her claim was for a loss which had befallen the mother rather than the son, namely the loss of the support which Joh. Sch. would have been bound to provide had he lived. Such a claim, which is at odds with the general principle that compensation may be claimed only by the person directly affected, could only be based on § 844 II BGB, and that provision requires that her son’s death be attributable to a tort for which the city is responsible through its constitutional organs. § 844 II has no application in the law of contract, any more than § 844 I (see JW 1907, 710 no. 18; JW 1908, 9 no. 9). Now the Oberlandesgericht gave no reason for holding that there was a private law contract in this case. One almost has the impression that the only reason was that unlike Miss Ch. H, Sch. did not return home after the treatment but was kept in hospital while the scabies were to be cured. But gratuitous admission to the hospital is just like gratuitous treatment to an out-patient: it is an act of public law welfare which gives rise to public law relations between the in-patient and the city. But even though the Court of Appeal was wrong to invoke private law, the decision it reached is correct in public law.

The poisonous ointment was applied to Sch. on 9 January, so his death was indubitably due to negligence on the part of either the doctors or the nurses. Now just as the principle that a debtor must answer for the fault of his assistants as he does for his own applies in public as well as private law, so do the legal ideas expressed in § 844 BGB. If it were otherwise, public law would be intolerably and unjustifiably defective. Nevertheless, we cannot yet affirm the decision of the Oberlandesgericht in favour of Frau Sch. since it is possible that even though Sch. did not actually pay the hospital as required by the tariff for money patients, he might nevertheless be under a duty to pay and so have entered into a private law contract with the city. Thus in this case also we need further facts, including whether the city was guilty of any breach of its general duty of supervision (see §§ 823, 31, 89 BGB) . . .

Notes to Cases: 95-121

1. Most of these cases illustrate (i) the difficulties experienced by German law as a result of § 831 BGB and (ii) the ways used by the courts to produce a more sensible result. Thus, cases 100, 105, 106, and 107 show how the employer must supervise his employee properly and constantly or otherwise run the risk of being held liable under § 823 I BGB for breach of his own primary duty; case 96 discusses issues relevant to § 31 BGB; cases 98 and 109 discuss the thorny question of ‘unlawfulness’ in the context of § 831 BGB (though much of the reasoning in the latter case appears to have become obsolete); cases 111-121 illustrate what is, perhaps, the most ingenious way of bypassing § 831 BGB, namely by invoking the aid of the law of contract. As Zweigert and Kötz have put it (An Introduction to Comparative Law, 2nd ed. II, 147):

The sole purpose of these decisions is to put the accident victim in a better position than if his only claim for damages were based on delict. Under German law, with regard to prescription, burden of proof and especially vicarious liability, a victim is in a much better position to claim damages if he can claim in contract for the harm he has suffered. Not the slightest blame attaches to the German courts for using the contract for the benefit of third parties in order to get round the misconceived legal policy contained in § 831 BGB; nor is there anything wrong with what they have done as a matter of positive law. Nevertheless, it must be seen that these are cases where the harmful consequences of accidents are attributed to the person responsible, not because he is guilty of any breach of specifically contractual duties but because he has committed a breach of general duties of care imposed by the law of delict. The position of German law may be excused by the necessity caused by the unfortunate policy of § 831 BGB, but the comparative lawyer has to classify problems according to the true significance of their actual facts. These cases must therefore be put in the law of tort, as is done everywhere else in the world. In doing so, the comparatist must realize that it may be necessary to study a person’s contractual relations with third parties in order to discover to whom he owes his delictual duties of care not to cause harm.

But this solution is, at best, only a partial one. Claims formed in contract cannot, because of another troublesome provision (§ 253 BGB), compensate the plaintiff for his pain and suffering (contrast § 847 BGB). The return to the law of delict thus not only produces an intellectually neater classification; it can also benefit the victims (see case 120). The growing tendency to invoke § 823 I BGB, by discovering what the Common lawyers would call non-delegable duties, may then be described as a move in the right direction (for illustrations see cases 95, 101, 114, 115 etc.). From the little said in this paragraph, it should be clear that these cases must be read in close conjunction with the text of Ch. 3, section A.

2. The cases and the preceding commentary make it clear that there exist some important structural differences between German law on the one hand and the Common law on the other. One further difference of classification must also be noted with American Common law: in the latter, vicarious liability is a subject, which is shared between agency and tort and the two relative Restatements. Thus, the master–servant relationship and the notion of ‘scope of employment’ are defined in §§ 220 and 229 of the Restatement (Second) of Agency, (and are reproduced below in Addendum 1). On the other hand, liability for independent contractors is treated in §§ 409–29 of the Restatement (Second) of Torts. Tort books that discuss (briefly) the matters raised in this chapter include Dobbs, The Law of Torts (2000), pp. 905 et seq.; Fleming, The Law of Torts, 9th ed. (1998), pp.409 et seq.

3. Once the above points are well digested, the comparatist should experience no difficulty in understanding what is happening in ‘the other system’, the differences being differences in emphasis or detail rather than substance. Thus, the rationale for imposing vicarious liability is the same everywhere: the belief that it is more efficient to place the risk on the employer’s shoulders than on the employee’s. The same rationale also seems to favour the more modern tendency not to allow masters (or, more likely, their insurers) the right to claim contribution or an indemnity from the servant unless the latter’s conduct was intentional and grossly negligent. (For English law see Markesinis and Deakin, Tort Law 4th ed. (1999), ch.6 ; for American law see Comment, 34 La. L. Rev. 79 (1973); Note, 53 Or. L. Rev. 366 (1974).) The tendency to make employers rather than employees liable also accounts for the increased willingness to give a wide meaning to such inherently ambiguous notions as ‘course of employment’. As already noted, German law is, perhaps, the strictest in this respect, with French and American law showing a clear willingness to include even acts of violence which the servant’s employment merely gave him the opportunity to commit. The French decision which held the employer of a cinema attendant vicariously liable for the latter’s rape of a cinema patron (Crim. 5 nov. 1953, D. 1953, J. 698) has happily not been followed in the US: see Mays v. Pico Finance Co., 339 So. 2d 382 (La. App. 1976). But there are other just as grotesque examples; thus in Miller v. Keating 349 So. 2d 265 (La. 1977) the attempted murder of a company employee by some of his co-employees was held to be within the scope of their employment since the corporation (the Common employer) was the beneficiary of the victim’s insurance policy—a conclusion which led one commentator to remark that ‘cynicism reaches new heights when attempted murder becomes regarded as “fair and reasonably incident” to corporate offences’! (Comment, 52 Tul. L. Rev. 443, 450 (1978).) But, as stated in Section A of Chapter 3, this point need not be laboured too much: aberrant cases can always be found and the vagueness of such notions as ‘course of employment’ may also be their main virtue since it provides the desirable degree of flexibility in decisions. (For French law and the possibility that the insurance factor may in some cases account for such wide interpretations see Hassler, ‘La responsabilité des commettants’ D. Chron. (1980) 125–8; Markesinis, ‘La perversion des notions de la responsabilité civile délictuelle par la pratique des assurances’, Rev. int. dr. comp., 301 (1983).)

4. Lack of space prevents a more detailed annotation of the cases but three more points can be made briefly. First, in the case of borrowed servants, American law until recently took a different view from English and German law and tended to make the ‘special or temporary employer’ liable for the torts of the borrowed servant on the grounds, inter alia, that he had (at the moment of the accident) the benefit of the services of the borrowed servant. See Lewis v. Potter, 149 Mont. 430, 427 P. 2d 306 (1967). Recent decisions, however, suggest an opposite movement (for example, Salsgiver v. E. S. Ritter Co., 42 Ore. App. 547, 600 P. 2d 951 (1979); LeSuer v. LeSuer, 350 So. 2d 796 (Fla. App. 1977)); and, as stated, Californian courts have favoured plaintiffs further by allowing the victim to sue both employers and then let them solve their internal relationship: Strait v. Hale Constr. Co., 26 Cal. App. 3d 941, 103 Cal. Rptr. 487 (1972).

Secondly, American courts have developed the family purpose doctrine which, in some circumstances, makes car owners vicariously liable for harm caused by persons to whom the vehicles were loaned or made available. Although attempts to introduce the doctrine in England were made by Lord Denning MR in Launchbury v. Morgan, they met with the disapproval of the House of Lords which felt that the matter should best be left to the legislator to settle. Needless to say, the legislator these days does not have the time to intervene in such matters of relative detail with the result that in cases such as these the English victim may be in a less favourable position than his American counterpart.

Finally, § 831 BGB and the growth of the non-delegable duty device in Germany and England must be compared carefully with §§ 409–29 of the American Restatement (Second) of Torts. The text of the basic rule (§ 409 on liability of torts of independent contractors) and the exceptions are reproduced below in Addendum 2. A glance at these rules makes it clear that the exceptions are gradually swallowing up the rule, a result which led one American court to say that ‘. . . it would be proper to say that the rule is now primarily important as a preamble to the catalog of its exceptions’. (Pacific Fire Ins. Co. v. Kenny Boiler & Mfg. Co., 277 NW 226 (1937)).

Addendum 1

Restatement (Second) of Agency

§ 220. Definition of servant

(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

( f ) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the employer;

(i) whether or not the parties believe they are creating the relation of master and servant; and

(j) whether the principal is or is not in business.

§ 229. Kind of conduct within the scope of employment

(1) To be within the scope of employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.

(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:

(a) whether or not the act is one commonly done by such servants;

(b) the time, place, and purpose of the act;

(c) the previous relations between the master and the servant;

(d) the extent to which the business of the master is apportioned between different servants;

(e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;

( f ) whether or not the master has reason to expect that such an act will be done;

(g) the similarity in quality of the act done to the act authorized;

(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;

(i) the extent of departure from the normal method of accomplishing an authorized result; and

(j) whether or not the act is seriously criminal.

Addendum 2

Restatement (Second) of Tort

§ 409. General principle

Except as stated in §§ 410–29, the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants.

§ 410. Contractor’s conduct in obedience to employer’s directions

The employer of an independent contractor is subject to the same liability for physical harm caused by an act or omission committed by the contractor pursuant to orders or directions negligently given by the employer, as though the act or omission were that of the employer himself.

§ 411. Negligence in selection of contractor

An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor

(a) to do work which will involve a risk of physical harm unless it is skilfully and carefully done, or

(b) to perform any duty which the employer owes to third persons.

§ 412. Failure to inspect work of contractor after completion

One who is under a duty to exercise reasonable care to maintain land or chattels in such condition as not to involve unreasonable risk of bodily harm to others and who entrusts the work of repair and maintenance to an independent contractor, is subject to liability for bodily harm caused to them by his failure to exercise such care as the circumstances may reasonably require him to exercise to ascertain whether the land or chattel is in reasonably safe condition after the contractor’s work is complete.

§ 413. Duty to provide for taking of precautions against dangers involved in work entrusted to contractor

One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer

(a) fails to provide in the contract that the contractor shall take such precautions, or

(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.

§ 414. Negligence in exercising control retained by employer

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

§ 414A. Duty of possessor of land to prevent activities and conditions dangerous to those outside of land

A possessor of land who has employed or permitted an independent contractor to do work on the land, and knows that the activities of the contractor or conditions created by him involve an unreasonable risk of physical harm to those outside of the land, is subject to liability to them for such harm if he fails to exercise reasonable care to protect them against it.

§ 415. Duty to supervise equipment and methods of contractors or concessionaires on land held open to public

A possessor of land who holds it open to the public for any purpose is subject to liability to members of the public entering for that purpose for physical harm caused to them by his failure to exercise reasonable care to protect them against unreasonably dangerous activities of, or unreasonably dangerous conditions created by, an independent contractor or concessionaire employed or permitted to do work or carry on an activity on the land.

§ 416. Work dangerous in absence of special precautions

One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions.

§ 417. Work done in public place

One who employs an independent contractor to do work in a public place which unless carefully done involves a risk of making the physical condition of the place dangerous for the use of members of the public, is subject to liability for physical harm caused to members of the public by a negligent act or omission of the contractor which makes the physical condition of the place dangerous for their use.

§ 418. Maintenance of public highways and other public places

(1) One who is under a duty to construct or maintain a highway in reasonably safe condition for the use of the public, and who entrusts its construction, maintenance, or repair to an independent contractor, is subject to the same liability for physical harm to persons using the highway while it is held open for travel during such work, caused by the negligent failure of the contractor to make it reasonably safe for travel, as though the employer had retained the work in his own hands.

(2) The statement in subsection (1) applies to any place which is maintained by a government for the use of the public, if the government is under the same duty to maintain it in reasonably safe condition as it owes to the public in respect to the condition of its highways.

§ 419. Repairs which lessor is under a duty to his lessee to make

A lessor of land who employs an independent contractor to perform a duty which the lessor owes to his lessee to maintain the leased land in reasonably safe condition, is subject to liability to the lessee, and to third persons upon the land with the consent of the lessee, for physical harm caused by the contractor’s failure to exercise reasonable care to make the land reasonably safe.

§ 420. Repairs gratuitously undertaken by lessor

A lessor of land who employs an independent contractor to make repairs which the lessor is under no duty to make, is subject to the same liability to the lessee, and to others upon the land with the consent of the lessee, for physical harm caused by the contractor’s negligence in making or purporting to make the repairs as though the contractor’s conduct were that of the lessor.

§ 421. Maintenance of structures on land retained in lessor’s possession necessary to tenant’s enjoyment of leased land

A possessor of land who, having a part of the land, is under a duty to maintain in reasonably safe condition the part retained by him, and who entrusts the repair of such part to an independent contractor, is subject to the same liability to the lessee, and to others upon the retained part of the land with the consent of the lessee, for physical harm caused by the negligence of the contractor in failing to maintain such part of the land in reasonably safe condition, as though the lessor had himself retained the making of the repairs in his own hands.

§ 422. Work on buildings and other structures on land

A possessor of land who entrusts to an independent contractor construction, repairs, or other work on the land, or on a building or other structure upon it, is subject to the same liability as though he had retained the work in his own hands to others on or outside the land for physical harm caused to them by the unsafe condition of the structure

(a) while the possessor has retained possession of the land during the progress of the work, or

(b) after he had resumed possession of the land upon its completion.

§ 422A. Work withdrawing lateral support

One who employs an independent contractor to do work which the employer knows or should know to be likely to withdraw lateral support from the land of another is subject to the same liability for the contractor’s withdrawal of such support as if the employer had retained the work in his own hands.

§ 423. Making or repair of instrumentalities used in highly dangerous activities

One who carries on an activity which threatens a grave risk of serious bodily harm or death unless the instrumentalities used are carefully constructed and maintained, and who employs an independent contractor to construct or maintain such instrumentalities, is subject to the same liability for physical harm caused by the negligence of the contractor in constructing or maintaining such instrumentalities as though the employer had himself done the work of construction or maintenance.

§ 424. Precautions required by statutes or regulation

One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.

§ 425. Repair of chattel supplied or land held open to public as place of business

One who employs an independent contractor to maintain in safe condition land which he holds open to the entry of the public as his place of business, or a chattel which he supplies for others to use for his business purposes or which he leases for immediate use, is subject to the same liability for physical harm caused by the contractor’s negligent failure to maintain the land or chattel in reasonably safe condition, as though he had retained its maintenance in his own hands.

§ 426. Negligence collateral to risk of doing the work

Except as stated in §§ 428 and 429, an employer of an independent contractor, unless he is himself negligent, is not liable for physical harm caused by any negligence of the contractor if

(a) the contractor’s negligence consists solely in the improper manner in which he does the work, and

(b) it creates a risk of such harm which is not inherent in or normal to the work, and

(c) the employer had no reason to contemplate the contractor’s negligence when the contract was made.

§ 427. Negligence as to danger inherent in the work

One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.

§ 427A. Work involving abnormally dangerous activity

One who employs an independent contractor to do work which the employer knows or has reason to know to involve an abnormally dangerous activity, is subject to liability to the same extent as the contractor for physical harm to others caused by the activity.

§ 427B. Work likely to involve trespass or nuisance

One who employs an independent contractor to do work which the employer knows or has reason to know to be likely to involve a trespass upon the land of another or the creation of a public or a private nuisance, is subject to liability for harm resulting to others from such trespass or nuisance.

§ 428. Contractor’s negligence in doing work which cannot lawfully be done except under a franchise granted to his employer

An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.

§ 429. Negligence in doing work which is accepted in reliance on the employer’s doing the work himself

One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.

3. Road Traffic act of 19 December 1952 [BGBl I., 837]

(as amended)

Contents
I Traffic Rules sections 1–6d.
II Liability sections 7–20.
III Penalties and Administrative Fines sections 21–7.
IV Central Traffic Register sections 28–30.
II Liability

§ 7 Liability of the Keeper of a Vehicle

(1) If in the course of the operation of a motor vehicle a person is killed, the body or the health of a person is injured or an object is damaged, the keeper of the motor vehicle is obliged to compensate the injured party for the damage resulting therefrom.

(2) The duty to compensate is excluded, if the accident was caused by an unavoidable event which is not due to a defect in the construction of the vehicle or to the failure of its mechanism.

An event is deemed to be unavoidable in particular if it is due to the conduct of the injured party or of a third party who is not an employee or an animal and if both the keeper and the driver of the vehicle have applied that care which is required in the light of the circumstances.

(3) If somebody uses the vehicle without the knowledge and consent of the keeper of the vehicle that person is liable to pay compensation for the damage in the place of the keeper; in addition the keeper himself remains liable to pay compensation if the use of the motor vehicle was facilitated by his negligence. The first sentence of this paragraph does not apply if the person using the vehicle was employed by the keeper for the purpose of operating the vehicle or if he was entrusted with the vehicle by the keeper.

§ 8 Exceptions

The provisions of § 7 do not apply, if the accident was caused by a vehicle which cannot proceed at a speed exceeding 20 kilometres on level ground or if the injured person was employed in operating the motor vehicle.

§ 8a Liability to Passengers in the Course of Commercial Transport of Persons

(1) If a passenger in a motor vehicle has been killed or injured, the keeper of the vehicle is only liable in accordance with § 7 if a commercial transport of passengers for remuneration is involved.

If an object has been damaged which was carried by a motor vehicle, the keeper of the vehicle is only liable under § 7 if a person who is carried in the vehicle in the circumstances envisaged in § 7 carries the object on himself or with himself.

The commercial character of a transport of passengers in the meaning of the first and second sentences is not excluded by the fact that the transport is performed by a corporation or institution governed by public law.

(2) The duty of the keeper to pay compensation in respect of the death or injury suffered by a passenger in accordance with para. 1, final sentence, in conjunction with § 7 cannot be excluded or restricted. Any provisions or arguments to the contrary are invalid.

§ 9 Contributory Negligence of the Injured Party

If the injured party contributed to the damage by his negligence, § 254 BGB applies with the proviso that if an object was damaged, negligence on the part of the person exercising factual control over the object is treated as equivalent to negligence on the part of the injured party.

§ 10 Extent of Liability in the Case of Death

(1) In the case of death, damages to be paid comprise compensation for the expenses of an attempted cure and for the economic loss which the deceased has suffered because his earning capacity was destroyed or reduced during his illness or because his needs were increased. The person liable to pay damages must also reimburse the cost of the burial to the person responsible for it.

(2) If at the time of the injury the deceased stood in a relationship to a third party by virtue of which he was legally bound to maintain the latter, or might become so liable, and if as a result of the death the third party has lost the right to maintenance, the person liable to pay compensation must pay damages to the third party to the extent that the deceased would have been liable to pay maintenance during the probable duration of his life. The duty to compensate arises even if the third party was conceived at the time of the injury, but had not yet been born.

§ 11 Extent of Liability in the Case of Injury to the Person

In the case of injury to the person or to health, the damages comprise compensation for the expenses of the cure and for the economic loss which the injured party suffered because his earning capacity was temporarily or permanently destroyed or reduced as a result of the injury or because his needs have increased.

§ 12 Maximum Amount of Liability

(1) The person who is bound to pay compensation is liable to pay:

1. Where one person was killed or injured a lump sum of up to DM 500,000 and no more or periodic payments up to DM 30,000 per annum;

2. Where several persons were killed or injured in the same event, notwithstanding the limits laid down in (1), a total lump sum of DM 750,000 and no more or periodical payments of DM 45,000; this restriction does not apply, however, in the cases of § 8a, para. 1, first sentence in so far as the liability of the keeper of the vehicle is concerned;

3. Where an object was damaged, up to an amount of DM 100,000 even if several objects were damaged in the same accident.

(2) If the damages to be paid to several claimants involved in the same event exceed in total the maximum amount enumerated in 2., first part of the sentence, or in 3., the damages payable to each individual are reduced in proportion of the total in relation to the maximum amount.

§ 13 Periodical Payments as Damages

(1) In the future, damages in respect of the loss or the reduction of earning capacity or because the needs of the injured party have increased as well as the damages due to a third party under § 10, para. 2, must be paid by way of periodical amounts.

(2) The provisions of § 843, II to IV of the BGB apply by way of analogy.

(3) If at the time when judgment was given for periodical payments the judgment debtor was not asked to give security, the person entitled to the payment may demand security nevertheless, if the circumstances of the judgment debtor have deterioriated considerably; in the same circumstances he can demand that the security fixed by the judgment should be increased.

§ 14 Period of Limitation

The period of limitation is determined by the analogous application of the rule of the Civil Code governing the limitation of actions in tort.

§ 15 Duty to Give Notice—Laches

The claimant for damages forfeits the rights granted by the provisions of this law, unless he had given notice of the accident to the person liable to pay compensation within six months after having ascertained the damage and the identity of the person liable to pay compensation. Forfeiture does not take place if the failure to give notice was due to circumstances for which the claimant for damages is not responsible or if the person liable to pay compensation has come to know of the accident by other means during the period set out above.

§ 16 Liability due to Other Legal Provisions

Any Federal provisions are unaffected according to which the keeper of a motor vehicle is more extensively liable for damage caused by the vehicle than according to the provisions of the present law or according to which another person is liable.
§ 17 Contribution among Several Persons Liable to Pay Compensation

(1) If damage is caused by several motor vehicles and if the keepers of the vehicles involved are bound by law to pay compensation to a third party, the liability to pay compensation of the keepers of the vehicles and the extent of the compensation to be paid as between themselves depends upon the circumstances, especially according to whether the damage has been caused predominantly by one or the other of the parties. The same applies to the liability of one of the keepers of the vehicles if the damage was caused to another keeper of a vehicle involved in the accident.

(2) The provisions of para. (1) apply by way of analogy if the damage is caused by a motor vehicle and an animal or by a motor vehicle and a railway.

§ 18 Liability of the Driver to Pay Compensation

(1) In the circumstances covered by § 7 I, the driver of the motor vehicle is also liable to pay compensation in accordance with the provisions of §§ 8–15. No liability exists if the damage was not caused by the blameworthy conduct of the driver.

(2) The provisions of § 16 apply by way of analogy.

(3) If in the circumstances covered by § 17 the driver of a vehicle is also liable to pay compensation, his liability in relation to the keepers and duties of the other vehicles involved, to a keeper of animals or a railway undertaking is determined by the analysis application of the provisions of § 17.

§ 19 (Abrogated.)

§ 20 Local Jurisdictions

Claims based on this Act fall also within the jurisdiction of the court of the district in which the event occurred which caused the damage.

Reform proposal of 19 February 2001 concerning some of the above provisions

§ 7 (1) sentence 2

If the motor vehicle was connected to a trailer at the time of the accident, the keeper of the trailer as well as the keeper of the motor vehicle is obliged to provide compensation to the person suffering harm.

§ 7 (2)

The duty to compensate is excluded if the accident is caused by force majeure.

§ 7 (3) sentence 3

Sentences 1 and 2 are to be applied accordingly to the use of a trailer.

§ 8

The provisions of § 7 do not apply,

1. if the accident was caused by a motor vehicle which cannot travel on level ground at a higher speed than twenty kilometers per hour, or by a trailer connected to such a vehicle at the time of the accident,

2. if the injured person was operating the motor vehicle, or

3. if an object has been damaged which was being transported by the motor vehicle or by a trailer connected to it at the time of the accident, unless a person who is being transported is carrying the thing on him or takes it with him.

§ 8a

In the case of commercial transport of persons for remuneration, the duty of the keeper to compensate in accordance with § 7 because of the death or injury of persons transported cannot be either excluded or limited. The commercial character of a transport of persons is not excluded by the fact that the transport is performed by a body or institution governed by public law.

§ 11 sentence 2

In this case, fair compensation in money can also be demanded for harm which is not economic in accordance with § 253 para 2 of the BGB.

§ 12 (1)

The person who is bound to pay compensation is liable to pay

1. where one person was killed or injured, a lump sum of up to 600,000 euros or periodic payments of up to 36,000 euros per annum;

2. where several persons were killed or injured in the same event, notwithstanding the limits laid down in 1, a total lump sum of up to 3,000,000 euros or periodical payments of up to 180,000 euros per annum; this restriction does not however apply to a keeper of a motor vehicle who is under a duty to compensate in the case of commercial transport of persons for remuneration;

3. where an object was damaged, a sum of up to 300,000 euros, even if several objects are damaged in the same event.

§ 12a

(1) If dangerous goods are transported, the person bound to pay compensation is liable to pay

1. where several persons were killed or injured in the same event, notwithstanding the limits laid down in § 12 para 1 no 1, a total capital sum of up to 6,000,000 euros or periodic payments of up to 360,000 euros per annum,

2. where immovable objects are damaged, even if several objects are damaged in the same event, a sum of up to 6,000,000 euros, in so far as the damage is caused by the characteristics which make the transported goods dangerous. In other respects § 12 para 1 remains unaffected.

(2) Dangerous goods in the sense of this Act are substances and objects whose transport on the road is forbidden, or allowed only under certain conditions, in accordance with Appendices A and B to the European Convention of the 30th September 1957 on the International Carriage of Dangerous Goods by Road (ADR) (reference omitted) in the version applying at that time.

(3) Paragraph 1 is not to be applied in the case of exempted transports of dangerous goods or transports in limited quantities within in the limits laid down in marginal number 10 011 of Annex B to the Convention mentioned in paragraph 2.

(4) Paragraph 1 is not to be applied when the damage on transport has arisen within a business in which dangerous goods are produced, treated, processed, stored, used or destroyed, in so far as the transport takes place on a self-contained site.

(5) § 12 para 2 applies accordingly.

§ 12b

§§ 12 and 12a are not to be applied when damage is caused by the operation of an armoured caterpillar vehicle.

§ 17 (2)

The provisions of paragraph 1 are to be applied accordingly when the damage is caused by a motor vehicle and a trailer connected to it at the time of the accident, by a motor vehicle and an animal, or by a motor vehicle and a railway.

§ 18 (3)

If in the cases in § 17 the driver of a motor vehicle is also obliged to pay compensation for the damage, the provisions of § 17 are to be applied accordingly to this duty in his relationship with the keepers and drivers of the other motor vehicles involved, with the keeper of the trailer connected to another motor vehicle involved at the time of the accident, with the keeper of the animal or with the railway undertaking.

This page last updated Thursday, 01-Dec-2005 11:04:43 CST. Copyright 2007. All rights reserved.