Basement hatch case
The Kellerluke case ( Dutch Kelderluik-arrest ) is based on a judgment of the High Council of the Netherlands on November 5, 1965 ( Nederlandse Jurisprudentie 1966, 136), which has proven to be very important for the legal assessment of danger in connection with tort . In the judgment, the High Council determines the factors for assessing whether a person should take action to prevent a potentially dangerous situation from causing injury to another person.
facts
Sjouwerman, an employee of the Coca-Cola Corporation , left a cellar hatch open in February 1961 when delivering soft drinks to Café De Munt, Singel 522 in Amsterdam . Mathieu Duchateau from Maastricht, who was visiting the restaurant with his wife and a friend, fell through the open hatch on the way to the toilet and was seriously injured.
Process flow
The court ruled that in this case Duchateau was to blame for the damage - he should have been more careful. However, the Court of Justice and later the High Council sentenced Coca-Cola to liability . Leaving the cellar hatch open is negligent behavior, as the employee should have taken inattentive visitors into account. He was therefore accused of illegal behavior. However, Duchateau had to bear 50% of the damage himself because of his own fault.
Judgment of the Court of Justice
The Tribunal ruled (confirmed by the High Council),
- (11a) that according to the testimony of the local owner at the time, witness Boom, he blocked the cellar shaft with chairs in the event that he had to open the hatch,
- (11b) that witness Sjouwerman could easily have blocked the shaft in this way,
- (11c) that he did not do this, but, according to his own testimony and the testimony of the witness Boom, had decided to stack boxes with empty bottles next to the cellar shaft without completely blocking access to the toilets;
- (11d) that Sjouwerman should have taken into account that visitors might not pay their full attention to access to the toilet,
- (11e) that, given the simple means with which Sjouwerman - as mentioned above - could have adequately blocked access to the cellar shaft, if he felt that he had to move away from it, he was also to blame for the accident;
- (12) That the Court, having weighed Duchateau's guilt and that of Sjouwerman, held that each of them was half responsible for the accident.
Judgment of the High Council
In assessing Sjouwerman's negligence, the High Council used four criteria that have remained relevant in assessing the tort:
- How likely is failure to exercise the required vigilance and caution? (In this case, how likely is it that someone will miss the open basement hatch?)
- What is the likelihood that this will lead to an accident? (In this case, how likely is it that someone who overlooks the open basement hatch will actually fall in and be injured?)
- How severe can the consequences be? (In this case: How severe can the injuries from falling into the cellar shaft be?)
- How difficult are the necessary security measures? (In this case, how much labor or cost is it involved in closing or locking the hatch?)
Legal and economic background
The basement hatch factors have a legal economic background. The essence of this is outlined in the following section from an opinion by Advocate General of the High Council Adrien Jonathan Urethan Macare on an earlier judgment from 1906:
“Negligence is someone who foresees the possible consequences of his or her actions, but neglects to carry out what is necessary to protect third parties from the harm they may face; who, either out of convenience or out of calculation, lets it down in the hope that the worst that could happen now won't happen this time. Many times these hopes will be fulfilled and he will thus reap the good fruits of his calculation or comfort, but precisely because of this it is appropriate and just that, if once the risk fails, he who has taken the good chances before him, evil also bears. "
The one who creates a certain dangerous situation even though he is aware of the danger in the situation will usually benefit from that situation, although he is best able to prevent the inattentive people from getting injured. For this reason, it is fair, but also most effective, to pass the disadvantages on to those who enjoy the advantages. It is more difficult to prevent the carelessness of people about the activities or places of others than the negligence of those who carry out activities or are responsible for a particular place.
Web links
- Text of the judgment (Dutch)
Individual evidence
- ^ GE Van Maanen, De Nederlandse kelderluikarresten. Al meer dan honderd jaar - legal economic (!) - op de goede weg in Europa! , Nederlands Tijdschrift voor Burgerlijk Recht Aflevering 2008-1.
- ^ Opinion on a judgment of the High Council of March 2, 1906 in the Weekblad van het Regt # 8347 (Dutch)
