Motor vehicle. Accident involving a dog; strict liability of the animal owner in the event of a dog running across the road
In the legal dispute between Mr. I. , plaintiff, against Ms S, defendant, the Cologne Local Court ruled in favour of the plaintiff at the hearing on 20/08/2014:
The defendant is ordered to pay the plaintiff € 1195.05 plus interest at a rate of 5 percentage points above the prime rate since March 14, 2013 and € 155.30 (pre-trial legal fees) plus interest at a rate of 5 percentage points above the prime rate since May 23, 2013.
The remainder of the action is dismissed.
The plaintiff shall bear 35% of the court costs and the defendant 65%.
The plaintiff and the defendant shall each bear 20% of the extrajudicial costs and the defendant 80%.
The judgment is provisionally enforceable. Both parties may avert enforcement by providing security in the amount of 110% of the amount to be enforced, unless the other party provides security in the same amount.
Facts:
The plaintiff is the owner of the VW vehicle. The defendant was the owner of a black dog, shoulder height over 45 cm. On January 11, 2013 at around 10:10 p.m., the plaintiff was driving out of town in the left-hand lane of B. Street in K.. The defendant’s dog ran across the road from the left and collided with the front left of the plaintiff’s vehicle. The plaintiff tried to avoid the collision by steering to the right. However, he was no longer able to prevent the accident.
The plaintiff claimed that his vehicle had been damaged in the accident according to the Romano report. He estimated the total damage he suffered as a result of the accident at € 1865.61 (replacement value according to the Romano report € 1550, less residual value € 300, registration/deregistration costs, conversion costs € 120, expert costs € 470.05, flat-rate costs € 25.56), whereby only the replacement value and registration/deregistration costs, conversion costs are in dispute between the parties.
The plaintiff initially requested that the defendant be ordered to pay him € 1865.61 plus interest at a rate of 5 percentage points above the prime rate since 14.03.2013 and to pay € 229.55 (pre-trial legal fees) plus interest at a rate of 5 percentage points above the prime rate since 23.05.2013. In a written statement dated 11.03.2014, received by the court on 12.03.2014, the plaintiff withdrew the claim in the main action in the amount of € 670 with regard to the procedural legal fees in the amount of € 74.25 before the hearing.
He now requests that the defendant be ordered to pay him € 1195.61 plus interest at a rate of 5 percentage points above the prime rate since March 14, 2013 and that the defendant be ordered to pay him € 155.30 (pre-litigation legal fees) plus interest at a rate of 5 percentage points above the prime rate since May 23, 2013.
The defendant requested that the action be dismissed.
She claims that the dog suddenly broke free from the lead. She did not have to reckon with this, as the dog had passed several dog tests. The accident was also not an unavoidable event for the plaintiff. If he had been driving in the far left lane, he would have seen the defendant’s dog and been able to brake. In fact, however, he was only driving to the right. However, an evasive maneuver to the right was not suitable to prevent the collision. She denies that the damage to the plaintiff’s vehicle was caused by the accident. The expert commissioned by the plaintiff only inspected the vehicle on 13.02.2013, i.e. one month after the accident. Furthermore, it argues that the replacement value was set too high at € 1550.
The court took evidence by obtaining an expert opinion in accordance with the order to take evidence of 23.07.2013. Reference is made to the expert opinion of the expert H. of 04.11.2013 with regard to the results of the taking of evidence.
Reasons for the decision:
(Motor vehicle accident with dog – animal owner liability)
The complaint is well-founded
The plaintiff is entitled to payment of an amount of 1195.05 %.
The plaintiff’s claim arises from § 833 BGB.
The defendant is liable for the damage suffered by the plaintiff in the accident from the point of view of animal owner liability. It is undisputed that the defendant was the owner of the dog. It is irrelevant whether the dog had previously passed a dog test and whether the defendant had to expect that the dog would come off the leash. Liability according to § 833 BGB is a strict liability. Fault on the part of the owner is not required.
In the present case, the plaintiff is not jointly liable, neither in terms of contributory negligence nor in terms of the operating risk of the plaintiff’s vehicle. There are no indications of contributory negligence. In particular, the plaintiff did not have to expect that a dog would run across the road in the dark in the evening.
However, the plaintiff is also not jointly liable under the aspect of the operating risk of the plaintiff’s car. It is irrelevant whether the accident in question was unavoidable for the plaintiff within the meaning of Section 17 (2) StVG; in any case, after weighing up the contributory causes, the operating risk of the plaintiff’s vehicle must be completely neglected here. This is because the danger posed in the evening by a dog suddenly running across the road in the dark is so serious that the operating risk of the plaintiff’s vehicle must take second place.
Following the taking of evidence, it is also clear that the damages claimed by the plaintiff are based on the accident in question. It is true that the inspection of the plaintiff’s vehicle only took place approximately one month after the accident. However, the expert opinion of the expert Hülser shows that the damage to the plaintiff’s vehicle is technically plausibly attributable to the accident in question. It is true that the expert also stated that more than the possibility of causing the damage cannot be shown because the contact with the dog did not lead to any characteristic traces of this. However, since it is undisputed that the accident occurred and it is also undisputed that the dog collided with the vehicle on the left, the damage is also located on the left side of the vehicle and in any case this damage can plausibly be attributed to a collision with a dog, the court is convinced that the damage to the plaintiff’s vehicle was caused by the accident in question.
The defendant therefore had to compensate the plaintiff for the damage he suffered in the accident. These amount to a total of € 1195.05. The material damage to the plaintiff’s vehicle amounted to € 700 (replacement value € 100 less residual value € 300). Insofar as the plaintiff initially assumed a replacement value of € 1550, the Hülser expert opinion shows that this is only € 1000. Furthermore, the plaintiff is entitled to the expert costs of € 470.05 and a lump sum of € 25. This results in the amount of € 1995.05. Insofar as the plaintiff claims a lump sum for costs of more than € 25, the claim had to be dismissed. According to the established case law of the competent court, the lump sum for costs amounts to €25.
The plaintiff is also entitled to reimbursement of the pre-litigation legal fees (Section 249 BGB) as legal costs, based on a value in dispute of € 1995.05. This results in an amount of € 155.30.
The claim for interest arises from default ( §§ 286, 288 BGB ) or from §§ 291, 288 BGB.
The procedural ancillary rulings are based on Sections 269 (3), 91 (1), 708 No. 11, 711 ZPO.
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