BGH NJW 1980, 2194
Bundesgerichtshof judgment of 10th July 1980, III ZR 58/79 (Braunschweig).
This case is first published in the German Law Archive courtesy of:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by Mr Raymond Youngs, Southampton Institute
Facts: The plaintiff demands compensation from the defendant city because of violation of the duty of protective care in relation to highways. On the 3rd June 1975 at about 9.45 in the evening the plaintiff’s wife, who was driving the plaintiff’s car, turned left at a dual carriageway (the A Ring). There was a hedge (which has been since removed) approximately 1.2 m in height on the central reservation. The plaintiff’s wife crossed the lane which led to her right, drove through a gap in the central reservation, tried to turn into the lane leading left and collided with a car approaching from the left. The plaintiff claimed that his wife edged carefully into the lane and could not see the other vehicle in time because the hedge was too high.
Grounds: I. The appeal court found no violation of the defendant’s duty of protective care and in this connection stated that the central reservation did not form part of the highway. It was true that a duty to warn about limitations on visibility which were not obvious (or to remove them) could also exist for areas outside the street. But here the restriction on visibility caused by the hedge was obvious anyway. The danger was in the end due to the conduct of the plaintiff’s wife, who turned to the left without taking sufficient precautions. A reasonably experienced driver would have been able to cope with the situation in question. Besides this, a claim under § 839 (1) sentence 2 of the BGB would not arise as the plaintiff has another option for compensation by claiming against his wife.
There are fundamental legal objections to this judgment.
II. 1. The appeal court’s starting point, that a violation of the duty of protective care in relation to highways by the officers of the defendant is to be assessed in accordance with the provisions about official liability (§ 839 of the BGB, Art 34 of the GG), is certainly correct. According to § 10 para 1 of the Highways Act of Lower Saxony of the 14th December 1962 [reference omitted] the building and maintenance of public highways (inclusive of the federal trunk roads) and surveillance of their safety for traffic falls on the organs and public employees of the body dealing with them, as an official duty in exercise of state activity. This formulation contained in the public law statutes of the state (Land) of the duties of the office holder of a municipality (Gemeinde) in ensuring traffic safety on public highways is – as the Senate has explained in the judgments [references omitted] – permissible in the context of the division of legislative competence between the Federation and the states. Nor are there any other constitutional law objections to it derived from the Basic Law.
2. The Senate’s judgment [reference omitted] explains in detail that a body liable for breach of official duty cannot rely on the provisions of § 839 (1) sentence 2 of the BGB as they contradict the basic principle of the equal treatment of highway users in liability law. These principles also apply, as the Senate has explained in more detail in the judgment [reference omitted] (issued after the publication of the judgment in the appeal) for cases like this one involving surveillance of traffic safety on a public highway, if this duty falls on the office holder as a state responsibility. The official duty to ensure safety of road traffic is closely related to the duties owed by an official as a public highway user. Accordingly the defendant city cannot exonerate itself by reference to the possibility that the plaintiff’s wife is liable for the accident.
3. The appeal court’s finding that there was no violation of the duty of protective care in relation to highways cannot be endorsed either.
a) The official duty formulated in public law to ensure the safety of road traffic corresponds in its content to the general duty of protective care [references omitted]. Its scope is determined by the type and frequency of use of the highway and its importance. It includes the necessary measures for the creation and maintenance of road conditions which are sufficiently safe for road users. It is true that a road user must in principle adjust to the given road conditions and accept the highway in the form in which it appears to him. A party under a duty of protective care must in an appropriate and objectively reasonable manner remove (and if necessary warn about) all those dangers (but no others) which are not visible or not visible in time for a highway user who is exercising the necessary care and to which he cannot adjust or cannot adjust in time.
b) In applying these principles to the present case, an official duty by the public employees of the defendant must be accepted to keep the hedge at a height which prevents serious obstruction of visibility for road users on turning into the highway from an access. The appeal court interprets the concept of the highway too narrowly when it includes in it, apart from the carriageway, only those surfaces which “also serve traffic in some way or other eg for escape in case of emergency…” According to both § 2 II no 1 Lower Saxony Highways Act and §1 IV no 1 Federal Highways Act in the 1st October 1974 version [reference omitted] separation strips, verges, and marginal and safety strips are also included in public highways [references omitted]. As federal and state law agree here, it has no significance for the outcome of the case whether the A Ring was a federal, state or municipality highway. According to these statutory rules, the duty of protective care extends to the central reservation as a part of the highway. It is therefore not necessary to fall back on the case law cited by the appeal court according to which the duty of protective care extends to things not forming part of the highway insofar as they represent a danger for the use of the highway, as for instance trees and shrubs in front gardens [references omitted]. Nor is it necessary to refer to the duties which fall on the owner of the hedge as such.
c) A high hedge created special dangers in a place where there was a gap the central reservation to enable highway users to turn in and out of it. Drivers turning in could only be sure of seeing the traffic on the other side of the hedge if the hedge was at least for an appropriate distance from the entrance kept low enough for it not significantly to conceal moving vehicles behind it. Contrary to the view of the appeal court, this danger did not cease in whole or in part to arise just because the hedge could be seen, and because this was so even in darkness, with the help of street lighting and car headlights. The danger was not the hedge itself, but the hindrance to visibility which it caused, and this hindrance did not cease to exist just because the hedge was visible.
d) The defendant city claimed in their submissions that they complied with these principles. According to these submissions, hedges are cut once yearly, and twice yearly at traffic focal points, and kept in “shape”. The end sections of a hedge before and after accesses are cut back further than the middle parts of the hedge. Actually, however, the defendant has not kept to these principles in the area of the site of the accident, according to the findings of the appeal court. The shrubs situated on the central reservation had reached a height of about 1.2 m on the day of the accident. The appeal court has described the hindrance to visibility consequently occurring as “obvious” and in another place spoken of a hedge height “undoubtedly hindering visibility”. But it regarded this as insignificant for the outcome of the case, because every driver could escape the threat of danger which this caused, either by increased attention on turning in or out or by the choice of another driving route. This view is, it should be acknowledged in support of the appeal in law, affected by legal error.
aa) A driver must certainly in principle accept the highway as it presents itself to him, and therefore make his own investigations as to whether he has sufficient visibility. The hedge height of about 1.2 m could however seriously hinder the necessary visibility even for an attentive driver, and the appeal court has not paid sufficient attention to this. According to the findings of the Landgericht, the height of vision of the plaintiff’s wife in his car used in the accident…was 1.1 m, and that of an assessor of the Landgericht 1.2 m. Cars of the usual construction, as is revealed by type surveys in the press, are without exception between 1.3 and 1.5 m high. Cars of this type protruded at the most only marginally above the hedge. The extent to which they were visible depended to a large degree on their type of construction. The defendant city could in any case not act on the basis that drivers would on turning at the site of the accident see cars approaching behind the hedge in time in every case. This possible danger, which, as the appeal court has pertinently explained, could not be removed by a warning sign, resulted in the hindrance to visibility caused by the 1.2 m high hedge at the site of the accident being dangerous even for an attentive driver. A careful tentative entry – which the appeal court did not even consider to be necessary – into the lane situated on the other side of the hedge could not remove these dangers. This is because a sufficient view could not be obtained of this lane before turning into it. That follows from the finding of the appeal court about the effect which the hedge had in restricting visibility.
bb) The duty of ensuring traffic safety did not cease to apply, as the appeal court thought it did, just because no driver had to turn in at the place in question. It cannot in principle be held against highway users by a party under a duty of protective care that they should have avoided dangerous places. This would enable the party to shift its responsibility to the driver in an impermissible manner. It is the task of the party under the duty of protective care either to remove or at least to defuse danger spots which it can recognise as such so far as is reasonable and as soon as possible.
cc) The party under the duty of protective care must further protect traffic from the mistakes which according to experience are exactly what has to be reckoned with in heavy traffic in large cities: here, underestimating of the dangers caused by restriction of visibility and possible violations of the right of way. The principle of trust, which applies to the mutual relationship of highway users has no application in the relationship between the party under a duty of protective care and highway users. On the contrary the duty of protective care can include in individual cases those measures which have the purpose of protecting the traffic from the consequences of inappropriate conduct of individual highway users [reference omitted].
These prerequisites are present here. In the heavy traffic in inner cities, violations of rules of priority are not rare. If visibility of the road having priority is substantially impaired, and a particularly careful driving style indicated (taking up more time than usual), one must reckon with more frequent violations of these duties. The defendant city could also have recognised this. Regular cutting of the hedge down to 70 to 80 centimetres in height was therefore obviously required. This relatively simple and cheap measure was to be expected of the defendant – and pertinently the appeal court accepted this.
4. The disputed judgment also cannot be based on different reasoning. It is not possible to proceed on the basis that the violation by the defendant city of the duty of protective care is completely superseded by the contribution of the plaintiff’s wife to the accident. According to her statement as witness, the plaintiff’s wife – in contrast to the case decided by the Kammergericht which was otherwise similar [reference omitted] – did not turn into the space behind the hedge without any regard to the restriction on visibility. Instead, she claims at first to have stopped briefly and only after starting off again to have collided with the other car which had approached in the meantime. It may be that as a result of carelessness she did not pay attention or sufficient attention to the distance and speed of this vehicle, because it approached on the left lane of the carriageway (its driver wanting to turn to the left further on). Nevertheless it cannot be assumed that there would have been a collision even without the restriction of visibility by the hedge, especially as it has to be borne in mind that the driver of the other car also was also unable to see in sufficient time the car driven by the plaintiff’s wife turning in because of the hedge.
5. The matter must be referred back to the appeal court, because the weighing up in accordance with § 254 of the BGB of the extent of the contributions to the accident from both sides is not possible according to the findings which have been made, and must remain an issue for the judge of fact.