Life risk

Life risk or general life risk is an indefinite legal term that describes all dangers that can lead to legally relevant disadvantages for people and are not protected by legal or contractual liability norms. The term is also used in the socio-political discussion.

General

In social interaction, but also in the effects of the environment and nature , people are exposed to a multitude of risks that they cannot completely avoid even with the greatest efforts of their own and those of others. These dangers cannot and should not be passed on to others through general liability law , so that any damage resulting therefrom is responsible and borne by the individual. A large part of these damage risks cannot even be insured, only a small part is covered by (social) insurance systems, whereby the socio-political component of the life risk comes to the fore. Life risk damage is part of self-provision.

In principle, individual damage must be compensated for in certain cases; this is ensured by the corresponding liability standards. The general life risk, however, rejects the liability of other people and leaves it to the injured party. In the case of life risk, the injuring party has acted as a basis for liability, but his liability for damage is denied. The general risk to life is therefore, as an exception, an area of law in which someone acts causing liability, but does not have to be responsible for it.

Emergence

The Federal Court of Justice first dealt with the general life risk in its judgment of April 22, 1958, but without mentioning the term. This was about the risk of being drawn into criminal proceedings . The victim of the accident was involved in a traffic accident through no fault of his own and wanted to reclaim his legal fees from the injuring party for tort ( Section 823 (1) BGB ). According to the BGH, this risk, which applies to everyone, of being involved in criminal proceedings and therefore having to raise costs for the defense, is not one of the dangers that this Protection Act seeks to avert.

The concept of the general risk to life was apparently only introduced into the legal literature by Hermann Lange in 1960 in an expert opinion for the 43rd German Lawyers' Association . Matthias Mädrich finally dogmatically recorded the general life risk, Erwin Deutsch examined the state of the art in connection with the concept of risk. What these legal works on the general risk of life have in common is that they cover large areas of everyday life in which chance plays a role.

Casuistry of life risks

The core area of life risk includes participation in general traffic, damage from environmental pollution and natural conditions, the occurrence of deficiencies in privacy, but also involvement in legal proceedings. These procedures are socially adequate, i.e. practically unavoidable and reasonable. In a large number of other decisions, the BGH and lower-level courts also included other life situations, such as the risk of being confronted with unjustified claims, as general life risks. The uncertainties of nature played a role when a police officer chased a criminal, slipping on damp lawn and tearing his muscle. The BGH saw no causality in this and classified the case as a general life risk. If animals trigger panic behavior in humans, the resulting damage also falls into the area of life risk. The Karlsruhe Higher Regional Court assigned the shock-related fall injuries of a woman from the sudden sight of a fat black spider to the general risk of life. The Aachen Regional Court assumes that “in spring and summer the danger of bee or wasp stings is omnipresent” and is therefore part of the general life risk. If someone injures himself by falling in a hotel shower, he bears the damage himself as part of the life risk; After all, it is generally known that shower rooms that are accessible to several people have an increased risk of slipping. If an elderly person falls out of bed in the hospital at night and is injured in the process, the hospital operator is only liable if the nursing staff has violated their supervisory duties; if the supervisory duties are not violated and someone falls out of bed, there is a general risk to life. The parents and their socio-economic circumstances are fundamentally part of the fate and life risk of a child .

species

According to Mädrich, two general case groups are to be systematized:

Risks which as such include a certain behavior of the injured party caused by the event giving rise to liability and
the possibility of suffering legally relevant disadvantages that can generally occur in the life of everyone in the respective forms of socialization and civilization.

It is controversial whether the general risk to life represents a negative attributable factor or is part of the theory of the scope of protection of the standard. If there is a lack of the scope of protection of liability norms, there is room for the general risk to life, which in human coexistence results in a basic risk assessment. The damage resulting from a life risk can therefore never fall within the scope of any liability norm.

Travel law

An important area of application is travel law. Here, the general life risk should exclude the tour operator's liability . Three main cases can be distinguished:

Travel accidents that are attributable to the private risk sphere of the traveler are subject to the general life risk. Accordingly, the tour operator is only liable for travel accidents if this is due to its own organizational fault.
Weather or weather conditions do not result in any liability on the part of the tour operator. As unpredictable natural developments, they are part of life risks.
The tour operator is also not liable for theft and robberies , but the BGH points out the organiser's duty to provide information in the event of significant dangers for the traveler.

We are therefore not liable for damage that occurs due to the general risk to life during a vacation trip, even if it occurs in connection with an event giving rise to liability.

If the risk of an accident occurs by falling on an unfamiliar path through the dark on a meadow, this is part of the private accident and injury risk of the traveler and represents a natural risk to life, which includes cases that can also be expected to occur in everyday private life and which are not travel-specific. The limits in the context of the weather conditions for the life risk are where a hurricane occurrence probability of 1: 4 already represents an increased risk for travelers and therefore no longer falls under the general life risk - at least if it has already been concretized as an advance warning. The travelers have a right of termination and, accordingly, an obligation to notify the organizer, if the occurrence of the damaging event is to be expected with “considerable, and not just predominant, probability”. Criminal acts in the holiday area do not represent a lack of travel , but are part of the general life risk of every traveler. Accordingly, stolen vacationers have to bear the economic consequences of theft themselves. Travelers who are attacked by robbers in their holiday hotel are generally not entitled to compensation or compensation for pain and suffering from the tour operator if the hotel complies with general security standards.

social insurance

In the welfare state , the entirety of state institutions, control measures and norms should be used to achieve the goal of cushioning life risks and negative social consequences. The reason for the liability law in the context of social insurance is the legal principle of the "casum sentit dominus", according to which everyone has to bear their general life risk themselves. A prerequisite for the statutory arrangement of compulsory insurance is that the potentially injured party is not reasonably able to evade the impending danger and that they are also classified as particularly in need of protection and worthy of protection. With compulsory insurance, state liability is ultimately avoided; It is imperative to insure the need that the general risk to life ultimately causes. The compulsory insurance is then to be legally arranged where

there is a risk that considerably exceeds the general risk to life,
In the case of a significant number of cases of damage, there is a risk that the person liable is economically unable to bear the damage without insurance,
the group of possible victims justifies legal protective measures because of their need for social protection.

The coverage of part of the life risks that are subject to self-provision is therefore guaranteed by certain compulsory insurance. Illness , accidents and retirement planning are among the most elementary social risks in life . That is why there is corresponding compulsory self-insurance (social insurance: statutory health insurance , accident insurance , long-term care insurance and old-age provision). The compulsory insurance of the social security not only determines which life risks must be covered in which form, but also with whom the insurance must be taken out. In this way, in accident insurance law, protection against general life risks is achieved that would not be subject to any other insurance protection.

Due to the aging of the population, the risk of needing care has changed from an individual fate to a general life risk, which, unlike in the past, can no longer be managed in the family as a rule due to the changed family structures. The public discussion about better social security for people in need of long-term care began in 1974 with an expert opinion by the Kuratorium Deutsche Altershilfe on the inpatient treatment of illnesses in old age, which was followed in 1976 by the first proposals of the German Association for Public and Private Welfare and a proposal by the Workers' Welfare Association.

The risk that an injured party has a claim for damages against another person, whose assets are insufficient to compensate for the damage, in turn represents a life risk for the injured party.

Differentiation from force majeure

The differentiation from force majeure is sometimes difficult. The delimitation can be clearly illustrated in travel law. If a civil war begins in the travel area ( Sri Lanka ;) shortly after booking the trip or even during the trip , this is a case of force majeure because it is to be classified as an unforeseeable event. In the case of force majeure, damage is shared, because additional costs due to termination are to be borne equally by the traveler and the tour operator ( § 651j BGB), so that the operator experiences a positive limitation of liability. However, if the civil war has been going on for some time, one can no longer speak of an unforeseeable event, so that the tour operator can protect himself against warranty claims with clear information. If someone travels to such target areas with knowledge of the war, he or she realizes a general risk to life and bears the damage that may occur himself.