Clearance and litter obligation

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Warning notice of restriction of winter service

The evacuation and litter obligation is a traffic safety obligation in snow and slippery roads and paths to avoid accidents.

Responsibility and liability

The clearing and littering obligation is incumbent on the property owner, in the case of public roads the carrier of the road construction load . The obligation to clear and litter public sidewalks is usually transferred to the private residents of the street - for example through municipal statutes . These, in turn, often transfer the obligation to the tenants of the land.

If the obligation to evacuate is culpably not observed, the obligated party may be liable for the consequences of resulting accidents. One then speaks of a violation of his duty to maintain safety . In these cases, liability under civil law from Section 823 (1) BGB comes into consideration.

In financial terms , the clearance and litter obligation is understood as a real tax .

Germany

In Germany, the obligation to clear snow is regulated differently from region to region. As a rule, it starts at 7:00 a.m. on weekdays and at 9:00 a.m. on Sundays and public holidays and ends at 8:00 p.m.

Regulations and laws

The street cleaning law of the state of Berlin prescribes the preparation of a clearing and spreading plan (Section 3 (5) StrReinG Bln). The clearing and spreading plan comprises two levels of use and is updated annually. The first stage provides for the clearing of important traffic axes and public transport lines . Furthermore, danger points and intersection areas should be given priority. If traffic safety is guaranteed here, roads that have been allocated to the second stage are cleared or gritted. In contrast to other federal states, after a change in the law in November 2010, responsibility for the proper implementation of the winter service remains with the residents in Berlin, even if they have commissioned a commercial company with the implementation (Section 6 (1) sentence 3 StrReinG Bln).

In Baden-Wuerttemberg is § 41 para. 2 Roads Act, the intervention authorization for obligation to grit statutes of cities and communities that their street residents to evacuate committed usually by a so-called "obligation to grit Articles" the sidewalks in front of their land in winter with snow and ice to sprinkle. The statutes stipulate where the snow is to be piled up, which grit may or may not be used, the times by which the snow must be cleared, etc.

In the Schleswig-Holstein state capital, Kiel , the type and scope of the obligation to litter and clear snow are regulated in the so-called street cleaning statute. The relevant § 8 ​​of these statutes specifies u. a. firmly:

“The sidewalks must be cleared of snow. Snow that has fallen after 8 p.m. must be cleared by 9 a.m. the following day, even if it is still snowing at 9 a.m. Snow that has fallen between 9 a.m. and 8 p.m. must be cleared within one hour after each snowfall has ended. During this time, unevenness caused by trampled snow must be removed immediately as often as necessary. ... The sidewalks are to be kept clear of snow and ice for pedestrian traffic and to be spread when it is slippery, which corresponds to the local requirements of public safety and order, as far as possible at least 1.50 m wide. "

Jurisprudence

Outside of the times for which clearing and gritting is prescribed, pedestrians cannot trust that the paths have been cleared. The owner is then not liable for falls. For tradespeople with a high number of visitors, this obligation often applies beyond 8:00 p.m. A sign affixed by the property owner with the text "Enter at your own risk, it will not be cleared or gritted" does not override the obligation to clear public roads.

A person liable is also obliged to clear and spread the material if he is prevented from doing so by professional activity, frailty or illness. If necessary, he must organize a representation. The obligation to clear and litter can be transferred to the tenant through the rental agreement. However, just posting house rules after the rental contract has been concluded does not result in the obligation of winter service.

The owner can delegate his clearance and spreading duties to a commercial company. If, after such a delegation, the necessary clearing and spreading activities were not carried out or only insufficiently carried out by the commissioned winter service, this has so far regularly resulted in relief according to the case law.

If the spreading measure taken cannot prevent the risk of slipping, it must be spread several times. In the event of heavy snowfall, it must be cleared several times. Usually only after it has stopped snowing. Ice surfaces have to be broken and removed. If these were caused by freezing rain , you have 40 minutes after the rain has ended. The way to the house must be accessible even in extreme ice conditions.

Once the ice and snow have thawed, property owners must remove grit, if fresh snow is not expected.

Austria

Warning sign of the Vienna City Garden Authority MA42 for uncleared paths

The exact scope of clearing and littering obligations results from the road laws or, if the obligations have been transferred to the residents, from the road winter service statute of the municipality . In Austria, for example, in Vorarlberg , the owners of built-up properties "insofar as this is reasonable for them, to ensure at their own expense that the sidewalks and sidewalks along the entire property are cleared from snow between 6 a.m. and 10 p.m. and dirt is cleaned and sprinkled in the case of slippery snow and ice. "

The property owner is responsible for cleaning sidewalks bordering private property. However, they can outsource this cleaning obligation to third parties or companies. The sidewalks have to be looked after between 6:00 a.m. and 10:00 p.m., the sidewalks have to be cleaned to two thirds of their width. At crossings or stops , the entire width of the sidewalk must be cleaned.

As a result of the abolition of the Housekeeping Act , private companies are increasingly being commissioned, which of course cannot be everywhere at the same time, which often affects pavement clearance.

Vienna

The cleaning of public traffic areas in Vienna is the task of the municipal department (MA) 48 - waste management, street cleaning and vehicle fleet. For the clearance and gritting service, vehicles from private companies are rented in addition to the company's own fleet.

The Vienna lines are for the cleaning of the tracks on their own rail tracks and stops proceedings it unless they're on stops Islands.

The MA 42 - Stadtgartenamt is responsible for the maintenance of paths in public parks and gardens. Paths can be exempted from this duty of care; these must be marked.

literature

  • Manfred Wichmann: Street cleaning and winter service in municipal practice. Legal basis - organization - tasks. (8th edition), Erich Schmidt Verlag, Berlin 2018, ISBN 978-3-503-17643-4
  • Konrad Dillkofer: Cleaning, clearing and littering in Bavaria: Explanation of the pattern order, 1991, ISBN 978-3-415-01590-6
  • Marc Lothar Mewes, Winterdienst - When it gets slippery, Hamburger Grundigentum 2009, p. 468

Individual evidence

  1. ↑ Geigel - Wolfgang Wellner, The Liability Process , 25th edition, Munich 2008, Verlag CH Beck, ISBN 978-3-406-56392-8 , Chapter 14: Applications of § 823 Paragraph 1 BGB, II: Verkehrssicherungspflicht, 5 : Litter obligation, marg. 132 ff.
  2. ↑ Otto Palandt (Gre.) - Sprau: Bürgerliches Gesetzbuch. Commentary with ancillary laws , 70th edition, Munich 2011, ISBN 978-3-406-61000-4 , § 823 BGB, marginal number 224 ff .: Clearance and litter obligation
  3. ↑ District Office Berlin-Lichtenberg: Berlin Street Cleaning Act (StrReinG Bln) (PDF; 65 kB) of December 19, 1978 (GVBl. P. 2501), last amended by law of November 18, 2010 (GVBl. P. 509)
  4. ^ Statute on the cleaning of public roads in the state capital Kiel (PDF) Waste management company Kiel (ABK). Retrieved October 13, 2019.
  5. ↑ Oberlandesgericht Koblenz, Az. 5 U 101/08
  6. ^ Higher Regional Court Karlsruhe, Az. 7 U 94/03
  7. ↑ Oberlandesgericht Frankfurt am Main, Az. 16 U 123/87
  8. ↑ Federal Court of Justice (BGH), Az. VI ZR 126/07
  9. ↑ Federal Court of Justice (BGH), Az. VI ZR 49/83
  10. ^ Higher Regional Court Schleswig, Az. 11 U 14/00
  11. ↑ Federal Court of Justice (BGH), Az. III ZR 208/75
  12. ↑ Federal Court of Justice (BGH), Az. VI ZR 260/02
  13. ↑ Vorarlberg Roads Act, Section 32 (1) StrG
  14. ^ Road traffic regulations 1960, § 93. Obligations of the residents

See also