Reversing into a parking space (contributory negligence)

Reversing into a parking space – standard of care when passing someone reversing into a parking space – contributory negligence 40%

Judgment of the Local Court of Cologne dated 13.06.2013 – Ref. 271 C 51/12

Regional Court of Cologne Ref. 11 S 301/13

At the time of the accident, the witness M. was about to reverse into a parking space. The defendant attempted to drive past the plaintiff’s vehicle on the left when the two vehicles collided.

The local court assumed a liability rate of 75% at the expense of the reversing parker.

In the subsequent appeal proceedings, the Cologne Regional Court reduced the quota to 60%.

§ Section 9 (5) StVO requires the driver to behave in such a way when reversing that other road users are not endangered. The witness M. clearly did not do this, as the collision with the defendant’s vehicle occurred when the witness M. reversed into a parking space. According to case law, in such cases, prima facie evidence is provided that the person reversing was at fault for causing the damage (e.g. KG VM 1988, 32). Due to the particular dangers that reversing entails for other road users, the person reversing must also take particular care when maneuvering into a parking space. In particular, they must ensure that the front of their vehicle swings out to the left. If he does not observe these principles, he may be fully liable in the event of a collision with a vehicle due to the special duty of care arising from § 9 Para. 5 StVO (see KG DAR 1975, 290).

The plaintiff’s argument that the parking process was almost complete at the time of the collision cannot lead to a different assessment. For the prima facie evidence against the reversing driver, it does not matter whether the parking process is almost complete if reversing still poses a danger to other road users. This was the case here. Otherwise, the accident would not have occurred.

Witness M. is also not exonerated by the plaintiff’s assertion that he had looked in the exterior and rear-view mirrors before initiating the reversing maneuver and had not noticed any vehicle from behind. Here too, the collision of the two vehicles clearly speaks against this account. If the witness M. had fulfilled his duty of care when looking behind, he would have had to have noticed the defendant’s vehicle, especially as there was a very close temporal and spatial connection between the passing and the start of the reversing maneuver.

The plaintiff has not rebutted the prima facie evidence against the witness M. In order to rebut prima facie evidence, the serious possibility of a different sequence of events must be proven. In this context, facts that could give rise to the serious possibility of a different sequence of events must not only appear possible, they must also be proven (see BGH VersR 1969, 859). In order to refute the prima facie evidence against the witness Mausbach, the plaintiff merely claimed that the defendant 1) was driving at excessive speed. This assertion was not confirmed in the course of the taking of evidence.

However, unlike the District Court, the Regional Court considered the fact that the defendant drove too close to the plaintiff’s vehicle to be a significant contribution to fault and assessed this contributory negligence at 40% in the context of its weighing up in accordance with Section 17 (1) StVG.

Accident in a temporal spatial context when reversing out of a parking space § 9 para. 5 StVO – prima facie evidence

In a decision dated September 7, 2015 – case reference: 275 C 40/15 – the Cologne District Court had to decide on the question of two parties involved in an accident reversing out of a parking space. It essentially concerned the question of whether a temporal-spatial connection of the parking can still be assumed if one of the two parties involved in the accident has already completed the parking process in the narrower sense, has engaged first gear to leave the parking lot driving forwards and then an accident occurs with the second party involved in the accident parking in reverse.

When weighing up the mutual interests, the court came to the conclusion that a liability ratio of 70:30 in favor of the plaintiff existed because the plaintiff had provided prima facie evidence of an accident while reversing. If a vehicle is stationary for a longer period of time after reversing, the temporal-spatial connection with reversing is no longer given.

The plaintiff was awarded EUR 359.52 in damages and reimbursement of extrajudicial legal costs of EUR 54.15 by the court.

I. Facts:

On 14.11.2014, witness B parked the plaintiff’s vehicle, her car, in the parking lot of a supermarket in K. in a parking bay. The defendant parked her car in approximately the opposite parking bay.

Witness B reversed the plaintiff’s vehicle out of the parking bay. She reversed onto the road between the parking bays. The defendant also reversed out of the parking bay. The vehicles collided with each other on the road between the parking bays in such a way that the plaintiff’s vehicle was hit on the side and the defendant’s vehicle on the rear.

The plaintiff’s vehicle was damaged in the process. The plaintiff obtained an expert opinion, the costs of which amounted to EUR 429.89. The vehicle damage amounted to EUR 1,261.66 net. The plaintiff is claiming these costs plus a lump sum for expenses of EUR 25.00. The defendant settled the claim in a letter dated 27.01.2015 and reimbursed EUR 842.07.

The plaintiff claims that witness B was already driving straight ahead and stationary at the time of the collision. The defendant had reversed into the stationary vehicle. She had honked immediately before the collision.

After the plaintiff has withdrawn the amount of EUR 0.56, he now applies for

1. order the defendants as joint and several debtors to pay the plaintiff EUR 841;50 plus interest at a rate of 5 percentage points above since 27.01.2015.
2. order the defendants as joint and several debtors to pay the plaintiff EUR 108.29 plus interest at a rate of 5 percentage points above the lis pendens.

The defendants request that the action be dismissed.

The defendant claims that both vehicles collided when pulling out of a parking space.

The action was served on the defendants on 11.04.15 and 13.04.15.

The court took evidence in accordance with the order to take evidence of 17.08.15 by hearing witness B. Please refer to the minutes of the hearing of 17.08.2015 (p. 51 of the file) for the results of the taking of evidence.

Reference is made to the exchanged written submissions and their annexes for further details of the facts and the dispute.

Reasons for the decision:

The admissible action is well-founded to the extent tenor.

The plaintiff is entitled to payment of € 359.52 from the defendants. Such a claim arises from §§7, 18 StVG, 115 Para. 1 No. 1 VVG.

Insofar as a further claim existed, this was extinguished by payment (§ 362 BGB). The plaintiff is liable for 30% of the damage in accordance with Section 17 (2) StVG.

The accident does not constitute an unavoidable event for either party within the meaning of Section 17 (3) StVG, so that the obligation to pay compensation on the part of one party or the other is not excluded from the outset. In such cases, the obligation to pay compensation and the extent of the obligation to pay compensation depend on the circumstances, in particular on the extent to which the damage was primarily caused by one party or the other. According to established case law, when weighing up the causation and culpability of the drivers of the vehicles involved, taking into account the operational hazards posed by both motor vehicles in accordance with Section 17 (1) StVG, only proven circumstances are to be taken into account in addition to undisputed and admitted facts, whereby the rules of prima facie evidence also apply.

Defendant 2) breached its duty of care under Section 9 (5) StVO and Section 1 (2) StVO. It appears that the defendant 2) breached its duty of care.

It is undisputed that the defendant 2) was driving backwards when the collision occurred. She culpably violated Section 9 (5) StVO and Section 1 (2) StVO. According to these regulations, a driver must behave in such a way when reversing so as to avoid endangering other road users; if necessary, he must be instructed. The extent to which these regulations apply to accidents in parking lots is controversial. Sometimes the provision of § 9 Para. 5 StVO is also considered directly applicable to accidents that occur when reversing in a parking lot (LG Kleve, NJW-Spezial 2010, 234; AG Herne, judgment of 17.02.2010, 20 C 389/98). According to another opinion, this provision is only applicable with restrictions in parking lots and parking garages where there is no “flowing” traffic (Hentschel/König/Dauer, Straßenverkehrsrecht, 42nd ed. 2013, § 9 StVO Rn 51; LG Saarbrücken, ZfSch 2011, 494; LG Saarbrücken, Schaden-Praxis 2012, 66). In justification, it is pointed out that in a parking lot, which is used solely for stationary traffic, unlike in moving traffic, maneuvering and thus also reversing vehicles must be expected at all times. Therefore, § 9 Para. 5 StVO and the exclusion of risk imposed on the person reversing are not directly applicable; instead, the requirement of general consideration (§ 1 Para. 2 StVO) must be observed here. However, the special care requirements of § 9 Para. 5 StVO are to be applied indirectly, because the visibility conditions are not insignificantly restricted when reversing compared to driving forwards, so that this driving maneuver is also inherently more dangerous in parking lots than vehicles driving forwards. The driver reversing therefore also has a four times higher duty of care in parking lots (OLG Hamm, judgment of 11.09.2012, 9 U 32/12).

Which of these views is to be followed can be left open here. If § 9 Para. 5 StVO is not considered to be directly applicable, the defendant 2) is in any case at fault for a violation of § 1 Para. 2 StVO: Defendant 2) reversed her car and did not pay sufficient attention to the plaintiff’s car. Otherwise she could have stopped her vehicle. The prima facie evidence speaks for her fault. She only noticed the plaintiff’s vehicle at the moment of the collision.

However, the plaintiff has shaken the prima facie evidence against him. The accident was also for the witness B. with the plaintiff’s vehicle in direct local and temporal connection with the reversing out of the parking space. In principle, it is recognized that in the event of a collision while reversing, prima facie evidence speaks for the fault of the person reversing (OLG Hamm, judgment of 11.09.20212, 9 U 32/12; KG Berlin, judgment of 25.10.2010, 12 U 3/09; Hentschel/König/Dauer, Straßenverkehrsrecht, 42nd ed. 2013, § 9 StVO Rn 55 a.E.).

According to the correct view, prima facie evidence also applies if a collision occurs as a result of reversing in a parking lot and one of the vehicles involved is already stationary (OLG Hamm, judgment of 11.09.20212, 9 U 32/12; KG Berlin, judgment of 25.10.2010, 12 U 3/09; LG Kleve, judgment of 11.11.2009, 5 S 88/09; AG Herne, judgment of 17.02.2010, 20 C 389/98; Hentschel/Kömig/Dauer, Straßenverkehrsrecht, 42nd ed. 2013, § 9 StVO Rn 55a.E.). This is because the dangers typically associated with reversing, which oblige the other driver to prevent endangering other road users in accordance with Section 9 (5) StVO, do not end immediately when the vehicle comes to a standstill. Otherwise, liability would depend on the question of whether the reversing driver (accidentally) manages to bring his vehicle to a standstill before the collision. There is still a specific reference to reversing even if the vehicle is only stationary for a short time (OLG Hamm, judgment of 11.09.20212, 9 U 32/12; LG Berlin, judgment of 11.11.2009, 5 S 88/09; Hentschel/König/Dauer, Straßenverkehrsrecht, 42nd ed. 2013, § 9 StVO Rn 55 a.E.).

However, the plaintiff has shaken the prima facie evidence against him. The prima facie evidence can be shaken if there is at least a serious possibility that the person reversing – in this case witness B. – had already been stationary for some time at the time of the collision or that she could not have seen the car of defendant 2) while reversing (OLG Hamm, judgment of 11/09/2012, 9 U 32/12).

The court is convinced that witness B. had already been stationary for some time. Witness B. gave a credible and detailed account of the fact that she had already been stationary for 30-40 seconds and had engaged forward gear when the collision occurred. She described that she had parked and then stopped in the lane between the parking spaces to allow two pedestrians to cross a crosswalk. The pedestrians had walked briskly across the pedestrian path. Her statement did not indicate that she was guided by the proximity of the plaintiff. Although the defendant 2), heard in person in accordance with § 141 ZPO, stated that the vehicles had reversed at the same time, she also admitted that she had seen the plaintiff’s vehicle for the first time at the time of the collision. She was therefore unable to state that the vehicles reversed at the same time. Furthermore, both witness B. and defendant 2) confirmed the accuracy of the police accident sketch. The police accident sketch confirms the plaintiff’s submission that witness B had already pulled out of her parking space and had come to a stop when defendant 2) hit the vehicle while reversing.

After weighing up the mutual contributions to causation, the court considers a division of damages of 70% to 30% at the expense of the defendant to be appropriate. The plaintiff must accept the increased operating risk of his car. Anyone using a public parking lot must expect other road users to constantly park in and out (OLG Oldenburg, judgment of 12.12.1991, 14 U 57/91).

The plaintiff’s damages in the amount of € 1,717.11 were therefore to be reimbursed in the amount of € 1,201.59. Furthermore, the € 842.07 paid was to be deducted, § 362 BGB.

The plaintiff is entitled to compensation for legal fees in the amount of € 54.15. The claim amounted to € 201.71, as the value in dispute was € 1,201.59 (70 % of € 1,717.11) The defendant (1) paid € 147.56, whereby the claim was partially extinguished in accordance with Section 362 BGB. There is no further claim as the damage was to be shared.

The award of interest follows from Sections 280 (1), (2), 286, 288 (1) BGB and Sections 291, 288 BGB.

Due diligence requirements when reversing out of a parking space; no joint liability of a vehicle standing in the traffic area, Section 9 (5) StVO

The Regional Court of Cologne – Case No. 5 O 47/15 ruled on October 1, 2015 that a person reversing out of a parking space must bear full liability if they hit a vehicle parked on the traffic area intended for moving traffic when reversing out.

From the plaintiff’s point of view, the accident occurred as follows:

The plaintiff is the owner of the VW Passat vehicle with the registration number K-OA 2977. On December 11, 2014 at around 11:50 a.m., the driver of the plaintiff’s vehicle parked the car in a supermarket parking lot in K. to go shopping in the supermarket. After completing his shopping, he returned to his vehicle. The driver of a police vehicle was there. He stated that he had caused a traffic accident with the police vehicle involving the plaintiff’s vehicle. He stated that he had driven into the driver’s door of the plaintiff’s vehicle while reversing out of a parking space.

The plaintiff was the owner of the vehicle parked in the traffic area. On the defendant’s side, a police vehicle was involved, so that the defendant was the state.

The 5th Civil Chamber of the Regional Court of Cologne ruled in favor of the plaintiff on the basis of an oral hearing:

The defendant state is ordered to pay the plaintiff € 505.29 plus interest in the amount of 5 percentage points above the base interest rate since January 15, 2015.

The defendant state is further ordered to pay the plaintiff € 86.30 plus interest in the amount of 5 percentage points above the base interest rate since January 15, 2015.

The remainder of the action is dismissed.

Orders the applicant to pay 15 % of the costs and the defendant Land to pay 85 % of the costs.

The judgment is provisionally enforceable.

Reasons for the decision:

(the facts of the case are not presented in accordance with Section 313a (1) ZPO).

The plaintiff has a claim against the defendant state for payment of the remaining damages in the amount of € 505.29 pursuant to Section 7 (1) StVG. § Section 7 StVG stands independently alongside the official liability claim and is not superseded by Section 839 BGB (see BGH NJW 1991, 1171).

The liability of the defendant state results from § 7 para. 1 StVG, because the damage to the plaintiff’s vehicle occurred during the operation of a motor vehicle whose owner is the defendant state, and force majeure within the meaning of § 7 para. 2 StVG is indisputably not present. This also applies accordingly to the plaintiff as the owner of the vehicle also involved in the accident.

If the basic liability of the aforementioned parties is therefore established, the obligation to pay damages and the extent of the compensation to be paid in accordance with Section 17 (1) and (2) StVG depends on the extent to which the damage was primarily caused by one party or the other. The contribution to causation is formed by the sum of the dangers that emanated from the vehicle in the specific accident situation and had a detrimental effect on the other party in the accident (see BGH NZV 2010, 293 ff.; Heiß in Burmann/Heß/Janker, Straßenverkehrsrecht, 22nd ed. 2012, Section 17 StVG para. 14). The characteristics of the vehicle (in particular its mass), its speed, the specific driving maneuver (e.g. turning, entering or exiting, overtaking), but also subjective circumstances, in particular misconduct on the part of the driver (violation of traffic regulations), must be taken into account. If such objective or subjective circumstances exist, the operating risk posed by the vehicle in the specific accident situation may be increased due to the driver’s fault, with the result that the contribution to causation is more severe (see BGH NZV 2010, 167f.; NZV 2007, 190).

According to these principles, it can be assumed that the driver of the police vehicle was solely responsible for the damage incurred in this case. When reversing his car in the parking lot, he had to behave in such a way as to avoid endangering other road users, Section 9 (5) StVO. Special care is expected of the reversing driver; in case of doubt, he must be instructed. When reversing, the driver must also ensure that the space behind the vehicle is clear before starting to reverse, even in areas that he cannot see in the rear-view mirror (OLG Nuremberg NZV 1991,67; OLG Oldenburg NZV 2991,377). While reversing, the driver must carefully ensure that no one else enters the danger zone from the side or from behind; in particular, he must drive so slowly that he can stop immediately if necessary (OLG Köln NZV 1994,321; OLG Oldenburg VRS 100, 432; OLG Düsseldorf VRS 87, 47; Hentschel, StraßenverkehrsR, StVO § 9 Rn. 51). The driver of the police vehicle did not fulfill this duty of care, which in principle leads to full liability – with the operating risk of the opposing vehicle being set aside (see KG NJW-RR 2010, 1116).

There is no evidence of contributory negligence on the part of the driver of the plaintiff’s vehicle. This even applies in the event that – as the defendant state argues – the vehicle was parked in the area of the traffic area designated for moving traffic in the parking lot. The court is convinced that the case is comparable to the case in which a vehicle reversing out of a parking lot collides with a vehicle that the opposite parking space has also previously parked and then stopped (see KG NJW-RR 2010, 1116 – 100% liability of the reversing car). The plaintiff’s vehicle was not at fault. The collision occurred exclusively in the course of the police vehicle reversing towards the stationary plaintiff’s vehicle. The increased duty of care when reversing serves precisely to protect the traffic area into which the vehicle is to drive and which the driver cannot see as well as when driving forwards, Section 9 (5) StVO.

The defendant Land is therefore obliged to compensate the plaintiff in full for the damage suffered. The deduction of € 505.29 made by the defendant state on the basis of a joint liability of 25% assumed by the plaintiff is not justified.

However, the defendant Lad is right to deduct the VAT share of € 88.35 included in the dealer’s margin according to the expert’s report. VAT is only to be reimbursed if it is actually incurred (see Palandt/Grüneberg, 74th ed. 2015, Section 249 para. 27). With regard to the plaintiff’s right to deduct input tax, a claim for compensation is therefore out of the question.

Accordingly, the plaintiff is entitled to payment of € 505.29 from the defendant state.

The payment awarded results from default, §§ 286 Para. 1, Para. 2 No. 3, 288 Para. 1 BGB.

The plaintiff is still entitled to compensation from the defendant state for out-of-court legal costs. Based on an object value of € 2,021.16, these amount to € 281.30 (1.3 business fee in the amount of € 261.30 plus a lump sum for expenses in the amount of € 20). The defendant state has already paid an amount of € 195.00, so that a remaining claim of € 86.30 remains. The claim for interest awarded in this respect is again based on default, §§ 286 para. 1, para. 2 no. 3, 288 para. 1 BGB.

The decision on costs is based on Section 92 (1) ZPO.

The decision on provisional enforceability is based on Sections 708 No. 11, 711, 713 ZPO.

Value in dispute: 593.64 €

Temporal spatial connection between reversing and accident; no temporal spatial connection when entering from a property at a speed of 30 km/h and at least 31 m driving distance; amount of the lump sum for accident costs AG Hamburg – EUR 20.00

In the legal dispute, the Hamburg Local Court had to rule on the question of a temporal and spatial connection between an accident when reversing (by the defendant) and after entering the carriageway from a property (by the plaintiff). Furthermore, it was confirmed that the Hamburg Local Court has consistently awarded a lump sum for accident costs of EUR 20.00. The action for damages brought by the vehicle that initially drove onto the carriageway from a property was upheld.

The Local Court of Hamburg ruled in favour of the defendant on the basis of the hearing on 20.11.2014:

1. The defendants are ordered as joint and several debtors to pay the plaintiff EUR 1,448.95 plus interest of 5 percentage points above the prime rate on EUR 1,298.95 since March 20, 2014 and on EUR 150 since December 13, 2014 as well as pre-trial attorney’s fees in the amount of EUR 201.71 plus interest of 5 percentage points above the prime rate since May 18, 2014.

The remainder of the action is dismissed.

The defendants are jointly and severally liable to pay the costs of the proceedings.

The judgment is provisionally enforceable for the plaintiff against provision of security amounting to 110% of the amount to be enforced in each case.

Facts:

The plaintiff is seeking damages from the defendants following a traffic accident on November 6, 2013 in P-Allee in H.

On the day of the accident at around 6 p.m., the plaintiff turned right into P-Allee from a parking lot at P-Allee in his BMW and drove in the direction of E-Straße. The speed limit on P-Allee is 30 km/h. Shortly before the junction with G-Straße, the plaintiff collided with the VW Golf driven by the defendant and insured with the defendant for traffic liability. The defendant had previously reversed out of G-Straße, which leads into P-Allee via a lowered kerb. The plaintiff’s vehicle collided with the rear left corner of the defendant’s vehicle. The accident caused material damage to the plaintiff’s vehicle, which was repaired in the workshop between 7 April 2014 and 10 April 2014; according to the cost estimate, the repair costs amounted to EUR 1,278.95 net or EUR 1,521.95 gross.

The plaintiff claims that he made sure that the road was clear in both directions before he turned from the parking lot onto P-Allee. Only when he had covered approx. 45 m on P-Allee did the defendant spontaneously and unpredictably turn backwards out of G-Straße into P-Allee. Despite immediate emergency braking, he was no longer able to prevent the collision on the wet road surface.

The plaintiff believes that the defendant disregarded the necessary care and the plaintiff’s right of way when reversing. This applies regardless of whether the defendant’s vehicle was still moving immediately before the collision or was already stationary. In any case, there was double prima facie evidence against the defendant. For the plaintiff, on the other hand, the accident was an unavoidable event.

With his claim served on the defendant on 17.05.2014, the plaintiff seeks compensation for the net repair costs in the amount of EUR 1,278.95. plus a lump sum for accident costs in the amount of EUR 25.56. in the amount of 25.56 euros. Furthermore, the plaintiff claims loss of use during the three-day repair of the car in the amount of (3x 50.00 euros =) 150.00 euros as well as damages for out-of-court legal proceedings in the amount of 201.71 euros. in the amount of 201.71 euros.

The plaintiff requests that the defendants be ordered as joint and several debtors to pay the plaintiff EUR 1,304.51 plus 5 % interest above the prime rate since March 20, 2014.

Order the defendants as joint and several debtors to pay EUR 201.71 plus 5 % interest above the prime rate from the date on which they became legally liable.

In a written statement dated December 4, 2014, which was received by the defendants on December 13, 2014 at the latest, the plaintiff filed an additional claim requesting that the defendant be ordered to pay the plaintiff a further EUR 150.00 plus interest of 5 percentage points above the base interest rate since the pendency of the action.

The defendants request that the action be dismissed.

The defendants claim that the defendant was already on P-Allee when the plaintiff turned from the parking lot onto P-Allee. The defendant had immediately stopped his vehicle, which at that time was already one third of the length of his vehicle on P-Allee, when he saw the plaintiff approaching. The defendant was unable to do more. The plaintiff, on the other hand, was inattentive and slid into the defendant’s vehicle on the wet road. The defendants believe that there is prima facie evidence against the plaintiff, who drove into the defendant out of carelessness. There is a close spatial and temporal connection with the plaintiff driving out of a property in accordance with §10 StVO. For this reason, too, there is a presumption that the plaintiff was solely at fault.

For further details of the facts and the dispute, reference is made to the exchanged written submissions and annexes.

At the hearing on November 14, 2014, the court briefly heard the plaintiff and the defendant in person about the course of the accident in accordance with Section 141 ZPO, but did not record this in the minutes.

Reasons for the decision

(reverse parking)

I. The admissible action is justified to the extent shown in the operative part. The plaintiff has a claim against the defendant for payment of EUR 1,448.95 as well as EUR 201.71 for pre-trial prosecution under §§18 (1), (3); 17 (1), (2) StVG, 823 (1) BGB. A corresponding direct claim against the defendant as the compulsory liability insurer follows from §115 Para.1 No.1 VVG in conjunction with §§18 Para.1,3;17 Para.1,2 StVG.

1. The weighing up of the respective contributions to causation of the parties involved in the accident, as required by §§ 18 para. 1, 3; 17 StVG, leads to the sole liability of the defendant on the merits.The defendant was the driver of a motor vehicle at the time of the accident. While operating the vehicle, he caused the damage to the plaintiff’s vehicle; the accident is attributable to the sole fault of the defendant. This follows from a comprehensive consideration of the contributions to causation and responsibility of the defendant and the plaintiff, §§ 18 Para. 3, 17 StVG. This is because the plaintiff was also involved in the accident as the driver of a motor vehicle at the time of the accident.
2. It must be assumed that the defendant was solely at fault. Due to the traffic accident, which was closely related to the defendant’s reversing, there is a prima facie presumption that the defendant did not take sufficient care (OLG Cologne, judgment of July 19, 2005-4 U 35/04- cited in juris). This is because the defendant was obliged under Section 9 (5) StVO to avoid endangering other road users when reversing. A corresponding obligation also arises for the defendant from Section 10 sentence 1 StVO when driving onto a road over a lowered kerb / see Saarland Higher Regional Court Saarbrücken, judgment of 27.11.2014 – 4 U 21/14 -, para. 62 ff., cited from juris). The defendant drove backwards over a lowered kerb onto the carriageway in a close spatial and temporal connection with the accident (cf. Sections 9 (5) and 10 StVO). This driving maneuver by the defendant had not yet been completed at the time of the accident, as the defendant’s vehicle was only a third of the way along P-Allee. The defendant had not yet fully joined the flowing or stationary traffic on the priority lane before the accident. This is indicated not only by the inclined position of the defendant’s vehicle at the time of the accident, which is proven beyond doubt by the damage pattern and the accident sketches (BI.11 and 22 of the annex), but also by the immediate proximity of the scene of the accident to the intersection of P-Allee/G. Straße. It is irrelevant whether the defendant’s vehicle was still moving at the time of the accident or had already come to a standstill. The court does not consider a close spatial and temporal connection to the dangerous maneuver to be interrupted by the fact that the vehicle was brought to a standstill before the accident (OLG Celle, decision of 27.06.2005- 14 U 72/05 OLG Köln, judgment of 19.07.2005-4 U 35/04 LG Bochum, decision of 21.01.2009- 10 S107/08 AG Hamburg, decision of 16.02.2006-51a C 121/05 so also Burmann/ Heß/ Jahnke/ Janker, 23rd edition 2014, Straßenverkehrsrecht, §10 StVO Rn.8).
3. The defendants have also not been able to refute the appearance against the defendant. It has not been established and has not been proven that the defendant complied with the high standard of care required by §§ 9 Para. 5, 10 StVO. The defendants have also not succeeded in proving that the plaintiff was at fault for the accident, although it is true that the plaintiff also drove his vehicle onto the roadway from a property beforehand, whereby the plaintiff was also obliged to observe the due diligence requirements of § 10 StVO. Contrary to the opinion of the defendant, however, the subsequent accident was no longer in a direct temporal and spatial connection with driving out of the parking lot. This is because the court considers it impossible that the exit from the parking lot could have influenced the subsequent accident. At the time of the accident, the plaintiff had already definitively joined the flow of traffic (see OLG Cologne, judgment of July 19, 2005 – 4 U 35/04 -; KG, decision of December 28, 2006 -12 U 178/06 -; decision of December 27, 2006 -12 U 94/06 – each cited in juris). The court is able to rule out a relevant disturbance of flowing traffic (see Quaisser, NJW-Spezial 2008,745) due to the plaintiff driving into the parking lot, at least at the time of the accident. This is also supported by the considerable distance between the parking lot driveway and the scene of the accident, which – further than stated by the defendants – amounts to approx. 45 m, but in any case over 31 m. Due to the low speed of the plaintiff’s vehicle, the subsequent accident also occurred at a certain distance from the exit of the parking lot, and the plaintiff was not at fault due to a prima facie presumption against the plaintiff. This is because the conditions for this are not met here. It is true that the plaintiff drove into the defendant’s vehicle, which in principle leads to the presumption of lack of attention on the part of the driver (BGH, judgment of January 16, 2007 – VI ZR 248/05). However, the rear-end collision here lacks the typicality required for prima facie evidence (BGH, judgment of 05.04.2006 – VIII ZR 283/05). This is because prima facie evidence resulting from the rear-end collision presupposes that the person behind was able to adjust to the person in front for a certain period of time (OLG Düsseldorf, judgment of 19.01.2010, – I-1 U 89/09). However, the court here assumes that the defendant’s vehicle only turned out of G. Straße onto P. Allee shortly before the accident. This is supported by the fact that both the plaintiff and the defendant claim that the road was clear at the time they drove onto P. Allee and that other road users were not visible. It can also be assumed that the defendant would otherwise have already completed his maneuver and cleared the intersection.
4. The mere operational risk of the plaintiff’s vehicle, however, takes a back seat to the presumed fault of the defendant. This is because, due to the high standard of care required by Sections 9 and 10 of the German Road Traffic Regulations (StVO) and the close connection between the defendant’s driving maneuver and the accident, the fault imputed to the plaintiff is comparatively much more serious (OLG Munich, judgment of 25.03.1994 – 10 U 4856/93; OLG Hamm, judgment of 20.09.2010 – 1-6 U 222/09, Burmann/Heß/Jahnke/Janker loc. cit.).
5. The plaintiff has a claim against the jointly and severally liable defendants for payment of the fictitious net repair costs in the amount of . EUR 1,278.95 and loss of use damages in the amount of EUR 150.00. Contrary to the plaintiff’s opinion and in accordance with the established case law in Hamburg, the lump sum for accident costs, which is also generally reimbursable, is only to be set at an amount of EUR 20.00. Such an amount appears to be reasonable, but is also in line with the established case law in Hamburg. Such an amount appears appropriate, but also sufficient to cover the other costs incurred as a result of the accident, such as for letters and telephone calls. Moreover, the amount corresponds to the flat rate for expenses that a lawyer can claim in accordance with Annex 1 No. 7002 of the RVG. The claim was to be dismissed in the amount of the further EUR 5.56. The costs for out-of-court legal proceedings are also recoverable (in full). In view of the complexity of traffic law, which is characterized to a particular extent by case law, the use of a lawyer for enforcement appears to be necessary on a regular basis. Nothing else applies to the present case.
6. The claim for interest follows from §§ 280, 286, 288 para. 1, 291 BGB.
   

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