Judgment on the claim for damages (illegal turning maneuver):
In a decision dated October 7, 2020 – case no. 7 O 177/17 – the Regional Court of Cologne partially upheld a claim for damages resulting from a traffic accident. The judgment shows that the injured party’s improper conduct in the context of a traffic accident does not constitute an obstacle to the claim for damages against the tortfeasor.
The plaintiff and the defendants shall each bear 50% of the costs of the proceedings.
The judgment is provisionally enforceable.
Facts:
The parties are in dispute over claims for damages for damage to a vehicle in the amount of EUR 7060.84 plus interest in the amount of 4 percentage points, plus an expert fee in the amount of EUR 774.14 and a lump sum for accident costs in the amount of EUR 25.56. In addition, the payment of extrajudicial legal fees in the amount of EUR 612.80.
The plaintiff (K) is the owner of a vehicle of the make B. At the time of the offence, the witness (Z) was driving K’s vehicle in the left-hand lane of the two lanes of R-Straße in the town of K. Z intended to turn left into M-Straße. He set the left blinker and stopped at the junction with M-Straße. When the oncoming lane became clear, Z drove off. Turning left into M-Straße by crossing the oncoming lane is not permitted on R-Straße at this point. At the same time, the defendant (B) was in oncoming traffic on R-Straße with the defendant’s vehicle.
The C claims that the B reversed at a high speed and was not visible to the C. In doing so, the B allegedly rammed the K’s vehicle with her vehicle.
The B claims that she stopped with her car at the traffic lights and that the C attempted a turning maneuver.
The court took evidence by questioning Z, another witness (Z2) and obtaining a supplementary expert opinion from the expert (S).
Reasons for the decision:
The admissible action is well-founded to the tenor of the claim. It is otherwise unfounded.
The plaintiff has a claim against the defendants for payment of the requested damages in the amount of EUR 3785.26 plus 4 percentage points pursuant to § 18 StVG; § 115 VVG.
The collision and the damage occurred during the operation of both the plaintiff’s and the defendant’s vehicle, so that the parties are in principle liable under § Section 7 (1) StVG both are liable. Neither the plaintiff nor the defendants have proven that the accident was an unavoidable event for them within the meaning of the § Section 17 (3) StVG has acted in accordance with § Section 17 (1) and (2) StVG a liability assessment had to be carried out. This means that the obligation to pay compensation and its amount depended on the extent to which the accident was primarily caused by one or the other party. The circumstances relevant to the assessment must be established, i.e. undisputed, admitted or proven, whereby circumstances proven by prima facie evidence can also be taken into account.
The following spoke against the defendants § Section 9 (5) StVO prima facie evidence, as the accident occurred when B was reversing. In the case of certain, particularly dangerous and accident-prone traffic incidents, there is such a high probability of misconduct on the part of the driver who adopts this driving style that, even in the given case, this driver would be liable under the
life experience is the guilty party. In such cases, it is justified to make a presumption of evidence (prima facie evidence) against him, which he must rebut. One such dangerous offense is, in particular, reversing ( § Section 9 (5) StVO ). The court is convinced that B was reversing at the time of the collision and had reversed his vehicle from a crosswalk a few meters back in the lane after questioning Z and after obtaining an expert opinion from S. Z was able to describe in detail how he was in the lane behind the defendant’s vehicle while attempting to turn on the road when it suddenly reversed a few meters without paying attention to the plaintiff’s vehicle, resulting in the collision. The Z openly admitted that he should not have made a U-turn at this point. The witness was able to recall details such as the two occupants of the plaintiff’s vehicle talking and laughing with each other and was able to conclusively justify the other party’s driving maneuver by stating that the vehicle initially protruded into the crosswalk and should not block the section of road any further by reversing due to the pedestrians then crossing the road. This description is consistent with the findings of the appointed expert, who came to the conclusion that the defendant’s vehicle was reversing at the time of the collision. This is evident both from the point of collision during the turning maneuver and from the damage to the two vehicles. The expert’s statements are technically comprehensible, coherent and are supported by the explanations given during the oral expert hearing. The court’s conviction is not shaken by the testimony of witness Z2, who was heard in rebuttal. He did state that the defendant’s vehicle had not moved immediately before the collision. However, the statement is not credible. The witness repeatedly refers to generalizations (“We were standing in front of the stop line, we always do that” and “We were just standing at the traffic lights, like you do at traffic lights”) without being able to describe a situation-specific memory. In addition, the witness “jumps” several times in his account to the desired result that the defendant’s vehicle did not move. In contrast, the witness can describe another event in much more detail, namely how he and his boss, the defendant, explored the position of a witness with regard to the view of the accident on the opposite side of the road in a bakery following the police accident investigation. It can be assumed that the witness actually experienced these events and remembers them visually, as he can vividly reproduce the situation in many details. It can be assumed that the witness would have been able to give more details of his perception and a more emotional experience of the situation if he had given a truthful account of the core accident. The witness is also obviously aware of the accusation of reversing as a result of the conversation with the police officers and is actively trying to refute this. The account shows a high degree of agreement with the defendant’s description during his personal hearing and focuses predominantly on refuting the accusation of reversing, rather than on an individual experience of the situation. It can therefore not be ruled out that Z2 tried to exonerate his boss, the defendant, in a result-oriented manner. The defendant should have behaved in such a way when reversing that any danger to other road users would have been excluded. Since in the present case there was not only a hazard, but even a collision between the rear of the defendant’s vehicle and the side of the plaintiff’s vehicle, the defendant obviously did not meet these high requirements. For if he had constantly ensured that the traffic space behind him and to the sides remained clear when reversing, a collision would have been avoided. The presumption of fault against the defendants could not be rebutted. The defendants did not even argue that the first defendant had comprehensively ensured that the traffic behind him was not endangered. However, there was also prima facie evidence against the plaintiff that she was at fault. On the one hand, she must accept the accusation that Z carried out a turning maneuver at a point on the road where a solid lane boundary separates the lanes in one direction from the other.
separated from those in the other direction. The driver of the plaintiff’s vehicle therefore violated § 41 StVO in conjunction with regulation sign no. 295, Annex 2 to the StVO. Contrary to the plaintiff’s account, Z did not want to turn left into M-Straße – which would also not have been permitted at this point – but wanted to carry out a turning maneuver. The Z named by the plaintiff stated this in his interrogation, which in turn was not subsequently disputed by the plaintiff. Furthermore, the prima facie evidence of the § Section 9 (5) StVO . Z had already started his turning maneuver and had not yet completed it. The court is convinced of this after obtaining an expert opinion. The expert can only plausibly describe and explain the damage and the location of the collision technically if both vehicles were in motion at the time of the collision. At the time of the collision, Z in the plaintiff’s vehicle was at right angles to the road, with the rear wheels on the lane on which the defendant’s vehicle was also located and with the front wheels in the right-hand lane. Contrary to the plaintiff’s view, there can be no doubt that the plaintiff’s vehicle was in the process of turning, which had not yet been completed. In particular, the plaintiff’s vehicle was not initially in the lane behind the defendant’s vehicle and then swerved to the right in view of the defendant’s vehicle reversing towards the plaintiff’s vehicle. The expert can rule out such an accident. Rather, as the expert explained in detail in the oral hearing with reference to Figure 25 of the written expert opinion, the inclined position of the plaintiff’s vehicle can only be explained by a continuation of the turning maneuver at the time of the collision on the turning circle due to the turning angle of the front wheels to the left of the plaintiff’s vehicle.
There can also be no doubt that her behavior was the cause of the accident. The provision of § 41 StVO i.V.m. traffic sign no. 295 and § 9 Para. 5 StVO, which applies to the reversing driver, also serves to protect those road users who are reversing in their lane. This is because there is a not remote risk that the reversing driver will only observe the lane in which he wishes to reverse, but does not expect vehicles from the opposite lane to drive into the lane. The plaintiff has not been able to refute the prima facie evidence against her. Contrary to the plaintiff’s view, the proven fact that the defendant was reversing also leads to the prima facie evidence being refuted. This does not constitute a presentation of atypical facts. The duty of care that applies to the person turning also protects the user of the oncoming lane who is reversing there.
The consideration of the fact that the defendant was reversing and
of the turning process by Z as well as the operational risks against each other leads to a half liability of both parties in the present case.
It should be borne in mind that both parties were subject to increased due diligence requirements and that there is prima facie evidence of fault on both sides. On the one hand, the Z violated two provisions of the StVO, one of which was classified by the legislator as so serious that prima facie evidence was linked to its violation (Section 9 (5) StVO). For a turning maneuver at precisely this point, there was, according to the undisputed
This is also not a compelling reason. On the contrary: the fact that this position even
was extremely unfavorable and dangerous for turning, should have been clear to the Z, otherwise there would not have been a continuous lane boundary.
In addition, R-Straße in K, as a section of a main road, is a heavily frequented road. However, the fault of the defendant is equally serious. It is true that the plaintiff’s vehicle may only have been visible to the defendant relatively shortly before the collision due to the turning maneuver – if he had checked in the mirror or by looking back to see a clear lane to the rear, which is not even claimed. On the other hand, when reversing on a busy road in the inner city area of the town of K, which is also a main road, the surroundings to the rear and to the sides must be constantly checked and reversing must only be carried out at a speed appropriate to the situation, i.e. as a rule at very slow speed with extreme caution.
In view of the above, the court also assessed the defendant’s share of fault at 50% (see LG Hamburg, judgment of April 11, 2008, 306 O 387/07).
The plaintiff can claim 50% of her property damage from the defendants.
The amount of the claim:
Damages:
The amount of the claim is EUR 7570.51 (EUR 7807.43 – EUR 236.92).
In view of the partial withdrawal of EUR 0.03 and EUR 52.55
EUR and undisputed with the exception of the UPE surcharges.
In the present case, the plaintiff cannot demand the UPE surcharges in the amount of EUR 236.92 as part of the fictitious settlement of damages on the basis of an expert opinion. The defendant has claimed that it has not been established whether any UPE surcharges would actually be incurred in the event of a repair. The plaintiff has not countered this. Spare parts price surcharges are not to be reimbursed in the case of a fictitious settlement if they would not have been incurred in the case of a repair in the local specialist workshop (see OLG Düsseldorf NZV 2002, 87, 89; KG KGR 2008, 610, 611; KG Urt. v. 11.10.2010 – 12 U 148/09 -). The BGH has ruled to the effect that the injured party must be referred to a cheaper repair option that is easily and readily accessible and of equal value to the brand-name specialist garage in the fictitious settlement of damages if the referral is reasonable for him. Unreasonableness may result from the fact that the vehicle involved in the accident is less than three years old or has been continuously serviced, maintained and repaired in the brand-name specialist garage. If a referral to a cheaper workshop is possible, whose repairs are equivalent to the repairs in the brand-name specialist workshop, the injured party must allow the cheaper replacement part costs to be offset due to the duty to minimize damages, as the replacement part costs are part of the repair costs. If no UPE surcharges are charged in the cheaper and equivalent reference workshop, the injured party has no claim for compensation with regard to the spare parts surcharges in the event of a fictitious settlement of damages (BGH – VI. Civil Senate – judgment of 25.9.2018 – VI ZR 65/18 -). This case law must apply all the more if the injured party does not counter the claim of the damaging party that no UPE surcharges would be incurred at all in the event of an actual repair.
With a 50% liability ratio, the plaintiff can demand compensation in the amount of EUR 3785.26. The interest claim was only to be awarded from the lis pendens. The commencement of default on day X was not conclusively demonstrated. The defendant had pointed this out in the statement of defense of day X on p.8. Only 4% interest was requested.
Motion to 2)
Following an admissible amendment to the action, the application under 2) is justified on the basis of an object value of EUR 3785.26 in the amount of EUR 327.60 plus EUR 20.00 lump sum for expenses, i.e. in the total amount of EUR 347.60; otherwise it is unfounded. The claim for interest from lis pendens follows from §§ 291, 288 BGB. The procedural ancillary rulings follow from §§ 92, 709 sentence 1 and sentence 2 ZPO. The amount in dispute is set at up to EUR 9000.
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