In traffic law, accidents in traffic moving in the same direction often cause difficulties. The problem is that the injured party has to provide full proof that the person who caused the damage changed lanes in disregard of the injured party’s vehicle. The injured party is regularly required to provide evidence if no accident witnesses are available. Obtaining expert evidence by obtaining an accident reconstruction report does not usually produce a satisfactory result, as the evidence on the vehicles usually leaves no usable impressions in the event of a parallel collision. Damages are then apportioned due to the fact that the accident cannot be clarified. In its decision of May 21, 2010, the District Court of Wuppertal, after hearing witnesses, considered it clear which party was at fault for leaving their lane and causing the accident, with the consequence that the lane changer was fully liable(Wuppertal District Court, judgment of May 21, 2010, Ref.: 32 C 140/08).
Accident involving a vehicle reversing into a parking space; standard of care when passing a vehicle reversing into a parking space; safety distance; apportionment of liability
In its judgment of April 15, 2014 – case no. 11 S 301/13 – the Regional Court of Cologne ruled that a sufficient safety distance must be maintained when passing a vehicle parking in reverse. When choosing a safe distance, the person driving past must take into account the fact that the other vehicle may swerve into the lane they have chosen when parking in reverse (also according to OLG Düsseldorf, judgment of 11.10.2011 – Ref. I-1 U 19/11). This is not overtaking within the meaning of Section 5 StVO, as this requires the vehicle to be overtaken to be moving clearly. The passing vehicle must either stop behind the parked vehicle or maintain the required safety distance. The Cologne Regional Court considers a distance of 50 cm when passing to be too small. The court does not specify the minimum distance at which the vehicle must pass.
If an accident occurs when reversing into a parking space, prima facie evidence suggests that the person reversing is at fault. Just as the person driving past has to pay attention to the swerving of the person parking in reverse, the person reversing is also obliged to pay attention to this. The person reversing cannot exculpate himself by stating that he looked behind before parking and did not see a vehicle approaching. Especially when reversing into a parking space, the reversing driver must not only concentrate on the parking process itself, but must also carefully observe the surrounding traffic area as a whole due to the particular hazardous situation (OLG Düsseldorf, loc. cit.). The person reversing must not only pay attention to the traffic behind them at the start of the reversing maneuver, but must also keep a constant lookout during the entire maneuver.
If the passing driver violates the minimum distance requirement and the reversing driver violates the permanent obligation to keep a safe distance, the Regional Court holds that 60% of the causation is at the expense of the reversing driver and 40% at the expense of the passing driver.
Prima facie evidence against the person getting in or out; standard of care when driving past an illegally parked parcel service vehicle on the road; accident caused by opening the driver’s door
In the legal dispute between Ms. D., the plaintiff, and the defendant insurance company and the driver of the defendant vehicle, the Cologne District Court ruled in favor of the plaintiff:
The defendants are ordered as joint and several debtors to pay the plaintiff € 3,218.64 as well as pre-trial legal fees in the amount of € 359.50, plus interest in the amount of 5 percentage points above the respective base interest rate since September 18, 2013.
The remainder of the action is dismissed.
The plaintiff shall bear 11% of the costs of the legal dispute and the defendants shall bear 89% jointly and severally.
The judgment is provisionally enforceable, but for the plaintiff only against provision of security amounting to 110% of the amount to be enforced. The plaintiff may avert enforcement against itself by providing security amounting to 110% of the amount to be enforced, unless the defendants provide security in the same amount prior to enforcement.
Facts:
The plaintiff claims damages from the defendant 1) as liability insurer and the defendant 2) as driver of the truck from a traffic accident that occurred in K. on November 5, 2012. On the day of the accident at around 4:40 p.m., the plaintiff’s husband Mr. W. was driving his car on M. Straße in K. M. Straße is a one-way street. There are parking lanes on both sides. The defendant’s vehicle was parked in the second row on the right-hand side of the road at no. 42. Mr. W. intended to drive past the defendant’s vehicle on the left. Defendant 2) opened the door of the defendant’s vehicle, although it is disputed when this happened. There was a collision between the plaintiff’s car and the door of the defendant’s vehicle. The plaintiff’s vehicle drove over the foot of the defendant’s vehicle (2). The plaintiff’s vehicle was financed via S. Bank and assigned to it as security. The last installment was paid on 25.01.2013. S. Bank assigned its claims arising from the traffic accident on 05.11.2012 to the plaintiff in a declaration dated 10.09.2013. The plaintiff is claiming repair costs of € 2,581.00 net, a reduction in value of € 150.00, expert fees of € 581.01 and a lump sum for costs of € 25.56. Furthermore, she demands compensation for out-of-court legal fees. The defendant referred the plaintiff to the Eurogarant-certified workshop F-M. with regard to the repair and set repair costs at € 2,462.63. The plaintiff claims that the defendant (2) suddenly and unexpectedly opened the door at the moment when Mr. W. drove past the defendant’s vehicle. In addition, the distance to pass the defendant’s vehicle was very narrow due to its illegal parking in the second row. Furthermore, the plaintiff claims that the repair work calculated in the expert opinion submitted by her was necessary to repair the damage caused by the accident. The plaintiff requests that 1. the defendants be ordered as joint and several debtors to pay her € 3,337.57 plus 5% interest above the prime rate since February 15, 2013, 2. the defendants be ordered as joint and several debtors to pay her € 419.48 plus 5% interest above the prime rate since lis pendens. The defendants request that the action be dismissed. They claim that defendant 2) had just wanted to get back into his vehicle. He had made sure that no vehicles were approaching from behind and had walked along the left side of the vehicle. He had opened the driver’s door and had already put his right leg into the vehicle when the plaintiff’s vehicle suddenly drove past him. The defendants denied that the fog lights and the left door handle had been damaged in the accident. The court took evidence on the basis of the order to take evidence of 06.11.2013. With regard to the result of the taking of evidence, reference is made to the expert opinion of the expert Dipl.-Ing. H. of 16.05.2014. The public prosecutor’s file was available and was the subject of the hearing. With regard to the facts of the case and the dispute in detail, reference is also made to the content of the pleadings and their annexes.
Reasons for the decision:
The admissible action is largely justified. The plaintiff can demand further compensation from the defendants in accordance with §§ 7 Para. 1, 17, 18 StVG; 115 VVG in the amount of € 3,218.64 plus corresponding legal fees and interest. The defendants are liable for 100% of the damage caused by the accident. The plaintiff only has to accept deductions for the repair costs. The plaintiff is actively legitimized. S. Bank has effectively assigned its claims for damages to the plaintiff. It is correct that there was no active legitimation beforehand, as S. Bank was the owner of the vehicle at the time of the accident. However, as there is no doubt as to the validity of the declaration of assignment and the implied acceptance by the plaintiff, the plaintiff has active legitimacy from the time of the assignment. According to the undisputed submissions of the parties, prima facie evidence already spoke for the fault of the defendant 2). When getting in or out of the car and also when opening the door, one must behave in accordance with § 14 StVO in such a way that any danger to other road users would have been excluded. If a traffic accident occurs in the immediate local and temporal context of getting in or out of a parked vehicle, the evidence of the first sign speaks for a negligent breach of duty of care (see KG Berlin, decision of 22.11.2007, 12 U 199/06). The defendants have not succeeded in rebutting the prima facie evidence against them. They did not prove that the door was already open when the plaintiff’s vehicle began to drive past the defendant’s truck. On the contrary, the statements of the expert Dipl.-Ing. H. showed that the door of the defendant’s vehicle was pushed open and opened almost to the maximum as the plaintiff’s car drove past. The expert was able to determine this on the basis of the vertical notch in the fender of the plaintiff’s vehicle and the kink in the front edge of the door of the defendant’s truck. The wedging of the door between the vehicles also speaks for a dynamic opening of the door. Furthermore, the plaintiff’s car was not too close to the defendant’s vehicle. The expert Dipl.-Ing. H. stated that the plaintiff maintained a distance of one meter from the defendant’s vehicle. Since it has not been proven that the door of the defendant’s vehicle was already open when Mr. W. started to drive past, it could not be demanded that the plaintiff’s vehicle maintained a greater safety distance than one meter. The fact that the defendant 2) was next to the vehicle does not change this. There were no indications that the distance to the defendant 2) would not have been sufficient if he had not moved further into the lane without paying attention to the traffic. In this regard, the expert clearly demonstrated, by means of photographs of a self-experiment, that the foot of the defendant 2) only moved further outwards as a result of his movement and more towards the end of the movement. The court saw no reason to doubt the expert’s convincing explanations. He is known from a large number of proceedings. His expertise and specialist knowledge are beyond question; his reasoning is comprehensible and consistent. Furthermore, it has not been proven that the defendant 2) looked around to the rear before opening the door. Insofar as the second defendant claimed this and stated that the plaintiff’s vehicle was too far away for him to have been able to see it at that time, the court does not consider his statements to be credible. Since the expert has convincingly explained that the door was actively opened against the vehicle, the door opening can only have taken place when the plaintiff’s vehicle was next to the defendant 2). When looking around shortly beforehand, the plaintiff’s vehicle should also have been perceptible to the defendant 2). The fact that he did not notice it only allows the conclusion that he did not look behind before opening the door. The defendants also did not succeed in proving contributory negligence on the part of Mr. W.. From the perspective of an approaching vehicle, it could not be ruled out that the defendant 2) would open the door. However, Mr. W., as a participant in the flow of traffic, was entitled to trust that the defendant 2) would behave in a traffic-compliant manner. He did not have to expect that the defendant 2) would open the driver’s door almost completely into the roadway without paying attention to the other traffic and without looking around. No driver should expect to open a door one meter wide. In addition, the defendant 2) created the dangerous situation that led to the accident in the first place by parking in the second row and thus violating § 12 StVO. Defendant 2) was not entitled to park on the roadway (see Jagusch/Hentschel Straßenverkehrsrecht, 40th edition, § 12 StVO marginal no. 40). It was also not a matter of a short-term, urgent stop, as the defendant 2) himself stated that he had delivered parcels on the other side of the road. Nor was he himself able to rule out the possibility that there were free parking spaces on the left-hand side that he could have used. If he had not been standing in this spot in violation of the law, an even greater distance would have been possible for Mr. W.. Particularly in view of the fact that the defendant 2) caused a narrow space through his behavior, he should have paid even greater attention to the duty of care under § 14 StVO than was required. Under the given circumstances, it was irrelevant whether the accident was an unavoidable event for the driver of the plaintiff’s vehicle within the meaning of § 17 Para. 3 StVG. In any case, in the court’s opinion, the operational risk emanating from the plaintiff’s vehicle had to be completely set aside in the liability assessment to be carried out in accordance with § 17 Para. 1 StVG in view of the fault of the defendant 2) and his violations of §§ 12, 14 StVO. The plaintiff is entitled to compensation for 100% of the damage incurred. This is based on repair costs of € 2,462.63. The plaintiff has accepted the hourly rates quoted by the defendants. Furthermore, deductions must be made for the fog lights and the left door handle. Since the collision occurred on the right, the left door handle cannot have been damaged. Damage to the fog lamp, which has been disputed, has not been presented or explained in more detail by the plaintiff, even after being pointed out by the court. Furthermore, an undisputed reduction in value of € 150.00, the expert costs of € 581.01 and a lump sum for costs, which the court has consistently set at € 25.00, are to be assessed. This results in total damages of € 3,218.64. Furthermore, the plaintiff can demand compensation for corresponding legal fees at a justified value of € 3,218.64. This results in a 1.3 fee of € 282.10 plus lump sum and VAT, a total of € 359.50. The claim to the interest awarded is based on §§ 288, 291 BGB. Interest was only to be awarded from receipt of the declaration of assignment, as the plaintiff was not entitled to claim before then.
The procedural ancillary rulings are based on sections 92 (1), 269 (3) sentence 2, 708 no. 11, 709, 711 ZPO.
Error when changing lanes, prima facie evidence
This legal dispute concerns a lane change error by the defendant.
On May 11, 2015, the Cologne District Court ruled in written proceedings pursuant to Section 128 ll ZPO that the plaintiff in these proceedings is entitled to the damages claimed.
Facts:
On July 13, 2014, a traffic accident occurred on V. Street in K. involving the plaintiff as the owner and keeper of a Mercedes car with the registration number X driven by the defendant and the defendant 1) as the driver of a Mercedes car with the registration number Y insured with the defendant 2). The plaintiff’s car was damaged in this accident. The plaintiff obtained an expert opinion from a surveyor’s office, which estimated the vehicle damage on a repair cost basis at € 1,252.46 net. The plaintiff incurred expert costs of € 447.74, and in the present action he is also claiming a lump sum for costs of € 25.00, i.e. a total amount of € 1,725.20 as claim 1). Before the accident, the plaintiff’s driver was driving the plaintiff’s car in the right-hand lane of the two lanes of V.-Strasse towards the city center; the defendant (1) was initially driving in the left-hand lane of the two lanes, slightly offset in front of the plaintiff’s vehicle. Defendant 1) then switched to the right-hand lane.
The plaintiff claims that the defendant 1) initiated the lane change after passing the B-road and overlooked the plaintiff’s vehicle. This is why the two vehicles collided. The plaintiff is of the opinion that the accident occurred in a direct temporal and spatial connection with the lane change. He refers to the investigation file and claims that the defendant 1) stated in the investigation proceedings that he had not seen the plaintiff’s vehicle when the lanes were changed.
(…)
The defendants claim that although it is true that the defendant 1) first drove in the left lane and then switched to the right lane, this lane change had already been completed some time ago when the plaintiff’s driver hit the defendant’s vehicle. They are of the opinion that in this respect there is no longer a direct connection with the lane change of the defendant 1). This is also shown by the damage to the two vehicles. The defendant’s vehicle was damaged in the middle of the rear. The defendants believe that everything points to a rear-end collision.
The file of the Cologne public prosecutor’s office has been consulted in accordance with the announcement in the court order dated December 18, 2014.
Reasons for the decision:
The action is well-founded with regard to the principal claim and well-founded with regard to the ancillary claim.
The plaintiff is entitled to claim damages from the defendants as joint and several debtors in the amount awarded pursuant to §§ 7 l, 18 l and lll StVG in conjunction with § 115 l No. 1 VVG due to the traffic accident in K. which is the subject of the dispute.
When operating the car driven by the defendant 1) and insured with the defendant 2), the plaintiff suffered damage in the form of damage to his own car, which is not attributable to force majeure. The assessment of liability to be carried out in accordance with §§ 17 l and ll in conjunction with 18 l and lll of the German Road Traffic Act (StVG) of the contributions to causation made by the vehicles involved leads in this case to the defendant being solely liable for the accident, as it can be assumed that the accident is solely attributable to misconduct on the part of the defendant 1), which is so serious that any joint liability on the part of the plaintiff, in particular the operating risk posed by the plaintiff’s vehicle, is completely secondary.
It is undisputed that the defendant 1) changed from the left lane, which he was initially driving in, to the right lane, which the plaintiff was driving in, whereby he moved in front of the plaintiff’s vehicle. According to the plaintiff’s statement of facts, the accident is said to have occurred because the defendant 1) overlooked the plaintiff’s vehicle when initiating the lane change. Insofar as the defendants claim that the lane change of defendant 1) had already been “completed for some time” when the accident occurred, this objection is irrelevant. This is because the defendant’s factual submission in this regard regarding the alleged lack of a direct local and spatial connection with the lane change is unsubstantiated. Even if one were to assume that the collision between the two vehicles only occurred when the defendant’s vehicle was already completely in the right-hand lane, this does not mean that the lane change was “completed” in the legal sense. This is because in the event of a collision with the following vehicle immediately after the lane change, the appearance speaks for the disregard of the duty of care according to § 7 V StVO (so also: König in Hetschel/König/Dauer/, Straßenverkehrsrecht, 42 Aufl., § StVO Rn 17). In this case, it is up to the lane changer to demonstrate in detail that the lane change that has just taken place has no spatial or temporal connection with the accident. In the present case, however, the defendant does not specifically state to what extent this spatial and temporal connection should already have been completed with the lane change carried out by the defendant 1). It is merely claimed that the lane change had been completed “some time ago”. However, this would have been necessary in order to shake the appearance of a disregard of the duty of care from § 7 V StVO, which speaks against the defendant 1).
Such a presentation of the facts by the defendant would have been all the more necessary as, according to the recorded statements of the parties involved, the police officers of defendant 1) are said to have stated that there was a collision when changing to the right lane and that, according to information from UB 01 (defendant 1), he did not see UB 02 (the plaintiff’s driver). On sheet 2 of the supplementary file it is also recorded as a literal statement by the defendant 1): “I did not see him.” However, such a statement indicates that there was a collision with the person behind while changing lanes. This statement would make no sense if the accident had been a rear-end collision, as claimed by the defendant.
Contrary to the opinion of the defendant, no conclusions can be drawn from the damage pattern that the lane change had been “completed” in the legal sense, but rather that a rear-end collision had occurred. For the above-mentioned reasons, a violation of § 7 StVO is also given due to the still existing spatial and temporal connection with the lane change if the vehicle changing lanes has just reached the targeted lane, i.e. is already completely in the lane at this time and the collision now occurs. The damage pattern would then correspond completely to the damage pattern of a rear-end collision. In both cases, the vehicle in front would already be completely in the right-hand lane.
Since it can be assumed after all this that a collision occurred either – according to the plaintiff’s submission – during the lane change, or in any case in a direct spatial and temporal connection with this lane change, the so-called prima facie evidence is in dispute against the defendant 1). prima facie evidence, i.e. the appearance of a culpable traffic violation, which could only be dispelled by demonstrating and providing full proof that an atypical sequence of events had occurred and that the damaging event could not have been avoided even with the greatest possible care. There is a presumption of fault on the part of the driver concerned according to the principles of prima facie evidence. This is because 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 undertakes this driving style that, according to life experience, this driver must be regarded as the guilty party. In such cases, it is justified to make a presumption of evidence (prima facie evidence) against him, which he must rebut. Changing lanes within the meaning of § 7 V StVO is one such dangerous offense. In the case of prima facie evidence, only the sole liability of the party against whom the prima facie evidence speaks can generally be considered in the weighing up required under § 17, 18 StVO.
This is also the case here. In particular, no contributory negligence on the part of the plaintiff has been presented by the defendant that would be suitable to at least partially shake the prima facie case against the defendant 1), which the defendant 2) must also take into account.
In the context of § 17, 18 of the Road Traffic Act (StVG), the mutual contributions to causation had to be weighed against each other and it had to be assumed that the defendant 1) was solely at fault, which is so serious due to the violation of an appearance (see above) that the operational risk emanating from the plaintiff’s vehicle, which is to be taken into account here alone, completely recedes behind it.
The defendants are 100% liable for the accident.
The plaintiff’s compensable damage amounts to the € 1,725.20 claimed. In the present action, the plaintiff is only claiming a lump sum for costs of € 25.00, which is deemed appropriate and necessary by way of a judicial estimate based on Section 287 ZPO. The amount of the other claims for damages is also undisputed.
The claim for interest arises from §§ 286 ll no. 3, 288 l BGB. It is undisputed that the defendant 2) seriously and definitively refused to settle the claim in a letter dated 12/09/2014. At this point in time, the defendants were therefore in default.
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Temporal and spatial connection of a rear-end collision after lane change; prerequisite for shaking the prima facie evidence
In its ruling of June 1, 2015 – case no. 262 C 185/14 – the Cologne District Court had to decide whether, after the defendant had changed lanes into the plaintiff’s lane, a rear-end collision between the plaintiff’s vehicle and the defendant’s vehicle was to be regarded as having a temporal and local connection with the lane change.
According to the decision of the Cologne Local Court, the person changing lanes is 100% liable if the accident is still spatially related to the lane change and no other circumstances are involved.
Even if the lane changer has already completely changed lanes with his vehicle, a rear-end collision that then occurs can still be related in time and space to the lane change.
The prerequisite for disproving the prima facie evidence (disregard of the duty of care according to § 7 StVO) against the lane changer is:
- Presentation of the distance the lane changer has already traveled with his vehicle in the lane after the lane change to the point of collision.
- Lecture on the time between the lane change and the collision.
Facts:
On 13.07.2014, a traffic accident occurred involving the plaintiff as the owner and keeper of a Mercedes car driven by Mr. B and the defendant as the driver of a Mercedes car with liability insurance with the defendant. The plaintiff’s car was damaged in this accident. The plaintiff obtained an expert opinion from the expert office P, which estimated the vehicle damage on a repair cost basis at 1,252.46 euros net. The plaintiff incurred 447.74 euros in expert costs and is also claiming a lump sum of 25.00 euros in the present action. Prior to the accident, Mr. B was driving the plaintiff’s car in the right-hand lane of the two lanes heading into the city; the defendant was initially driving in the left-hand lane of the two lanes, slightly offset in front of the plaintiff’s vehicle. The defendant then switched to the right-hand lane.
The plaintiff claims that the defendant initiated the lane change after passing the B-road and overlooked the plaintiff’s vehicle. This is why the two vehicles collided. The plaintiff is of the opinion that the accident occurred in a direct temporal and spatial connection with the lane change. He refers to the investigation file and claims that the defendant stated in the investigation that he had not seen the plaintiff’s vehicle when changing lanes.
The plaintiff requests that the defendants be ordered as joint and several debtors to pay him EUR 1,725.20 plus 5% interest above the base interest rate since 12.09.14 and to pay his legal expenses insurance, A , EUR 255.85 plus interest of 5 percentage points above the base interest rate since the lis pendens.
The defendants request that the action be dismissed.
The defendants claim that although it is true that the defendant first drove in the left lane and then switched to the right lane, this lane change had already been completed for some time when Mr. B drove into the defendant’s vehicle. They are of the opinion that in this respect there is no longer a direct connection with the defendant’s lane change. This is also shown by the damage to the two vehicles. The defendant’s vehicle was damaged in the middle of the rear. The defendants believe that everything points to a typical rear-end collision.
Reasons for the decision:
The action is justified with regard to the principal claim, but unfounded with regard to the ancillary claim.
The plaintiff is entitled to claim damages from the defendants as joint and several debtors in the amount awarded pursuant to §§ 7 I, 18 II and III StVG in conjunction with § 115 I No. 1 VVG for the traffic accident in Cologne at issue.
When operating the car driven by the defendant and insured with the defendant, the plaintiff suffered damage in the form of damage to his own car, which is not attributable to force majeure. The liability assessment of the contributions to causation made by the vehicles involved to be carried out in accordance with §§ 17 I and II in conjunction with 18 I and III StVG leads to the defendant being solely liable for the accident in the present case, as it can be assumed that the accident is so serious that any joint liability of the plaintiff, in particular the operating risk posed by the plaintiff’s vehicle, is completely secondary.
It is undisputed that the defendant switched from the left-hand lane, which he was initially driving in, to the right-hand lane, which the plaintiff was driving in, whereby he moved in front of the plaintiff’s vehicle. According to the plaintiff’s statement of facts, the accident allegedly occurred because the defendant overlooked the plaintiff’s vehicle when initiating the lane change. Insofar as the defendants, on the other hand, claim that the defendant’s lane change had already been “completed for some time!” when the accident occurred, this objection is irrelevant. This is because the defendant’s factual submission in this regard regarding the alleged lack of a direct local and spatial connection with the lane change is unsubstantiated. Even if one were to assume that the collision between the two vehicles only occurred when the defendant’s vehicle was already completely in the right-hand lane, this does not mean that the lane change was “completed” in the legal sense. This is because in the event of a collision with the following vehicle immediately after the lane change, the appearance of a disregard of the duty of care according to § 7 StVO (see also: König in Hentschel/König/Dauer, Straßenverkehrrecht 42. Aufl., § 7 StVO Rn 17). In this case, it is the responsibility of the lane changer to demonstrate in detail that the lane change that has just taken place has no spatial connection with the accident. In the present case, however, the defendant does not specifically state to what extent this spatial and temporal connection should already have been completed with the lane change carried out by the defendant. It is merely claimed that the lane change had been completed “some time ago”. This is insufficient, because it is not stated how far the defendant had already traveled with the vehicle he was driving in the right lane before the collision occurred, nor how much time should have elapsed between the lane change and the collision. However, this would have been necessary in order to shake the appearance against the defendant of a disregard of the duty of care under § 7 StVO.
Such a presentation of the facts by the defendant would have been all the more necessary as, according to the recorded statements by the police officers involved, the defendant is said to have stated that a collision occurred when changing to the right lane and that, according to information from UB 01 (the defendant), he had not seen UB 02 (Mr. B). The investigation file also contains the following verbatim statement by the defendant:“I did not see him:” However, such a statement indicates that there was a collision with the person behind while changing lanes. This statement would make no sense if the accident had been a rear-end collision, as claimed by the defendant.
Contrary to the opinion of the defendant, no conclusions can be drawn from the damage pattern that the lane change had been “completed” in the legal sense, but rather that a rear-end collision had occurred. For the above-mentioned reasons, a violation of § 7 V StVO is also given due to the still existing spatial and temporal connection with the lane change if the vehicle changing lanes has just reached the targeted lane, i.e. is already completely in the lane at this time and the collision now occurs. The damage pattern would then correspond completely to the damage pattern of a rear-end collision. In both cases, the vehicle in front would already be in the right-hand lane.
Since it can be assumed from all of the above that a collision occurred either – according to the plaintiff’s submission – during the lane change, or in any case in a direct spatial and temporal connection with this lane change, the so-called prima facie evidence, i.e. the appearance of a culpable traffic violation, is in dispute against the defendant 1). prima facie evidence, i.e. the appearance of a culpable traffic violation, which could only be dispelled by demonstrating and providing full proof that an atypical sequence of events had occurred and that the damaging event could not have been avoided even with the greatest possible care. There is a presumption of fault on the part of the driver concerned according to the principles of prima facie evidence. This is because 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 that, based on life experience, this driver must be regarded as the guilty party. In such cases, it is justified to make a presumption of evidence (prima facie evidence) against him, which he must rebut. Such a dangerous offense is, among other things, a lane change within the meaning of § 7 V StVO. In cases of prima facie evidence, only the person against whom the prima facie evidence speaks can generally be held solely liable in the assessment required under § 17, 18 StVG.
This is also the case here. In particular, no contributory negligence on the part of the plaintiff has been presented by the defendant that would be suitable to at least partially shake the prima facie case against the defendant, which must also be attributed to the co-sued liability insurance company.
In the context of the weighing up of the mutual contributions to causation required in accordance with §§ 17, 18 StVG, it had to be assumed that the defendant was solely at fault, which is so serious due to the violation of a prima facie case (see above) that the operational risk emanating from the plaintiff’s vehicle, which is to be taken into account here alone, is completely secondary.
The defendants are 100% liable for the accident.
The plaintiff’s compensable damage amounts to the € 1,725.20 claimed. In the present action, the plaintiff is only claiming a lump sum for costs of € 25.00, which is deemed appropriate and necessary by way of a judicial estimate based on Section 287 ZPO. The amount of the other asserted damage items is also undisputed.
The claim for interest arises from Sections 286 II No. 3, 288 I BGB. It is undisputed that the defendant 2) seriously and definitively refused to settle the claim in a letter dated 12/09/2014 At this point in time, the defendants were therefore in default.
The procedural ancillary rulings are based on §§ 92 II No. 1; 100 IV; 709, 1 and 2 ZPO.
Rear-end collision caused by rolling back due to clutch defect – evaluation of evidence
In the legal dispute, the Cologne Local Court ruled in favour of the defendant at the hearing on 21/09/2015:
The defendants are ordered as joint and several debtors to pay the plaintiff EUR 1,347.00 plus interest at a rate of 5 percentage points above the respective base interest rate since February 19, 2015 and plus pre-trial attorney’s fees in the amount of EUR 201.71 plus interest at a rate of 5 percentage points above the respective base interest rate since lis pendens, i.e. since April 16, 2015.
The defendants shall bear the costs of the legal dispute jointly and severally.
The judgment is provisionally enforceable against security amounting to 110% of the amount to be enforced in each case.
Facts:
On November 25, 2014, a traffic accident occurred on the right-hand lane of the two lanes of the Z-Bridge ramp in Cologne involving the plaintiff as the owner and driver of the Dacia car and the defendant as the driver of a Saab car with liability insurance with the defendant, in which the witness P. was a passenger.
The vehicles involved in the accident were both on the right-hand lane of the slip road to the Z bridge, with the plaintiff’s vehicle behind the defendant’s vehicle. There was a collision between the two vehicles, although the exact circumstances of the accident are disputed between the parties.
The plaintiff’s vehicle was damaged as a result of the collision. The plaintiff obtained an expert opinion from the expert’s office K and quantified his damage pre-litigation with vehicle damage in the amount of 736.51 euros, a reduction in value of 200 euros, the costs for the expert opinion in the amount of 358.49 euros and – initially – a lump sum for costs in the amount of 25.56 euros, thus claiming a total damage in the amount of 1,347.56 euros pre-litigation.
The plaintiff claims that, due to traffic after work and a permanent roadworks site, the parties involved in the accident were one behind the other in a traffic jam. The distance between the vehicles was initially 2.50 m. Suddenly, the defendant’s Saab rolled back from a standstill. He, the plaintiff, had not been able to avoid the traffic jam or reverse. As a result, the Saab rolled backwards and hit the front of the plaintiff’s vehicle.
After the accident, the defendant stated that she had had a problem with the clutch. The brakes had also failed. In fact, the Saab was no longer roadworthy after the accident. The accident had been recorded by the police. The police had ordered a towing service for the Saab, the latter is undisputed.
The plaintiff also claims that the defendant admitted to police officer H, who was recording the accident, that the clutch was defective and that her vehicle had rolled backwards. For this reason, she had also been warned by witness H.
With regard to the expert fee claimed, the plaintiff submits a declaration of reassignment from the motor vehicle expert P dated 23. -Expert P dated 23.06.2015 as an attachment.
During his personal hearing at the hearing on 21/09/2015, the plaintiff also stated that on the day of the accident in question, everyone had initially stood still for about 1-2 minutes before the collision. He himself generally kept a relatively large distance from the vehicle in front, and on that day he also kept a good 2.50 m distance from the defendant. At that time, he had not known before the collision that the defendant had been “fighting”, she had then rolled back. He initially had the feeling that she would make it, but then saw that she kept rolling back and ultimately “rolled onto” him. In the end, her speed increased more and more, probably because they were both standing on the slope and the downward force was acting on them. She had said to him at the time that the clutch did not work and that the brakes were also not functional. For this reason, he and the defendant, as well as the witness P., who was present as a passenger in the defendant’s vehicle, had not been able to bring the vehicle to a halt on their own; it had had to be moved back to the side of the road with the help of the police officer, witness H., who had joined them later.
Witness H first looked at the whole thing when he arrived and then realized what was going on when he moved the vehicle to the side. He then asked the defendant whether she wanted to admit that she was “to blame for the incident”, to which she replied “yes”. Witness P then said that he, the plaintiff, could be glad that she had admitted it. Before admitting her behavior, the defendant only said that she did not have the feeling that the car had rolled back. She had said that she had had to fight but had not had the feeling that the car had rolled back. She said that although she had to fight, she did not have the feeling that the car was actually rolling backwards.
The final position of the vehicles was such that the vehicles were together when the police arrived. The defendant could no longer get the trunk open.
After the plaintiff originally asserted a principal claim in the amount of EUR 1,347.56 plus interest as well as pre-trial attorney’s fees plus interest, he withdrew the action with regard to the principal claim, there with regard to the lump sum for costs, in the amount of EUR 0.56, in a statement dated June 3, 2015, now only asserts a lump sum for costs in the amount of EUR 25 and now requests that the defendants be ordered as joint and several debtors to pay him EUR 1.347.00 plus interest in the amount of 5 percentage points above the respective base interest rate since February 19, 2015 as well as pre-trial legal fees in the amount of EUR 201.71 plus interest in the amount of 5 percentage points above the respective base interest rate since the lis pendens.
The defendants request that the action be dismissed.
They claim that the defendant did not roll back with the vehicle it was driving. In fact, a defect had already occurred in the defendant’s vehicle before the collision in that the clutch no longer worked. The defendant had therefore slowed down her vehicle, although there was stop-and-go traffic or a traffic jam at the time of the accident anyway. Even before the defendant had come to a complete stop, or in any case practically immediately afterwards, the plaintiff’s vehicle had hit the vehicle from behind. It was not the case that the defendant had stopped unexpectedly in the middle of moving traffic, but that it would have had to stop anyway due to the high traffic density.
After the accident, the defendant’s vehicle was no longer roadworthy and had to be towed away, although this had nothing to do with the damage caused by the accident. Conversely, however, the accident had nothing to do with the damage to the clutch, but the plaintiff had hit the defendant’s vehicle because he had been too inattentive and/or too fast and/or had kept too short a distance from the defendant’s vehicle.
With regard to the expert costs, it should be objected that the plaintiff does not have standing to sue because he has assigned the claim for reimbursement of the expert costs to which he is allegedly entitled to the expert P as shown in Annex B1 submitted by you, the defendants, to the file.
During her personal hearing at the hearing on 21 September 2015, the defendant also stated that the plaintiff and she had been standing in stop-and-go traffic when her clutch suddenly got stuck. When the vehicles in front of her drove off and she also wanted to drive off, nothing worked.
She stood up and there was a bang. She only noticed a slight glance. She had not rolled back. The brakes had also still worked. When questioned about what had happened, the defendant stated that she had only noticed that the person behind her must have hit the car. In response to page 2 of the defendant’s statement of defense, the defendant stated at the hearing on September 21, 2015 that this was not correct, that it was rather as she had described it at the hearing: She had already been stationary, had wanted to drive off and the clutch had not worked. At the time of the collision, she had neither rolled forwards nor backwards, she had been stationary.
The plaintiff then got out of the car and said he thought she had probably reversed. She then said that she could not say exactly at the moment, she only knew that she had stepped on the brakes and that the clutch had not worked. She said that she later said the same thing to the police. She did not admit that she was at fault for the accident, she only said that she could not say exactly how she had reacted, by which she meant what had happened.
The court took evidence by hearing the witnesses P and J. H. in accordance with the evidentiary rulings of 19/06/2015 and 21/09/2015. Reference is made to the minutes of the hearing on 21/09/2015 for the results of the taking of evidence.
In addition, the plaintiff and the defendant were heard informally at this hearing.
Reasons for the decision:
The complaint is fully justified.
The plaintiff is entitled to claim damages from the defendants as joint and several debtors in the amount awarded pursuant to §§ 7 I, 18 I and III StVG in conjunction with § 225 I No. 1 VVG on the basis of the traffic accident in dispute.
While operating the car driven by defendant 2 and insured with defendant 1, the plaintiff suffered damage to his own car which was not attributable to force majeure. According to §§17 II i.V.m. I in conjunction with § 18 I and III of the German Road Traffic Act (StVG) leads in the present case to the sole liability of the defendant for the accident, since the court is convinced, based on the results of the taking of evidence and the hearings of the plaintiff and the defendant 2, that the accident was caused solely by a fault, that the accident is solely attributable to misconduct on the part of the second defendant or a defect in the defendant’s vehicle, which was the sole cause of the accident, with the result that the operating risk posed by the plaintiff’s vehicle is completely secondary.
After hearing the parties and questioning witness P, the court considers it proven that defendant 2 rolled back with the car she was driving immediately before the collision of the vehicles involved in the accident, either due to a defect in the clutch of her vehicle or due to a failure to brake in time, which resulted in the collision with the plaintiff’s vehicle and damage to the latter.
The court bases its conviction of the course of the accident on the plaintiff’s credible accounts. In particular, he gave a plausible and credible account of the course of the accident and the circumstances surrounding it during his personal hearing on September 21, 2015. The plaintiff was able to remember all relevant details immediately before the accident and also during the collision as well as afterwards and presented these in a comprehensible and credible manner. His presentation of the facts gave the court the impression that the plaintiff was giving a concrete account of the circumstances actually perceived based on his actual recollection. His account of the events appeared to be free of incriminating tendencies. The court did not fail to recognize that the plaintiff, as the party involved in the accident, owner and injured party of one of the vehicles involved in the accident, had a vested interest in a favourable outcome of the proceedings for him. Nevertheless, his manner of presentation and his appearance in court gave the impression that his factual presentation corresponded to the actual course of events. The events described by him as well as the sequence of events are consistent in themselves and result in a not only possible but also plausible course of the accident.
Defendant 2, on the other hand, was not in a position to provide concrete information regarding the essential circumstances of the accident:
She repeatedly stated with certainty that she had not rolled back and had also slammed on the brakes. However, when questioned about what had allegedly been said between the parties involved and to the police officer, witness H, after the accident, she stated that the plaintiff had said to her immediately after the accident that she had probably reversed. She replied that she could not say at the moment, she only knew that she had stepped on the brakes and that the clutch had not worked. She said that she later said the same thing to the police officer recording the accident. However, this answer already contains an imponderable to the effect that although defendant 2 claims to have stepped on the brake, she cannot say whether she also rolled back. In this respect, taking into account this statement by Defendant 2, it is quite conceivable that Defendant 2 either did not step on the brake in time or continuously or that she nevertheless rolled back, for example because the brake was also not functional. There is no concrete statement by Defendant 2 that she actually did not roll back. Rather, Defendant 2 expressly stated in the hearing on September 21, 2015 that she had said immediately after the accident that she “could not say exactly at the moment” whether she had rolled backwards. This is a vague and evasive answer, because if Defendant 2 had actually stepped on the brakes and the car had not rolled backwards, Defendant 2 should also be able to make a definitive statement on this. When questioned at the hearing on September 21, 2015 as to whether she had later admitted to the police officer, witness H, that she was at fault for the accident, as claimed by the plaintiff, defendant 2 replied that she had not admitted this, she had only said that she could not say exactly how she had reacted, by which she meant what had happened. This means that defendant 2 also told witness H that she could not say exactly what had happened. The defendant was therefore not sure whether she had rolled back or not, either immediately after the accident to the plaintiff or later when the police officer, witness H, arrived.
Defendant 2’s statements regarding the question of whether she had actually rolled back or not are vague and indeterminate in this respect. Although Defendant 2 now states with certainty at trial that she was standing at the time of the collision, she has admitted at the same time that she was unable to answer with this certainty immediately after the accident, that after the collision she did not know how she had reacted and what had happened. However, if defendant 2 was unable to say immediately after the collision whether she had actually at least brought her vehicle to a standstill before the collision, it is not clear where she claims to have obtained this certainty later in the hearing or during the ongoing proceedings. Such a submission is not comprehensible and not plausible.
Defendant 2, on the other hand, confirmed in the context of her factual submission that the plaintiff had always stated from the outset immediately after the collision that she had rolled backwards. Accordingly, the plaintiff’s submission behavior has always remained constant, even according to the information provided by defendant 2.
In addition, Defendant 2 also had to concede in the hearing on September 21, 2015 that the factual submission of the defendant on page 2 of the statement of defense was not correct: It was not the case that she had slowed down her rolling vehicle after noticing a defect in the clutch and that the rear-end collision then occurred before she had come to a complete stop, or practically immediately afterwards. Rather, it was correct, as she had described it in the hearing on 21.09.2015, that she had already stopped… then wanted to drive off and noticed that the clutch was not working. In this respect, defendant 2 has corrected the submission from the statement of defense, which contained clear tendencies of favoritism towards the defendant. In doing so, it also confirmed the plaintiff’s submission that both vehicles were initially behind each other due to the stop-and-go traffic before the collision occurred – due to disputed circumstances.
Accordingly, the court is not convinced of the accuracy of the testimony of witness P. Contrary to the factual submissions of the plaintiff and defendant 2 at the hearing on September 21, 2015, he stated that the defendant was in the process of stopping or was still rolling forward very slowly when the plaintiff’s vehicle collided. Defendant 2 had previously stated that the clutch was broken, to which he replied: “Stop”. At this point in time, the vehicle was still moving. This statement contradicts both the information provided by the plaintiff and the information provided by defendant 2, according to which the defendant’s vehicle was initially stationary and then, when defendant 2 was about to drive off again (after the vehicle had come to a standstill), the accident at issue is said to have occurred. In this respect, the statement of witness P cannot be reconciled with the factual submission of defendant 2. It only agrees with regard to the alleged impact from behind by the plaintiff.
However, the testimony of witness P was also characterized by contradictions:
Witness P initially stated that he thought that defendant 2 was still driving at that moment when she noticed that the clutch was broken. Then the impact came from behind. While she had stopped or was still rolling forward very slowly, the impact had then come from behind. In the further course of his interrogation, however, he stated under questioning that when he had said that the defendant 2 should stop, the vehicle was still moving. However, he was still not quite sure whether there had then been a “rumble”, as something was still rolling or had already stopped. Finally, when questioned, the witness asked whether it was possible that the vehicles had both stopped first and then defendant 2 could no longer drive off due to the broken clutch.
The entire testimony of witness P. suggests the suspicion that this witness no longer has a concrete memory of the exact course of the accident, in particular of the driving behavior of the defendant (2). At the very least, his statement showed considerable uncertainties regarding the exact course of the accident. The fact that, as part of his coherent description, even before the questioning, he stated on his own initiative that the vehicle had rolled when the defendant 2) had said that the clutch was broken, also raises the question of whether, according to the plaintiff’s statement, this rolling was not a reverse roll.
This question is all the more pressing as the witness also had to admit to gaps in his memory and uncertainties during his questioning with regard to the other events surrounding the collision. When asked what had been said after the collision, the witness first had to think and then stated that nothing had been said. He then corrected himself again and clarified that some things had been said, but that he no longer knew what. This testimony also makes it clear that the witness P. either no longer remembers the events reliably or deliberately refers to gaps in his memory.
When assessing the testimony of the witness P., it should not be disregarded that the witness is not an independent witness, but the owner and keeper of the defendant’s vehicle and also the co-driver of this vehicle at the time of the accident. Like the plaintiff and the defendant (2.), the witness P. is therefore not completely uninvolved in the proceedings; on the contrary, he also has a vested interest in the outcome of these proceedings.
The testimony of the witness PK H. was unproductive. In particular, he was no longer able to remember the statements made by the parties involved after the accident and in this respect only drew conclusions. However, the accident report he handed out (Annex K1) does not provide a reliable basis for drawing conclusions, as the damage to the car in particular was incorrectly outlined here or was already incorrectly assigned to the named parties, which raises questions about the correct recording of the accident. In this respect, the court is unable to base any reliable information on the statements made by witness H. in conjunction with the accident sketch (Annex K1).
Based on the above statements, the plaintiff’s factual submission alone is plausible, consistent, sufficiently concrete and comprehensible. The statements of the defendant under 2.) as well as the testimony of the witness P. are unbelievable.
In view of the above, the court fully accepts the plaintiff’s factual submission.
In the context of the weighing up of the contributions to causation made by the vehicles involved in accordance with §§ 17 II in conjunction with I in conjunction with § 18 I and III StVG, it had to be assumed that the defendant was solely liable for the accident. This is because the defendant’s vehicle rolled from a standstill against the plaintiff’s vehicle behind it, whether due to a defect which meant that the defendant (2) was no longer able to bring the vehicle to a halt in time or due to inattention on the part of the defendant (2) in connection with this defect. The plaintiff, as he has credibly demonstrated, had no possibility in this situation to react to the defendant’s vehicle rolling back, taking into account § 1 II StVO; in particular, he could not roll back due to the stop-and-go traffic and the traffic behind him or the vehicles behind him, and neither has anything been presented nor is it otherwise apparent that there was any possibility of evasion; on the contrary, this is credibly denied by the plaintiff. However, it is not the plaintiff who is responsible for a defect in the defendant’s vehicle, but the defendant alone; in this respect, an operational risk emanating from the defendant’s vehicle was realized here, which was considerably higher in relation to the normal operational risk of the intact plaintiff’s vehicle and was the sole adequate causal factor for the collision. In view of the special circumstances, the normal operating risk posed by the plaintiff’s vehicle completely outweighs the increased operating risk of the defective defendant’s vehicle.
The defendants are jointly and severally liable to the plaintiff for 100% of the costs of the accident.
The plaintiff’s compensable damage amounts to the claimed amount of EUR 1,347.00. In particular, the plaintiff is also entitled to assert the expert costs against the defendants as joint and several debtors. In this respect, he has submitted a declaration of reassignment from the expert’s office dated 23/06/2015 as Annex K6 to the file.
The interest claim is based on §§ 286 I, 288 I BGB.
Upon expiry of the payment deadline set in the letter dated 09.02.2015 on 18.02.2015, the defendants fell into arrears on 19.02.2015.
The claim for payment of pre-trial legal costs also follows from §§ 7 I, 18I StVG in conjunction with § 115 I No. 1 VVG. § 115 I No. 1 VVG.
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