Liability of a supermarket in the event of a breach of its legal duty to maintain the safety of its premises

What had happened?

During maintenance work on the cooling shelves in a supermarket branch of the defendant, the mechanic commissioned to carry out the work left a piece of sheet metal that was about one meter long lying on the tiled floor in front of the shelf. The plaintiff, who entered the store as a customer, stepped on this piece of sheet metal, slipped, and sustained minor injuries. If she had looked not only at the shelf but also at the floor before entering the scene of the accident, the plaintiff could have noticed the piece of sheet metal, which stood out clearly from the tiled floor due to its color. However, warning signs indicating the repair work or other safety measures were not posted by the supermarket.

The plaintiff then demanded compensation for damages, claiming that the defendant had breached its duty to maintain the safety of its premises by creating an easily avoidable source of danger and that it was also liable for its vicarious agents pursuant to Section 1313a of the Austrian Civil Code (ABGB). The defendant objected that the plaintiff was solely responsible for the accident, as she had overlooked the easily recognizable obstacle out of carelessness.

The court of first instance dismissed the claim in its entirety on the grounds that the plaintiff could have recognized with sufficient attention that repair work was being carried out in the store and should have reacted accordingly. The defendant could not be required to eliminate all possible sources of danger. The court of first instance therefore denied that a violation of the defendant’s legal duty to maintain the safety of its premises had occurred.

The Court of Appeal modified this decision to the effect that the action was two-thirds justified. The supermarket operator was liable to customers for the workmen working in his store, who had acted in a conspicuously careless manner by leaving the piece of sheet metal unsecured on the aisle floor. Because of her carelessness, however, the plaintiff must accept a contributory negligence of one third.

The defendant (and the construction company that carried out the repair work, which joined the court proceedings as an intervening party) appealed against this decision to the Supreme Court (Oberster Gerichtshof, OGH) with the aim of restoring the first-instance decision.

What did the Supreme Court decide?

In its decision, the Supreme Court stated that, according to settled case law, the content of a duty to maintain the safety of one’s premises always depends on the circumstances of the individual case – in this context, it depends on whether a danger was recognizable to a careful person and what measures are possible and reasonable to avoid this danger. In the specific case, the Supreme Court did not oppose the opinion of the Court of Appeal that a significant source of danger was created by leaving a piece of sheet metal lying around.. On the contrary, experience shows that it is to be expected that customers will direct their attention to the shelves (rather than the floor of the supermarket). Nor was the finding of contributory negligence on the part of the plaintiff unreasonable in the view of the Supreme Court.

The appeals were therefore dismissed as inadmissible.

(Decision OGH 8 Ob 78/22m of 29.06.2022)

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