Traffic safety obligation

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A traffic safety obligation, also called traffic obligation since the rulings of the Reichsgericht , is an obligation under tort law to avert sources of danger, the failure of which can lead to claims for damages according to §§ 823 ff. BGB. The traffic safety obligations arose against the background of the " unlawful violation" of the rights and life goods mentioned in Section 823 (1) BGB.


Anyone who creates or maintains a source of danger has the duty to take the necessary and reasonable precautions to prevent damage to others. The legally required road safety includes those measures that a prudent and intelligent person who is cautious within reasonable limits considers necessary and sufficient to protect others from harm. So it's not about preventing every abstract danger. Not every accident in connection with road safety is therefore wrong . The point is to ensure a level of security that the traffic perception in the respective area deems necessary. If an accident happens anyway, it is a general risk to life and not a violation of the duty of safety, which leads to a claim for damages.


Traffic safety obligations were developed in order to justify (tortious) legal obligations to act in the event of omissions or indirect damage. Approaches to this were already found before the entry into force of the BGB under the application of common law of the early modern period . Traffic safety obligations are also used today to justify the illegality of actions in the event of indirect violations . The establishment and expansion of road safety obligations is an example of the shift in the legislative focus away from freedom of action towards an ever increasing protection of goods. Difficulties arise with the traffic safety obligations through the inclusion of elements of factuality and causality .

The character of the civil law obligation to maintain safety corresponds with the criminal law guarantor obligation . However, the duty to maintain safety must not be confused with strict liability . In contrast to liability due to the breach of a traffic safety obligation, no fault or illegal behavior is necessary for this.

Sometimes it can be difficult to differentiate the violation of a traffic safety obligation from the form of fault of negligence. In terms of content, the standards coincide in the "care required in traffic"; however, the form of fault of negligence also asks the subjective reasons for which the duty of safety was objectively neglected.

Requirements and range

There are no special features with regard to the liability requirements in accordance with Section 823 (1) BGB. Only safety measures that traffic can expect need to be taken. It is therefore not necessary to avoid every theoretically possible hazard, only obvious hazards. In addition, the risk potential for the belayer must be recognizable. In principle, the following applies: the higher the potential risk created, the more valuable the safety measures must be.

If the source of the hazard poses a risk to children, their special curiosity and their poor ability to recognize risks must be taken into account. Additional action by third parties, including the injured party himself, is generally not a reason for excluding liability according to Section 823 BGB. The illegality is indicated by the violation of the duty to maintain safety. The negligent may have to prove relevant justifications on his own initiative.

Legal teacher Dieter Medicus explains the function of traffic safety obligations that there is a certain legal resemblance between “omission” and “indirectly caused injury”. The adequacy , which limits action and omission to predictability, is not yet sufficient to indicate unlawful fulfillment of the facts, which is evident in the case of omission. A uniform function of the traffic safety obligations therefore requires that the accusation of unlawful fulfillment of a criminal offense should only affect a significantly more restricted group of people that go beyond adequacy.

A possible classification of the protection area or the persons obliged to maintain safety with regard to liability could be made as follows:

Basically: Anyone who sets (creates or maintains) a source of danger must take the necessary and reasonable precautions so that no dangers arise from it. Failure to comply with these obligations can result in liability obligations under Section 823 (1) of the German Civil Code (BGB), at least if they adequately result in the violation of one of the goods or rights that fall within the scope of protection of the offense norm. The offense of § 823 Paragraph 1 BGB is then fulfilled with indicated illegality. It mainly affects these cases:

  • Assumption of a task (evacuation company, sometimes the "original traffic safety person" makes a selection and monitoring obligation)
  • Previous dangerous action ( Ingerenz )

In other cases, protective laws within the meaning of Section 823 (2) of the German Civil Code (BGB) regulate the proper processes of the community. This includes statutory duties of the municipalities. They often resemble the road safety obligations created by the courts. Anyone who violates these obligations is acting illegally anyway. These include regulations for

  • Safety in your own area (observance of the house owner's obligation to clear snow)

Not everyone is included in the scope of protection; the expectation of trust in traffic must also be taken into account here. For example, the note: Access to unauthorized persons is prohibited and generally excludes any traffic safety obligation for offenders.

Reasons for origin and practical significance

Obligations to maintain safety arise in particular through a previous dangerous action (so-called " ingerenz " ), through the control of a dangerous sphere and through the creation of legitimate trust in the defense of a danger. The practical applications for road safety obligations are extremely diverse. Traffic safety obligations apply in road traffic, in the event of dangers due to the condition of land and other objects (buildings / apartments, etc.), in dangerous events and high-risk professional and other activities.

Producer liability under tort law is also based on traffic obligations due to the manufacture of dangerous products. The inevitable errors , errors that can occur despite production according to the best state of science and technology, are certainly not recorded . On the other hand, jurisprudence forms groups of cases from which tortious liability basically already results. This includes manufacturing or control errors that can arise as improper and avoidable "outliers" within an otherwise orderly production line. In these cases, the case law operates to protect the public in questions of attributing the success of the infringement with a reversal of the burden of proof . In the vicinity of this group of cases, design errors as well as instruction / instruction errors are increasingly being placed, for example when consumer information is missing. The jurisprudence has developed the tendency to tighten the producer liability based on § 823 paragraph 1 BGB and to expand it in other places. This is shown by examples such as the Milupa judgment , the 1991 claim for damages by a plaintiff who had lost teeth due to caries as a result of years of sucking on a sweetened tea drink. In the so-called cupola case , ejection damage according to §§ 906 Paragraph 2 BGB led to a similar reversal of the burden of proof for illegality and fault.

Within a company, road safety obligations - and thus liability - not only affect the company owner, but also, where applicable, organs and employees. In large companies, there is talk of an organizational obligation that triggers liability on the part of the owner of the company (regularly via Section 31 of the German Civil Code) in the event of non-compliance with road safety obligations, even if the supervisory obligation has been delegated to auxiliary staff (liability when assistants are employed ). The obligation to maintain safety can arise for a third party through the actual assumption of a hazard-prevention activity; the original duty bearer remains obliged to monitor.

In Austria this is regulated in the general civil code in § 1319. So z. B. Compliance with buildings can be ensured by ÖNORM B 1300, see: Building security .

Road safety obligation using the example of the roads in Germany

Both in public and private, but publicly accessible traffic areas, the owner of the property is primarily required to use road safety. In the case of state roads, this is the state, in the case of district roads the district, in the case of municipal roads the municipality, in the case of private roads and access roads from houses to public sidewalks, the private owners. The administration of the federal trunk roads is in accordance with Art. 90 Paragraph 2 GG transferred to the states, but the federal government is responsible for the road construction burden .

If the claim for damages is directed against a public road construction company, the basis for the claim is § 839 Paragraph 1 BGB, Article 34 GG. If a social insurance agency incurs expenses for the treatment of injuries as a result of a breach of the duty to maintain safety, the claim is generally transferred to the social insurance agency in accordance with Section 116 SGB X and it can therefore demand compensation from the person liable for insurance.

A traffic safety obligation arises from the fact that a road construction agency or another person authorized to dispose of a road, a path or a square allows the public to use it. The resulting traffic safety obligation requires that the person obliged to remove or at least warn of the dangers that correspond to a regular traffic need in a suitable and reasonable manner. The focus here is on the needs of a road user who takes the care required in traffic while using it in a traffic-friendly manner.

The obligation to litter and clear is of particular practical importance in the case of ice and slippery surfaces. According to a ruling by the Federal Court of Justice of July 23, 2015 (file number: III ZR 86/15), this does not apply without restriction, but within the framework of what is reasonable, whereby the ability of the person liable for security is important. In its judgment of 14 May 2013 (file number: 11 U 51/12), the Schleswig Higher Regional Court emphasized that those taking part in road traffic had to adapt to the given road conditions in winter. The respective provisions of the state and road laws of the federal states and the street cleaning statutes of the municipalities apply for a more precise design of the clearance and littering obligation. The street cleaning statutes usually regulate in which cases and which periods there is an obligation to clear and litter. It is customary to clear and litter from 7 a.m. to 8 p.m., but in some municipalities only from 8 a.m. to 8 p.m. A claim for damages from the duty to ensure traffic safety only exists if the person responsible for securing has violated the clearing and spreading obligation regulated there and this violation has become the cause of damage to the claimant. Pedestrian crossings (zebra crossings) are not generally to be spread within built-up areas, but only to the extent that they are lively and indispensable. The yardstick is the importance of the area for traffic.

Obligation to maintain traffic safety for structures

Basically, it depends on whether the structure corresponds to the recognized rules and the state of the art. DIN specifications must be complied with for floor coverings. Marginal unevenness in the floor covering can be within the permissible tolerance range.

Traffic safety obligation at events

An organizer of an "active" sports and Olympic museum tour is not liable for injuries to a participant in a sporting exercise if the injury is due to dangers that are typically associated with the respective sporting exercise (here: tendon rupture during standing long jump). However, the organizer must protect the participants from insidious objects and atypical dangers, which can hardly be recognized by the participants, as part of his duty to ensure traffic safety.

Traffic safety obligation in the forest

The forest owner is generally not liable for violations of the duty to maintain safety for typical forest hazards.

When entering a forest, visitors to the forest consciously expose themselves to the dangers typical of the forest, so that they are aware of the special circumstances that justify a specific danger situation, put themselves in a situation of imminent danger to themselves and thus use the forest at their own risk. This is legally standardized in Section 14 (1) BWaldG.

The forest owner's duty to maintain safety is not entirely excluded in the forest, but limited to protection against dangers that are not typical for the forest, but atypical in the forest. In the case of trees on the edge of public roads, there are also further traffic safety obligations. Here, the owner is obliged, with due consideration for road traffic, to avoid harmful effects on road users and to plant and control the tree population in such a way that it is protected against wind breakage and windthrow as far as possible according to forestry knowledge . However, this only applies to sick trees. Healthy trees do not have to be removed, even if softwood species such as poplars and chestnuts can shed branches without being ill.

See also

Web links

Wiktionary: Road safety obligation  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. RGZ, 102, 372 ff. (375).
  2. permanent BGH jurisprudence, judgments of April 15, 1975 - VI ZR 19/74 - VersR 1975, 812; from 07/15/2003 - VI ZR 155/02; from 08.11.2005 - VI ZR 332/04 and from 16.05.2006 - VI ZR 189/05
  3. ^ Dieter Medicus : Civil law. 19th edition. Carl Heymanns Verlag, Cologne 2002, ISBN 3-452-24982-4 , § 25 (introduction).
  4. compare in this respect also the equivalence theory
  5. ^ Dieter Medicus : Civil law. 19th edition. Carl Heymanns Verlag, Cologne 2002, ISBN 3-452-24982-4 , § 25 I.
  6. BGHZ 51, 91 ff. (107).
  7. for errors in instructions: BGH NJW 1972, 2217 and for design errors: BGHZ 67, 359 ff. (362).
  8. BGHZ 92, 143.
  9. Rebler, ensuring public safety: road conditions, construction, trees, in: Journal of harm legal, 4/19, page 185-191
  10. OLG Cologne, decision of March 9th, 2020 - 7 U 257/19
  11. ^ BGH judgment of October 2, 2012 - VI ZR 311/11.
  12. Federal Court of Justice: judgment of III. Civil Senate of March 6, 2014 - III ZR 352/13.