Passenger’s Duty of Care when (Entering and) Exiting the Car
In its decision of 08.10.2020 – Case No. 14 O 309/19 – the Cologne Regional Court ruled on a compensation claim regarding the passenger’s duty of care when (entering and) exiting.
Facts of the Case (Accident)
The plaintiffs are claiming damages from an accident that occurred on 08.09.2019. Plaintiff 2 was driving the taxi on 08.09.2019, in which the defendant was a passenger. At around 11:53 AM, Plaintiff 2 stopped the taxi in the taxi parking area in front of the main train station to let the defendant exit. In the direction of travel, there was a taxi stand on the right side where taxis were waiting to pick up new passengers and move forward accordingly. To the left of this – in the middle – was the driving lane, and on the left side in the direction of travel was a police lane where police vehicles can stop. The police lane was clear at the time of the accident in the area where Plaintiff 2 stopped the taxi. Plaintiff 2 stopped the taxi on the left side, so that it was half on the police lane and half on the driving lane.
The defendant, who had been sitting in the rear right seat, opened the rear right door of the vehicle to get out. This led to a collision with the taxi of the third-party defendant approaching from behind, which wanted to pass the taxi driven by Plaintiff 2 on the driving lane between the taxi stand and the police lane, and drove into the rear right side door opened by the defendant. For the accident location and also for the final position of the taxis involved, reference is made to Exhibits K9 (page 192 of the file) and K10 (page 133 of the file) as well as the accident sketch of the defendant (Exhibit B2, page 58 of the file).
One of the taxis sustained vehicle damage amounting to 5,372.86 EUR. The expert commissioned by the plaintiffs to assess the damage determined a depreciation of 620.00 EUR and charged the plaintiffs 735.75 EUR for his report.
The plaintiffs demanded that the defendant compensate for the damages claimed in the lawsuit by lawyer’s letter dated 18.09.2019 (Exhibit K4, p. 36 of the file) and by setting a deadline of 15.10.2019 with a further lawyer’s letter dated 08.10.2019 (Exhibit K5, p. 38 of the file).
The plaintiffs claim that they are actively legitimized as the owners of the taxi. They present the vehicle registration document (Exhibit K6, p. 93 of the file) as well as the financing confirmation from Mercedes-Benz (Exhibit K7, p. 95 of the file) and the contractual terms of the financing agreement with MB Bank (Exhibit K8, p. 97 of the file) and refer to the fact that, according to No. III of the loan conditions, they are obliged to assert all vehicle-related claims from a damage event in their own name and at their own expense. The plaintiffs further claim that Plaintiff 2 warned the defendant to be careful when opening the door as he stopped.
The defendant claims that she carefully opened the rear door a crack to get out. At that moment, the other taxi came driving up and passed the stationary plaintiff’s vehicle without maintaining an adequate safety distance. The defendant did not see another vehicle that wanted to pass the plaintiff’s vehicle. The accident was caused by the insufficient safety distance of the passing taxi. If the other taxi had maintained a sufficient safety distance from the stationary plaintiff’s vehicle, the damage event in question would not have occurred. Furthermore, Plaintiff 2 had breached his duty of care and had not warned the defendant of any potential dangers when exiting and had not assisted her.
The active legitimation of the plaintiffs is disputed, as it is not clear who was actually the owner of the vehicle in question.
The court has informally heard Plaintiff 2 and the defendant. For the result of the hearing, reference is made to the minutes of the public session of 27.08.2020 (page 134 et seq. of the files). For further details of the facts and dispute, reference is made to the submitted content of the briefs exchanged by the parties and the documents and papers submitted by the parties.
Decision (Compensation)
The lawsuit is admissible and largely well-founded.
1. The plaintiffs are entitled to a claim against the defendant according to Section 823 Paragraph 2 of the German Civil Code (BGB) in conjunction with Section 14 of the German Road Traffic Regulations (StVO) amounting to 6,753.61 EUR.
a) First, the plaintiffs have active legal standing. This is evident from the documents they have submitted. According to the financing conditions by MB Bank and their Section III, the borrower is obligated to assert all vehicle-related claims from a damage event in their own name and at their own expense. Contrary to the defendant’s opinion, the question of ownership is therefore irrelevant. Even if the financing bank should have acquired the security ownership, according to the loan conditions, the plaintiff’s side was obligated and entitled to assert the present damages in their own name. This contractual obligation and entitlement would also not be affected by any further transfer of security ownership to third parties by the financing bank, although there are no indications of this.
b) Section 14 of the StVO is a protective law in the sense of Section 823 Paragraph 2 of the BGB (compare Burmann/Heß/Hühnermann/Jahnke/Heß, 26th edition 2020 marginal no. 1, StVO Section 14 marginal no. 1 with further references).
c) The defendant has culpably violated her duty from Section 14 Paragraph 1 of the StVO . According to Section 14 Paragraph 1 of the StVO , anyone who enters or exits must behave in such a way that endangering other road users is excluded. This duty of care applies for the entire duration of an entering or exiting process, i.e., for all processes that are in immediate temporal and spatial connection with it, whereby the process of entering is only completed with the closing of the vehicle door, and the process of exiting is only completed with the closing of the vehicle door and leaving the roadway (cf. Cologne Higher Regional Court, judgment of November 7, 2019 – 1-15 U 113/19 -, marginal no. 13, juris, with further references). In this context, prima facie evidence speaks against the person who has entered or exited a vehicle if the traffic accident occurred in immediate spatial and temporal connection with the entering or exiting process in a – as in the present case – recognizably dangerous exiting situation, not to warn with caution; he is generally not legally obliged to give such a warning; rather, the defendant is primarily solely responsible for her behavior in road traffic (compare Cologne Higher Regional Court, judgment of November 7 – 1-15 U 113/19 -, marginal no. 15, juris).
d) There is also no special situation that could exceptionally justify contributory negligence according to Section 254 Paragraph 1 of the BGB due to the behavior of the plaintiff 2). This does not result from the fact that plaintiff 2) had stopped half on the police lane and half on the driving lane next to the taxi stand, thus forcing the defendant to exit on the right side. Because according to both the account of plaintiff 2) and the account of the defendant in their personal hearing, it was the case that at least in the back left another passenger was sitting, so that a request from plaintiff 2) for the defendant to exit on the left side is ruled out. Furthermore, both parties have consistently stated that the defendant paid the fare for the taxi ride to plaintiff 2) and then, when she had received the change from him, exited without any time delay. Thus, there was no possibility for plaintiff 2) to react. The fact that he did not ask her to wait during the payment process or when handing over the change in order to be able to open the door for her is not part of his obligation (compare this assessment OLG Cologne as cited above). Finally, nothing different results from the fact that according to the – disputed – submission of the defendant, the other taxi of the third-party intervener had driven at excessive speed and thereby (co-)caused the accident. In relation to the plaintiffs, any fault of the third-party interveners or third-party defendants not connected to the plaintiffs is irrelevant.
e) The amount of damage is undisputed and is to be reimbursed with the vehicle damage amounting to 5,372.86 EUR as well as the depreciation of the vehicle of 620.00 EUR and the costs for the expert report commissioned by the plaintiffs amounting to 735.75 EUR. In addition, there is the flat-rate cost of 25.00 EUR. Why the flat-rate accident cost should exceed the amount of 25.00 EUR by 0.56 EUR is neither stated nor apparent, so the claim had to be dismissed in this respect.
(compare Burmann/Heß/Hühnermann/Jahnke/Heß, 26th edition 2020, StVO § 14 Rn. 2a with further evidence).
Since the accident occurred in direct connection with the opening of the vehicle door by the defendant, prima facie evidence suggests that the defendant violated her duty under § 14 Abs. 1 StVO This presumption has not been rebutted by the defendant. Even according to her own account, the defendant did not behave in such a way that endangering other road users was ruled out. Rather, in the course of her personal hearing, she herself stated that she had not seen the other taxi at all, but only noticed it when the accident occurred. She had also not made a shoulder check to the right rear before opening the door because she had not expected that another vehicle could have passed. However, she should have done this in view of the lane between the taxi stand and the police patrol, onto which she wanted to exit to the right, and should therefore have first made sure that no other taxi was approaching from behind before opening the door. Then she would have also recognized the other taxi approaching from behind. Contrary to the defendant’s submission, the opening of the door was also the cause of the accident, as can be easily seen from the photograph of the final position of the vehicles after the accident (Annex K9). With the door closed on the plaintiffs’ vehicle, the taxi visible on the left side could have easily passed the plaintiffs’ taxi. From the location and the circumstances there, it is also evident that the defendant could have recognized the approaching taxi if she had looked over her right shoulder. In particular, the photograph from Annex K9 also shows unrestricted visibility conditions at the time of the accident. This establishes at least a negligent breach of duty of care by the defendant, not least because it was clearly recognizable to the defendant that she had to open the door to the right in the direction of the traffic lane to get out.
A different assessment does not follow from the behavior of plaintiff 2). In particular, this does not result from the defendant’s submission that he did not warn her to be careful when getting out or that he did not open the door for her. This is because a taxi driver does not have to
2. The defendant must also reimburse the plaintiffs for the necessary pre-trial costs of legal prosecution in the amount of 546.50 EUR, as claimed by the plaintiffs.
The ancillary decisions follow from §§ 91 Abs. 1, 92 Abs. 2 Nr. 1 , 709 ZPO.
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