When asserting claims for damages due to the defective condition of a path, a number of different liability bases come into consideration, some of which supersede each other, but some of which can also be invoked in competition.

When it comes to examining any claims for compensation due to the defective condition of a path, the following liability bases in particular come into consideration in advance:

• Liability of the path keeper (and his assistants) for the defective condition of a path in accordance with § 1319a ABGB;
• Liability of the property owner for sidewalks and footpaths in the local area that have not been cleared of snow and dirt and have not been gritted in the event of snow and black ice (§ 93 Para. 1 StVO);
• Liability of the party obliged to ensure safety on the basis of a contract or other special legal relationship with the injured party (including pre-contractual and ancillary duties to protect – so-called culpa-in-contrahendo liability – and contracts with protective effect in favor of third parties) according to the principles of liability ex contractu;
• Liability of the party responsible for road safety due to breach of general road safety obligations;
• Liability of the “owner of a work” pursuant to § 1319 ABGB in the overlapping or border area between § 1319a and § 1319 ABGB;
• Liability of the responsible legal entity due to inadequate traffic regulation in accordance with the standards of the AHG (official liability);
• Compensation claims under neighboring law by “neighbors” of the owner of the road property pursuant to Section 364a ABGB (road as an officially approved facility).

The liability of the property owner according to § 93 StVO:

Section 93 of the Road Traffic Regulations stipulates that the owners of properties in urban areas must ensure that sidewalks and footpaths serving public traffic along the property, including the stairways located in the corridor, must be cleared of snow and debris along the entire property between 6:00 am and 10:00 pm and gritted in the event of snow and black ice.

If there is no sidewalk (sidewalk), the edge of the road must be cleared and gritted to a width of 1 m; in a pedestrian zone or residential street without a sidewalk, the above obligation applies to a 1 m wide strip at the edge of the road. For Vienna, an ordinance issued on 16. 11. 1962 in accordance with § 93 Para. 4 StVO applies, according to which the legally stipulated snow clearance and gritting of sidewalks up to a width of 1.5 m must be carried out in full. For widths exceeding this dimension, only two thirds of the entire sidewalk width, but at least 1.5 m continuously, must be cleared and gritted.

The obligation to clear and grit also applies to owners of sales huts. Owners of undeveloped properties used for agriculture and forestry are exempt from this obligation.

Snow clearing and removal of roof avalanches must not endanger or hinder other road users; if necessary, the endangered road sections must be closed off or suitably marked.

Piles of snow that are pushed onto the sidewalk by snow plows of the road administration must also be removed. The property owner requires a permit to deposit snow from houses or properties on the road.

If snow clearance and the removal of roof avalanches, for example, is entrusted to a snow clearance company, this company is subject to the aforementioned obligations.

The aforementioned clearing and gritting obligation under the Road Traffic Act does not apply outside the local area. However, the liability of the road owner in the event of intentional or grossly negligent breach of his duty to maintain road safety in accordance with § 1319a ABGB must be observed.

Liability for condominiums:

Providing or arranging for winter maintenance is part of the administration of a property. The condominium owners’ association has the option of appointing a natural or legal person as administrator in accordance with Section 19 WEG. This appointment must be made by a resolution of the community of owners, which must be passed in accordance with § 24 WEG. The administrator is already appointed as such by the appointment. The community of owners is represented by the appointed administrator. The administrator is obliged and authorized to take all measures that serve to maintain and manage the common property, whereby administrative acts and omissions are attributable to the community of owners. In matters relating to the administration of the common property, the community of owners is liable in tort for damages arising from the actions or omissions of the administrator. Liability of the community of owners for acts and omissions of the administrator is not only justified – at least in the case of non-affirmative duties to ensure public safety – if the administrator himself took the damaging action (or failed to take a certain required measure), but also if the damage was caused by other auxiliary persons and these are not attributable to the legal entity pursuant to § 1313a ABGB or § 1315 ABGB, but the person in power (administrator) is to be charged with organizational, selection or monitoring fault. This is the case, for example, if the administrator assigns the winter maintenance to an external company. Just as in the case of the transfer of duties to maintain safe paths by the community of owners of a residential complex to an independent contractor, the community of owners is liable for its own (attributable) fault in selection or supervision, it is also liable for corresponding misconduct, i.e. fault in selection or supervision on the part of the property manager.

Liability for rental agreements:

The contract between the building owner and a winter service company is generally a non-genuine contract in favor of third parties – such as the tenant of the building – and does not provide the tenant with a direct right of action against the winter service company. Although this contract also has protective effects in favor of the tenants of the building, a direct claim by the tenants against the winter service company under this title also fails due to the subsidiarity vis-à-vis congruent claims by the tenant against the landlord.

The contract for work and services between the property owner and the winter maintenance contractor is therefore to be regarded as a non-genuine contract for the benefit of third parties with regard to a tenant. Even if the winter service contractor assumes liability for damages suffered by third parties during the performance of the service, a tenant does not acquire any direct rights as a result. The Supreme Court (also) regards the winter maintenance contract as an assumption of certain landlord obligations within the meaning of Section 1404 ABGB. The above-mentioned contractual clause only clarifies the possibility of recourse of the property owner against whom a claim is made under this provision of law.

Despite criticism from the doctrine, the Supreme Court upholds the principle of the subsidiarity of claims for damages derived from contractual protective effects in relation to congruent claims against the contractual partner. Pursuant to Section 1096 ABGB, the landlord is obliged under the tenancy agreement to ensure safe access to the property, i.e. to clear and grit snow in the area of the building entrances. This obligation to clear and grit is derived as a contractual secondary obligation from § 1096 ABGB. The contractual liability of the landlord therefore extends to accidents of the tenant that occur in general parts of the house that have not been properly cleared or gritted, such as in courtyards. The landlord also has a contractual duty to ensure road safety insofar as he must maintain access to a rented property in a safe condition for the entire duration of the tenancy.

The Supreme Court has consistently held that the landlord’s secondary obligations under the tenancy agreement also extend to persons belonging to the tenant’s household, but not to persons who are only staying in the rented premises for a short time, such as guests, suppliers and tradesmen or mere visitors and visiting relatives of the tenant.

No pointless measures may be demanded of the obligated parties; their efforts must be in reasonable proportion to the achievement of the objective.

As the owner, the landlord is also subject to the obligations under the road traffic regulations.

_Sources:

_{OGH 9.8.2012, 5 Ob 76/12f, immolex-LS 2012/80; Supreme Court 9 Ob 69/17p ZVR 2018/206; OGH 30.1.2018, 9 Ob 69/17p, immolex 2018/66; OGH 10.4.2008, 2 Ob 60/08z, immolex 2008/138}

_{Walter Kath, Die Haftung für den mangelhaften Zustand eines Weges, immolex 2011; Vermietung und Verpachtung – Praxiswissen, Weka}

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