Accident involving a handbike – Municipality’s duty to ensure road safety – Riding a handbike over a barrier post that has been moved
In its ruling of October 26, 2012 – case no. 1 O 92/10, the Regional Court of Heidelberg decided that the failure to reinstall a relocated barrier post constitutes a breach of the responsible municipality’s duty to ensure road safety. If this barrier post is run over by a handbike and the handbike rider suffers damage as a result, the municipality responsible for road safety is liable. However, the handbiker is partly to blame.
Tenor
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- The defendant is ordered to pay the plaintiff € 883.43 plus interest in the amount of 5 percentage points above the prime rate from € 850.25 since December 18, 2009 and from € 33.23 since October 14, 2011.
- The defendant is further ordered to pay the plaintiff compensation for pain and suffering in the amount of € 1,800 plus interest thereon at a rate of 5 percentage points above the prime rate since October 2, 2009.
- The defendant is further ordered to pay the plaintiff pre-trial legal fees of € 229.55 plus interest of 5 percentage points above the prime rate since October 2, 2009.
- It is established that the defendant is obliged to compensate the plaintiff for all future non-material damages arising from the accident on June 10, 2009, taking into account a contributory negligence rate of 50%, insofar as the claims are transferred to social insurance carriers or other third parties.
- The remainder of the action is dismissed.
- The costs of the legal dispute are set off against each other.
The judgment is provisionally enforceable for the plaintiff against provision of security amounting to 110% of the amount to be enforced in each case. The judgment is provisionally enforceable for the defendant without the provision of security. The plaintiff may avert enforcement by providing security in the amount of 110% of the contract enforceable on the basis of the judgment, unless the defendant first provides security in the amount of 110% of the amount to be enforced in each case
Facts of the case
The plaintiff has been paraplegic since 1980 and is dependent on a wheelchair. On June 10, 2009, he rode his handbike along the extension of L. Street in W., which is separated from L. Street by two barrier posts. His handbike is a recumbent bike powered by a hand crank, in which the plaintiff has a head height of 55 to 60 cm. The hand crank is located just below the rider’s eye level.
The two barrier posts blocking off L. Street are 80 cm high and 7 cm wide and are fitted with an approx. 8 cm high gray metal ground sleeve at the transition to the road. On 10.06.2009, the left-hand barrier post from the viewpoint of the extension of L. Street had been moved. The defendant had driven through it with Mr. B.. After driving through, she did not put the barrier post back up. The plaintiff rode his handbike against the metal ground sleeve and suffered a bilateral fracture of the pubic bone, a bilateral fracture of the ischium, a right sacral fracture, a fracture of the spinous process of the fifth lumbar vertebra and a pelvic ring fracture. The injuries were treated conservatively. The plaintiff was unable to work for 6 weeks.
The plaintiff’s handbike was damaged in the accident. He had to pay € 1,675.50 for the repair. In addition, he claimed a lump-sum expense allowance of €25.
The plaintiff is of the opinion that the defendant breached its duty to ensure road safety because the relocated barrier post was not recognizable even from a distance. The gray of the metal ground sleeve did not stand out from the gray of the asphalt. The defendant was obliged to mark it in color or with cat’s eyes.
The plaintiff claims that his injuries have not fully healed. As a result of the accident, he suffered persistent post-traumatic symptoms in the left hip and ischial region as well as in the area of the spine. In the area of the pelvis, a complete tilting can be observed due to the accident. The permanent damage that remained was pain on exertion. Furthermore, erectile dysfunction had occurred as a result of the accident and he was 100% unable to work as a result of the accident. The plaintiff had to pay € 66.45 for a medical opinion in this connection. He is of the opinion that compensation for pain and suffering in the amount of € 3,500.00 is appropriate for all of his injuries.
The plaintiff requests,
- order the defendant to pay him reasonable compensation for pain and suffering plus 5% interest above the prime rate since October 2, 2009.
- declare that the defendant is obliged to pay the plaintiff all future non-material damages arising from the accident on 10.06.2009, insofar as the claims are not transferred to social insurance contributions or other third parties.
- order the defendant to pay the plaintiff € 1,766.95 plus 5 % interest above the prime rate since the pendency of the action.
- order the defendant to pay the plaintiff € 402.82 plus 5 % interest above the prime rate since October 2, 2009.
The defendant requested that the action be dismissed.
The defendant denies the accident with ignorance. It claims that the knocked down barrier post was so easily recognizable that the defendant had no duty to ensure road safety. The party with a duty to ensure road safety only has to warn of dangers that traffic cannot anticipate or cannot anticipate in time. In this case, however, traffic was able to adjust to the fallen post, which extended 8 cm above the ground. In addition, a handbike rider lies relatively flat on his vehicle and therefore has to adjust his speed so that he can recognize obstacles in good time. In any case, the plaintiff was grossly contributory negligent.
The defendant disputes the plaintiff’s post-traumatic symptoms, the accident-related nature of erectile dysfunction and the 100% incapacity to work. It points out that, according to its investigations, the plaintiff took part in handbike races over a distance of up to 44 km in 2010, 2011 and 2012 and that this may have aggravated, if not caused, his complaints.
For details of the parties’ submissions, reference is made to the content of the exchanged written submissions and annexes.
The court took evidence by obtaining a technical and a medical expert opinion. Reference is made to the (obtained) expert reports (….) for the results of the taking of evidence.
Reasons for the decision:
(Accident and traffic safety obligation)
Reasons for the decision:The admissible action is partially justified.
I. The plaintiff has a claim against the defendant for payment of a total of € 2,683.48 under §§ 823 para. 1, 253 para. 2, 839 para. 1 BGB in conjunction with Art. 34 GG.
1. the defendant, who was indisputably obliged to ensure the safety of traffic on the L. road as a public road, breached its duty to ensure the safety of traffic. According to established case law, the person who opens a road is obliged to take those precautions that are necessary and reasonable in order to prevent damage to third parties as far as possible (BGH, NJW 2007, 762 mwN). What is required is what a prudent and reasonable, sensible and cautious member of the relevant circle of traffic may consider necessary and sufficient to protect other persons from damage (BGH, NJW 2006, 2326). As a rule, however, the third party is only to be protected from such dangers that he himself cannot recognize and avoid or control in good time, based on the specific situation presented to him, when applying the care to be expected of him (BGH, NJW 2010, 1967, 1968; NJW 2004, 1449, 1551).
According to these standards, the defendant breached its duty to ensure road safety in this case by failing to put one of two barrier posts back in place on 10.06.2009 after authorized persons had passed through and also by failing to point out the horizontal post. In the opinion of the court, the horizontal post represented a danger that the average road user could not easily recognize in good time if they exercised the care to be expected of them. Firstly, the approx. 8 cm high metal ground sleeve hardly stands out in color from the road surface below. In any case, road users’ attention is not mainly focused on the road surface, so that low obstacles are generally less noticeable than higher ones. If, furthermore, this low obstacle is hardly distinguishable from the road surface in terms of color, at least when viewed from the front, a cautious road user would avoid erecting such an obstacle if possible. The red and white striped part of the post is only noticed later in perspective. In addition, from the plaintiff’s direction of travel in particular, low obstacles are only visible at a late stage because, as the expert described in his report, the road initially rises slightly and only descends again at the junction with the M. Weg, so that it was also obvious to avoid low obstacles due to this terrain. Finally, it should be noted that only one post had been moved, while the other had been erected. This leads to road users concentrating on the upright post as a clearly recognizable obstacle and focusing their attention on avoiding it. The fact that only one of two barrier posts is down is an unusual situation that a road user does not readily expect and which must therefore be avoided or at least marked in such a way that everyone can be aware of it. Since this was recognizable for the defendant and the installation of the left-hand barrier post after the passage by (the authorized persons) was easily reasonable, the traffic safety violation was also culpably committed.
2 However, the plaintiff was partly at fault for the accident. However, this does not result from the fact that the plaintiff had been inattentive or had reacted too late to the post that he had noticed. The expert stated that at an assumed speed of 25 km/h, which the plaintiff himself stated at the local hearing, he would have been able to see the fallen post from a distance of 8 to 6 m at a measured seat height of 55 to 60 cm above the ground. In his supplementary report, the expert further stated that, at a speed of 25 km/h, it would not have been possible for the plaintiff to avoid the fallen post from a distance of 8 m if he had noticed it. He would have been able to do so if he had seen it from a distance of 10 m. However, the photographs taken by the expert (…) show that it was not possible for the plaintiff to see it safely from a distance of 10 m. This is because only the camera mounted next to the plaintiff’s right eye recorded the metal ground sleeve of the barrier post on the photographs, not the one mounted on the left eye. As a result of his expert opinion, the expert also consistently stated that the moved barrier post could only be seen by the plaintiff from a distance of 8 to 6 meters.
However, the plaintiff’s contributory negligence arises from the fact that he was not moving at a speed appropriate to the situation because he did not have sufficient forward visibility. According to Section 3 (1) sentence 2 StVO, a driver must adapt his speed to the road, traffic, visibility and weather conditions as well as his personal abilities and the characteristics of the vehicle and load. In this case, the plaintiff was riding a handbike in the form of a recumbent, with his eye level 55 to 60 cm above the ground according to the expert’s findings. This is significantly lower than for adult cyclists (1.8 m according to the expert) or children riding bicycles (1.2 m). In addition, his view to the front was partially obscured by the hand crank and the arms operating it. Due to the special features of the plaintiff’s vehicle, it was therefore clear from the outset that he had a reduced view compared to other road users, on the one hand due to the low eye level and on the other hand due to the obscured view caused by the hand crank and the driver’s arms. In particular, the view of the ground in front of the plaintiff was restricted as a result. In this situation, a speed of 25 km/h is to be regarded as excessive, even with an otherwise clear view in light traffic. As the expert found, the road that the plaintiff was driving on was not flat, but had inclines and declines. The plaintiff therefore always had to expect that he would be late in recognizing obstacles that appeared on the road due to the special features of his vehicle and his mode of transport. According to the plaintiff (…), the path was a footpath and cycle path, so that the plaintiff had to expect that this path was geared to the needs of pedestrians and cyclists, but not to the needs of recumbent cyclists with a very low head height. He was therefore only allowed to move at a speed that gave him approximately the same reaction time as a cyclist. According to the expert’s explanations, however, a cyclist would have been able to recognize and ride around the barrier post at a sufficient distance if he had been approaching at an appropriate speed.
The court assessed the contributory negligence based on the plaintiff’s inappropriate speed at 50%.
3. the material damage suffered by the plaintiff is undisputed – repair costs of € 1,675.50, a lump sum for expenses of € 25 and costs for a medical opinion of € 66.45, a total of € 1,766.50. The plaintiff can demand half of this amount, i.e. € 886.48.
4. with regard to the claim for damages for pain and suffering, the following circumstances had to be taken into account in order to determine an amount that does justice to the plaintiff’s interest in compensation and satisfaction: the plaintiff suffered a bilateral fracture of the ischium, a fracture of the sacrum on the right, a fracture of the spinous process of the fifth lumbar vertebra and a fracture of the pelvic ring. The injuries were treated conservatively. The plaintiff was unable to work for 6 weeks. According to the results of the specialist orthopaedic report, the pelvic ring fracture healed in a malposition with step formation, particularly in the area of the left ischium, although step formation was also observed in the area of the right ischium. According to the expert, this has led to a significant aggravation of the already considerable strain on the ischial area for the plaintiff as a wheelchair user. The result is a greatly increased strain on the soft tissue with the risk of developing pressure sores and their complications, which can only be countered by relieving the ischial area and thus reducing sitting time, which leads to a reduction in participation in social life. The court agrees with these statements after its own examination. There was no reason to obtain a further expert opinion on the question of whether the plaintiff’s sporting activities with the recumbent bike and the corresponding training had not only exacerbated the plaintiff’s soft tissue strain with the risk of developing pressure sores, but had even caused it. This objection to the result of the expert opinion was only raised after the deadline set in accordance with § 411 Para. 4 ZPO had expired. As the obtaining of a further expert opinion delayed the legal dispute and the late submission was not excused, the submission is rejected as late in accordance with § 411 Para. 4, 296 Para. 1 ZPO. Moreover, it is also unlikely that this will change the assessment of the expert opinion, as it is certain that the pelvic ring fracture has healed a malposition and led to the formation of steps on the ischial tuberosities. This assessment by the expert and the resulting risk of pressure point formation will not change as a result of the newly presented facts. At best, it is possible that a pressure point that actually occurs in the future will not be due to the accident, but to the plaintiff’s sporting activities, but this is not the subject of this legal dispute. However, it can be inferred from the plaintiff’s sporting activities that he is by no means socially withdrawn after the accident, but that he is able to participate in social life, even if he has to pay more attention to relieving the pressure on his sitting legs than before the accident.
Insofar as the expert has established that a connection between the accident and the plaintiff’s burning pain in the left leg area cannot be scientifically proven, but is probable, the court is convinced, after evaluating all the circumstances in accordance with § 286 ZPO, that there is a causal link between the accident and the pain. In particular, the expert was unable to identify any other alternative causes, but emphasized that this pain was not present before the accident and is also not mentioned in the plaintiff’s treatment records from the time before the accident. They must therefore be taken into account when assessing the compensation for pain and suffering.
However, the accident causality of the electrical disturbances and the existence of a 100% incapacity to work have not been proven. On the contrary, the claimant is gainfully employed.
When calculating the compensation for pain and suffering, it must also be taken into account that the plaintiff was 50% responsible for the accident.
Taking all these circumstances into account, the court considers compensation for pain and suffering totaling €1,800 to be appropriate.
5. the application for a declaratory judgment is justified, taking into account a contributory negligence rate of 50%. The expert has stated that due to the formation of steps on the seat legs, there is a significantly increased risk of pressure sores and their complications compared to the situation before the accident. Whether this risk will materialize in the future is not foreseeable at the present time.
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