What had happened?
In order to watch surfers on the river, the supervising mother (the second defendant) stopped with her four-and-a-half-year-old child (the first defendant), his older brother and his cousin on a little-traveled bridge without a sidewalk. The child is generally calm and obedient, in particular, up to the time of the accident, there had been no situation in which he suddenly ran away in traffic. Since one of the surfers fell and floated under the bridge, the child ran to the other side of the bridge, whereupon there was a collision with an approaching cyclist (the plaintiff). The latter was aware of the persons on the bridge, but did not reduce his speed. As a result of the fall, the plaintiff suffered injuries. Had the second defendant held her son’s hand or taken other measures, the accident would have been prevented. Also, the plaintiff could have reduced his speed when approaching the bridge due to the awareness of the children and thus could have avoided the accident.
The trial court ultimately divided fault between the plaintiff and the second defendant in a ratio of 1:2. The court dismissed the claim for damages against the first defendant. This decision was not appealed and has therefore been final. The decision regarding the plaintiff and the second defendant was appealed by both sides. However, the Court of Appeals upheld the first-instance decision.
Both the plaintiff and the second defendant appealed this decision to the Supreme Court.
What did the Supreme COurt decide?
In its legal assessment, the Supreme Court stated that road users cannot rely on small children, even if they are already of school age, to behave in a manner appropriate for traffic. Rather, the speed must be reduced to approximately walking speed and one must drive in constant readiness to brake. If a driver notices a child off to the side, the speed must be reduced so that an accident can be prevented if the child enters the roadway. Especially in the case of children of preschool age who are in the roadway, behavior contrary to traffic regulations must always be expected. The presence of adults does not change this. With regard to the conduct of the mother (i.e. the second defendant), the Supreme Court stated that, although even four-year-old children cannot be required to be under constant observation, strict requirements are to be placed on the fulfillment of the parental duty of supervision and mere prohibitions are not sufficient, but a child must be adequately and reasonably supervised. The second defendant did not comply with this requirement, since she neither held her child nor stood in such a way that she could prevent her child from running away, and also only noticed the cyclist when her son had already started to run, i.e. she did not pay attention to the cyclist either.
The Supreme Court dismissed the appeals as inadmissible. The division of fault between the plaintiff and the second defendant therefore remained at 1:2.
(Decision OGH 2 Ob 180/21s of 14.12.2021)
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