Duty to ensure public safety (“Verkehrssicherungspflichten”) when providing an event space?
What had happened?
The commander of the volunteer fire department agreed with the defendant municipality that the fire department may hold a ball in an event center of the defendant. According to the defendant’s house rules, which were part of the agreement, the fire department, as the organizer, was supposed to be responsible for the organization and proper conduct of the event.
During the course of the ball, the plaintiff, a ball attendee who had also consumed alcoholic beverages, fell down a flight of stairs and sustained serious injuries.
The course of the proceedings
The plaintiff then demanded damages of almost EUR 60,000.00 and a declaration of liability for all future damages, claiming that the defective condition of the stairs had already been known and that he had fallen solely because of the defective step – but not because of his alcohol consumption. The defendant objected that it lacked standing to be sued because it had not had a contractual relationship with the plaintiff. Rather, the volunteer fire department would have had to perform the safety duties.
The Court of First Instance dismissed the action on the grounds that there was no contractual relationship between the parties to the dispute and that the municipality therefore had no duty to ensure public safety. At the time of the accident, the owner of the rooms and the staircase was the volunteer fire department.
However, the Court of Appeals reversed the decision of the trial court on the grounds that the municipality had created the limited risk by making the building available for the event. It also ruled that an appeal to the Supreme Court (Oberster Gerichtshof, OGH) was admissible on the question of whether the obligation to ensure public safety continued despite the building being made available to a third party.
The defendant appealed against this decision to the Supreme Court and requested that the first-instance judgment be restored.
How did the Supreme Court decide?
The Supreme Court dismissed the appeal for lack of a substantial legal question, referring to the extensive case law on the existence of public safety duties.
In this regard, the Supreme Court stated that, according to the prevailing opinion, public safety duties do not only exist in the case of a deliberate opening of danger, but already in the case of a mere toleration of danger. The person who opens a facility under his or her control to a group of people must maintain the facility in a safe condition and protect it from recognizable dangers. The duty to ensure public safety is incumbent on the person who can take the appropriate precautions – in other words, it is a matter of controlling the danger. In the specific case, the responsibility for the defective staircase and thus for a construction defect lay with the municipality.
The Supreme Court also did not consider the interpretation of the Court of Appeal, according to which the provisions of the house rules did not lead to a contractual transfer of all public safety duties, to be in need of correction. A transfer of liability for any damage to the building by the house rules was not in accordance with the principles of contractual interpretation.
(Decision 3 Ob 218/22p of 15.03.2023)
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