Hamm Higher Regional Court, 21.12.2012, Ref.: 9 U 38/12
The duty to clear and grit generally applies to the owners of neighbouring properties. This is always the case if the municipality has transferred the obligation to clear and grit to the neighbouring residents in the municipal bylaws.
If the neighbour is a landlord, the landlord can in turn transfer the obligation to grit and clear to the tenants.
This transfer should always be stipulated in the contract and it should be specifically stated when and how the individual tenant must clear and/or grit. Furthermore, the tenant should be made aware of the possible consequences of breaching their obligation. It is not sufficient to post a notice in the rental property about the obligation to grit and clear or to distribute an information or reminder notice in the tenants' letterboxes.
However, even if the landlord has transferred the obligation to clear and grit to the tenant, he is not completely "out" of the responsibility, as he at least remains obliged to monitor. This means that the landlord must regularly check that the gritting and clearing obligations are being carried out properly.
In order to be able to properly fulfil the burden of proof in a legal dispute, a log should be kept in which the date, time and scope of the inspection are entered.
If the landlord commissions a property management company to carry out the winter service, this company must be carefully selected, thoroughly instructed with regard to the winter service and also monitored.
In the above-mentioned case before the Higher Regional Court of Hamm, the court had to decide whether two homeowners had to pay damages and compensation to a lady because she had suffered a fractured neck of femur when she fell on the pavement of her house.
Facts of the Case::
Plaintiff had fallen and had to spend Christmas in hospital
The plaintiff had stepped outside the front door at 9.40 a.m. on a winter's day. At the transition from the house path to the pavement, she wanted to turn back to wave to her husband and then fell. As a result of the fall, the defendant suffered a fractured neck of femur and had to be hospitalised over the Christmas period and into the new year.
She then had to undergo a lengthy rehabilitation programme and receive outpatient treatment several more times.
In the first instance, the defendant was ordered to pay EUR 10,000 in damages for pain and suffering
At first instance, the defendant homeowners were sentenced as joint and several debtors to pay compensation for pain and suffering in the amount of € 10,000.00 and material damages in the amount of € 3,588.10 plus interest.
The homeowners appealed against this judgement to the Hamm Higher Regional Court.
Decision of the Hamm Higher Regional Court
In the appeal proceedings, the court reduced the compensation for pain and suffering to EUR 7,000
The Higher Regional Court of Hamm only partially upheld this appeal and ordered the defendants to pay damages for pain and suffering in the amount of EUR 7,000 for breach of their duty to ensure road safety:
The taking of evidence revealed that on the day of the accident there were not just isolated patches of slippery road surface, but that it was very slippery overall.
The defendant had failed to fulfil his duty to clear and grit the roads
The area of the fall was also spatially covered by the duty to clear and grit. This is always the case with walking surfaces if there is significant traffic on them or if they are important for traffic (Palandt/Sprau, 71st edition, § 823 BGB para. 226).
There was also a duty to clear and grit in terms of time. The beginning and end of the duty to clear and grit was generally determined by the onset or end of the risk of general slipperiness.
Duty to clear and grit begins with the start of traffic (7:00 a.m. every day and 9:00 a.m. at weekends)
Furthermore, it depends on the usual time of traffic. The obligation to clear and grit therefore begins with the onset of traffic, usually 7:00 a.m. is sufficient, on Sundays and public holidays 9:00 a.m. and at around 8:00 p.m. (Palandt/Sprau, 71st edition, § 823 BGB para. 227) this ends again.
In terms of size, the paths should be gritted in such a way that they can be used by road users without danger if they also take the necessary care.
According to the results of the hearing of evidence at first instance, it was clear that either too little gritting material had been used or that the area of the fall had not been gritted at all.
The homeowner had also not effectively transferred the duty to clear and grit
The defendant homeowners had also not effectively transferred their duty to clear and grit.
According to the case law of the Federal Court of Justice (BGH), it is true that safety obligations can be delegated with the result that the responsible parties would only have control and monitoring obligations.
In this case, however, there is no such clear agreement that would reliably ensure the elimination of risks.
There were no indications that the duty to clear and grit was transferred to the property management company. There is also no apparent provision in the tenancy agreement to the effect that all tenants of the building are responsible for the fulfilment of the winter service on a rotating basis.
The regulation in the house rules would not be sufficient for the transfer
Although the defendants had submitted house rules according to which (only) the ground floor tenants would have been responsible for carrying out winter maintenance, there were legal objections to such a regulation on the one hand and on the other hand this had not been carried out in the present case.
Rather, the property management had drawn up a so-called "snow plan", which provided for all tenants to participate in the winter maintenance on a daily basis.
This plan was sent to the tenants by posting it in their letterboxes.
In view of the fact that no corresponding agreements had been made with the tenants and that the "snow plan" was not even accompanied by a letter, the duty to grit and clear had not been effectively transferred to the tenants.
Even if the transfer had been effective, the defendant would have breached its duty of supervision
Even if the gritting and clearing obligations had been effectively transferred to the tenants here, the defendants would be liable for breach of their remaining duty of supervision, as it was clear from the witness statements that this had also not been carried out.
Source: Higher Regional Court of Hamm
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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