The plaintiff, a twelve-year-old boy, sued the lift operators of a drag lift because he knocked out his front teeth as a result of a fall from the drag lift. The accident occurred as follows:
As the plaintiff was riding uphill on the T-bar lift, he noticed that his jacket had become caught on the bar of the T-bar lift when he got off. He was pulled on by the lift, which did not go unnoticed by the lift attendant. He immediately activated the “emergency stop” switch. Nevertheless, the lift continued to move about 10 m due to the overrun time. The plaintiff was pulled further into the slope and when the lift came to a standstill, his jacket came off the hanger and he fell, sustaining the injuries mentioned at the beginning. It should be noted that the exit point of the T-bar lift is only 10 m long due to local conditions and is followed by a steep natural slope with a hanger.
The EKHG (Eisenbahn-Kraftfahrzeughaftpflichtgesetz) applies if a person is injured or killed or property is damaged during the operation of a railroad, a motor vehicle or a tow lift. The law is based on so-called strict liability – liability does not depend on the fault of the owner or operator. The law serves to compensate for damage that occurs due to the dangerous nature of the dangerous vehicle (car, train, tow lift). According to § 9 EKHG, the owner of the lift/car/railway is exempt from liability if the damage was caused by an unavoidable event. Such an unavoidable event is to be assumed in particular if the damage can be attributed to the behavior of the injured party, a third party or an animal and the persons working in the company have exercised due care according to the circumstances of the individual case.
The court of first instance dismissed the claim and justified this with the lack of fault on the part of the lift attendant as well as the successful proof of exoneration within the meaning of Section 9 (2) EKHG. The Court of Appeal, on the other hand, awarded the plaintiff one third of the damages and justified this with the lack of safety measures at the dangerous exit point. Contrary to the decision of the court of first instance, the exonerating evidence within the meaning of § 9 para. 2 EKHG was therefore not successful.
In this case, the Supreme Court confirmed the judgment of the Court of Appeal and ruled that due care within the meaning of Section 9 (2) EKHG is to be understood as the utmost care possible in the circumstances of the individual case.
The Supreme Court based its decision firstly on the operating risk of the surface lift and secondly on the fact that the lift operator did not exercise due care because it did not install any “soft materials” behind the exit point to cushion a fall in such cases. Although the lift attendant reacted quickly, the stopping time of the lift corresponds exactly to the length of the exit point, which is why the lift operator did not succeed in proving exoneration within the meaning of § 9 EKHG.
Source:
Welser/Zöchling-Jud, Bürgerliches Recht Band I Rz 1592 ff.
Supreme Court 22.03.2018, 2 Ob 2/18k.