Operational hazard

Under the operating risk is understood by a technical plant or animal outgoing latent danger that their operation or livestock brings with it and a hazard of persons or things may lead.

General

Operational hazards emanate from large plants such as oil refineries , but also from the operation of railways or the operation of motor vehicles . Operational danger is already the inherent danger; the system does not have to be in operation. For example, a motor vehicle is in operation as long as it is in traffic and thus endangers other road users - even if only abstractly. It must move in public transport or rest in a way that influences the traffic. Therefore, not only the vehicles on the road are in operation, but also vehicles that are parked in public traffic areas or that have broken down due to a breakdown . In this judgment, the Federal Court of Justice (BGH) assumes that the operation of a motor vehicle is generally not interrupted when the vehicle stops on the road with the engine switched off.

species

Depending on the degree of intensity of the operational risk, a distinction is made:

The simple operational hazard associated with operating a facility;
the general operational risk that is regularly associated with the operation of a system and
the increased operational risk if the general operational risk is increased by special circumstances.

The species differ in degree in terms of the extent of the potential operational hazard.

Legal issues

The classic operational hazard originally came from the railways , so that the "Reich Railroad Act " first addressed this issue in June 1876. The fact that steam locomotives sprayed sparks and thus represented a latent fire hazard for the surrounding area was unavoidable according to the state of the art at the time . All other areas of law later made use of this provision with identical wording.

General

The operational risk is a strict liability in which the owner of the system is liable even through no fault of his own . This does not apply to strict liability in the event of force majeure . There must be adequate causality between the operation of the system and any damage that has occurred ; the system must have caused the damage. In addition, there must be an accident , i.e. a sudden event that is directly related to the operation of the source of danger in terms of time and space .

System liability in the event of environmental impact

If someone is killed, his body or his health is injured or something is damaged by an environmental impact from a system, the owner of the system is obliged to compensate the injured party for the resulting damage ( Section 1 UmweltHG ). This also applies to the environmental impact of a plant that has not yet been completed , if this is due to circumstances that justify the hazardousness of the plant after its completion ( Section 2 (1) UmweltHG). According to Section 3 (1) UmweltHG, environmental impact is present if it is caused by vapors , pressure , vibrations , gases , noises , substances , rays , heat or other phenomena that have spread in the ground, air or water.

Railways

The original legal object of strict liability was the railway. If, in accordance with Section 1 (1) HaftPflG, a person is killed, a person's body or health is injured or something is damaged while operating a railway or suspension railway , the operating company is obliged to compensate the injured party for the resulting damage.

power supply

If, according to Section 2 (1) HaftPflG, the effects of electricity , gases, vapors or liquids emanating from a power line or pipeline system or an energy supply system for the delivery of the specified energies or substances, a person is killed, the body or the health of a person injured or damaged something, the owner of the system is obliged to compensate for the resulting damage.

Genetic engineering

If someone is killed, their body or health injured or something is damaged as a result of properties of an organism that are based on genetic engineering , the operator is obliged to compensate for the resulting damage ( Section 32 (1) GenTG ).

Nuclear facilities

If the damage is based on a nuclear event originating from a nuclear installation, the provisions of the Atomic Energy Act (AtG; Section 33 (1) AtG) apply to the liability of the owner of the nuclear installation . If several persons are legally obliged to pay damages to a third party for damage caused by a nuclear event or in any other way by the effect of a nuclear fission process or the radiation of a radioactive substance or the effect of ionizing radiation emanating from an accelerator , they are legally liable Unless otherwise stated in Article 5 (d) of the Paris Agreement , the third party is jointly and severally liable ( Section 33 (1) AtG).

Motor vehicles

If, in accordance with Section 7 (1) of the Road Traffic Act, a person is killed while a motor vehicle is being operated, the body or health of a person is injured or something is damaged, the vehicle owner is obliged to compensate the injured person for the resulting damage. The operation of a motor vehicle is any effect of the vehicle on the road traffic and includes putting it into an operational state (turning the ignition key , releasing the handbrake and other things), actually putting it into operation (starting the engine ), driving a motor vehicle (setting the vehicle in motion) or keep moving, including towing and towing , parking , getting in and out, loading and unloading or just pushing ). If a parked vehicle protrudes into the traffic area in such a way that a passing vehicle comes to the other side of the street and collides with oncoming traffic there, the operational risk of the parked vehicle continues. Every vehicle parked, stopped or parked in public and private traffic areas is in operation until the resulting danger has been eliminated.

So that accidents through no fault of one's own do not trigger liability, the principle applies that third-party, gross negligence overrides the operational risk. However, contributory negligence often remains , only in the case of an "inevitable accident" this liability does not apply. Then only the operational risk of the colliding vehicle is significant. The strict liability does not cover vehicles that cannot travel on a level track at a speed higher than 20 kilometers per hour ( Section 8 StVG), e.g. e-scooters .

Aircraft

In the case of aircraft , there is also the fact that the operating risk is considerably increased because the propulsive force of the air is added to the intended operating force of the engine . A start of operation “as soon as the engine is started” is ruled out because an operational hazard is already realized as soon as the aircraft is exposed to the action of the wind on its surfaces. Other operational hazards that are particularly peculiar to the aircraft are staying in the air and the particular hazards of landing . If, under these conditions, someone is killed in an accident while operating an aircraft, if their body or health is injured or something is damaged, the aircraft operator is obliged to compensate for the damage in accordance with Section 33 (1) LuftVG .

Animal owner liability

If an animal kills a person or injures the body or health of a person or damages an object, the animal owner is obliged to compensate the injured person for the resulting damage according to § 833 BGB . The obligation to pay compensation does not apply if the damage is caused by a pet that is intended to serve the occupation , employment or maintenance of the pet owner, and either the pet owner observes the care required in traffic while supervising the animal or the damage as well using this care would have arisen.

International

In Switzerland , a motor vehicle is in operation when the mechanical equipment (engine, headlights, etc.) is switched on, then the kinetic energy caused by this has created an operational hazard for other road users and this has ultimately materialized. The specific operational risk is determined by the speed, the mass and the dimensions of the motor vehicle. Unlike in Germany, there is no operational risk when the vehicle is at rest.

In Austria , damage is required “through an accident while operating a motor vehicle” ( Section 1 EKHG ). An accident occurs in the company if “there is not only an adequate causal connection between the company and the accident, but also a danger connection”. In any case, a motor vehicle is already in operation when it is in motion, even when the engine is not running. Liability does not apply, however, if the accident was caused by an unavoidable event that was neither due to a defect in the condition nor to a failure of the activities of the motor vehicle ( Section 9 (1) EKHG); the owner must also have taken all possible care (Section 9 (2) EKHG).