In principle, according to § 93 StVO, the owner of a (developed) property in the local area must ensure that the sidewalks and walkways serving public traffic along the property at a distance of no more than 3 m, including the stairways along the entire length of the property, are cleared of snow and debris between 6 a.m. and 10 p.m. and are gritted in the event of snow and black ice. If there is no sidewalk (sidewalk), the edge of the road must be cleaned and gritted to a width of 1 meter. The owner can transfer this obligation to a winter maintenance company.
However, the Supreme Court recently dealt with the question of who is responsible for the rear exit of a house that does not lead onto a sidewalk etc. serving public traffic within the meaning of the German Road Traffic Regulations (StVO) if a person is injured by black ice.
The specific decision of the Supreme Court of 30.01.2018 on 9 Ob 69/17p was based on the following facts: the tenant of a cooperative apartment injured herself due to a fall on black ice at the rear exit of the building. She therefore claimed compensation for pain and suffering from the winter road clearance service on the grounds that it had only gritted the road but not the rear exit and had therefore not (sufficiently) fulfilled the duties assigned to it.
Specifically, the Supreme Court therefore commented on whether a tenant can make a claim against the landlord or the winter service company commissioned by the landlord for inadequate gritting in the event of a fall caused by black ice in the rear exit area of a property. It came to the legal conclusion that the clearing contract was concluded between the cooperative and the winter road clearance service and that the injured plaintiff therefore had no direct (contractual) claim against the winter road clearance service. In particular, the cooperative already had its own contractual duties of protection and care towards the plaintiff, which took precedence in any case.
Under civil law, a contractual liability of the winter road clearance service towards the plaintiff is therefore ruled out due to the lack of a contract between these parties. It therefore only remains to be considered whether the winter road clearance service is liable in tort. However, tortious liability of the winter road clearance service is also ruled out, as it is only liable for its assistant (employee) if it uses a (habitually) unfit or knowingly dangerous person, which was not to be assumed in the specific case. The legal requirements for liability of the winter road clearance service based on Section 93 StVO – in particular Paragraph 5 – are not met, as no sidewalk or footpath serving public traffic was affected.
CONCLUSION:
Even if the owner of a building has outsourced the obligation to clear sidewalks to a designated company in accordance with Section 93 StVO, this does not release him from his obligation to keep an eye on sidewalks that are not used by public traffic and to ensure that there is no risk of injury – for example to tenants.
Sources: Road Traffic Regulations 1960 – StVO 1960; Ogh.gv.at – Decisions of the Supreme Court; Ris.bka.gv.at