Is a drunk injured person guilty of contributory negligence?
A man was a guest in a pub and obviously drank one or the other alcoholic beverage. On leaving the pub, he fell while descending a flight of stairs. The stairs were visibly blocked off at the top with a gate and were not safe to use for several reasons. The plaintiff thought he could leave the pub via these stairs, but this was not the case, so he had to turn around. In doing so, he fell. In the course of the proceedings, it was determined that the plaintiff was intoxicated with a BAC of at least 1.2 ‰ (per mille) at the time of the incident.
What did the courts decide?
The case went through the instances and finally ended up before the Supreme Court (Oberster Gerichtshof, OGH). In the second instance, the Court of Appeal was of the opinion that the plaintiff had "negligently exposed himself to the foreseeable danger of a fall on the stairs due to his alcohol level," which is why he was contributorily negligent. The Supreme Court did not object to this legal opinion. According to the Supreme Court, alcoholization is a recognizable element of danger. Thus, even stepping on a staircase can constitute avoidable carelessness. Whether the plaintiff could recognize (or could not recognize due to the alcohol) that the stairs he used did not lead to the exit of the pub at all is irrelevant, according to the Supreme Court, which relied on the provision of § 1307 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB).
Section 1307 of the Austrian Civil Cde states that if someone puts himself in the state of "sensory confusion" (e.g. by alcoholization) through his own fault, the damage caused in this state is to be attributed to him as fault. This must also be attributed to the injured party himself, who in this state contributed to the damage caused to him, according to the Supreme Court.
In an older decision on this subject, the Supreme Court stated, for example: "Even the injured party who got senselessly drunk before starting the journey and was therefore unable to check whether he could trust the driver of a motor vehicle bears contributory negligence for the accident that happened to him and was caused by the driver’s drunkenness. This contributory negligence would not have to be attributed to the injured party only if he was not at fault in causing the drunkenness, which would be the case, for example, if he had not known about the intoxicating effect of the drink or had taken it on a doctor’s prescription or if the alcohol had been supplied to him by others." (RS0026843)
Back to the initial decision. The Supreme Court did not object to the division of fault of 2:1 made by the lower courts at the expense of the defendant. As a result, the plaintiff was contributorily negligent by one third and therefore received damages reduced by this ratio.
(Decision OGH 8 Ob 22/21z, 30.04.2021)
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