Court judgments and their consequences

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Court judgments and their consequences
Federal Highway Research Institute

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traffic & business

Court judgments and their consequences

Court judgments and their consequences
In the name of the people

As smooth as a mirror – several motorcyclists fell here and sued the state of North Rhine-Westphalia for damages. Two courts now agreed with them. What do the judgments mean for other motorcyclists?

Michael Schumann

04/28/2016

BMW driver Dieter Eblen from Backnang near Stuttgart, and not only he, will probably read this article very carefully. Because in August 2013, the experienced biker slipped and fell on a rain-damp county road near Heilbronn at a speed of 60 at a permitted 100 km / h in a right-hand bend for no apparent reason. Because of the dangerous smoothness of the asphalt, he then sued the Heilbronn Road Traffic Office for damages – and lost, like many other motorcyclists elsewhere in similar cases.

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When asked what the verdict (www.motorradonline.de/hn) in his opinion, Eblen said after the trial in 2014 to MOTORRAD: “The same as all past judgments. If any court were to agree with the plaintiff, this would result in an avalanche of further lawsuits “(MOTORRAD 14/2014).

Violation of the duty of road safety

But now even two courts have found motorcyclists right. The Hamm Higher Regional Court in the second instance (MOTORRAD 4/2016) and the Detmold Regional Court. Let’s briefly summarize the two processes:

In June 2012, before the accident near Heilbronn, Heidi Schmidt [name changed by the editors] slipped and fell with her CBF 1000 on a wet country road at the end of Kirchheide near Bad Salzuflen. The photo above shows the location during the taking of evidence by the local police. At the same point – a maximum speed of 40 km / h was permitted there at the time – three other motorcyclists fell within a few seconds. They were not faster than the allowed 40. A driver was injured and the four motorcycles were damaged by 22,000 euros, as the police later said. Heidi Schmidt first sued the Detmold district court against the state of North Rhine-Westphalia – and lost. But the Honda driver persisted and took her lawyer to the next higher regional court in Hamm. That proved her right in the second instance at the end of 2015: The responsible authority, the State Office for Road Construction NRW (interview on the right), was sentenced to pay Heidi Schmidt damages for violating the duty of road safety. A second of the four victims also complained. The man drove as a tour guide at the head of the group around Heidi Schmidt, hired by a local Honda dealer for customer trips. He was right in the first instance by the Detmold district court, which now followed the arguments of the higher court from Hamm and also sentenced the authority to compensation for the motorcyclist.

The judgments by Hamm and Detmold therefore refer to the same street section and the identical situation. Frank Becker, as a representative of the condemned authority, therefore sees them as identical in content. Neither he nor any other representative of his authority wanted to go into this more specifically than in the interview (at the bottom of this page). The question raised by the courts remains unanswered, why no warning notices had been placed at that point, although the authorities had known about their slipperiness since 2008 and their grip had been given a grade of five. Frank Becker, that much is certain, has no personal responsibility for this.

“It always depends on the individual case”

Will there be a wave of processes like the prophesied BMW driver Dieter Eblen, who was overthrown in Baden-Wurttemberg? To put it another way: Do the judgments by Hamm and Detmold have a signal effect for negotiations on similar accidents? Even experienced motorcyclists often fall for no apparent reason at an adjusted speed in places that are not recognizable as dangerous, such as Dieter Eblen or the tour guide of the Honda dealer.

MOTORRAD asked the Stuttgart lawyer Ingo Becker, who specializes in traffic law, for an assessment (below). However, when asked about a possible “precedent character” of these two judgments by Detmold and Hamm, the lawyer declined: “It always depends on the individual case.” In addition, it is not unusual for different courts to deal with similar or supposedly the same issues Assessments would come. And the question in which federal state also plays a significant role, because different countries can have different road traffic laws. According to the lawyer, the victories of the motorcyclists against the road traffic authority will probably remain isolated cases.

“Absolute safety cannot (…) be demanded,” says the judges’ two reasons for the verdict. In addition, both courts also asserted the “typical general operational hazard emanating from the motorcycle”, which “has occurred due to the relative instability of a motorcycle, especially when the road surface is wet”. In plain language: road traffic is potentially dangerous and motorcycling is anyway. The judges therefore deducted 25 percent of the compensation for both plaintiffs.

To the country’s liability for accidents


Court judgments and their consequences


mps photo studio

Ingo Becker, lawyer, www.rechtsanwaltskanzlei-becker.de

Is it always your own fault if a motorcyclist falls without the help of others? Sure no, says the Stuttgart lawyer Ingo Becker. Nevertheless, the lawyer and Yamaha XT 600 fan is rather skeptical about the chances of success of lawsuits against the authorities.

With the judgment of the OLG Hamm dated December 18, 2015, the state of North Rhine-Westphalia was sentenced to compensation for a motorcyclist who fell due to a poor road surface. The judgment is based on the idea that the road construction authorities (cities, municipalities or states) are obliged to keep the traffic routes they maintain free of danger spots. If this duty is violated, liability for violation of official duty comes into consideration. In the judgment of the OLG Hamm it was found that the road surface at the accident site had a lack of grip and that the responsible road building authority had been aware of this for years. Nevertheless, the road construction authorities failed to take appropriate safety measures, i.e. to renew the pavement or to put up warning notices.

In the past, however, there have been numerous judgments in which the complaints by motorcycle riders concerned were unsuccessful. As is so often the case in legal disputes, the question of the burden of proof is decisive. The motorcyclist must prove the violation of a road safety obligation as the cause of the fall. The plaintiffs succeeded in doing this in the above-mentioned case, but not in many other similar cases.

In addition, the injured party usually has to prove that the source of the danger was not recognizable to him. If, however, warning signs point out the existing danger situation (as decided by the judgment of the LG Magdeburg of 30. 7. 2015, 10 O 352/15), the danger is recognizable. The same applies if, for example, road damage has been repaired over a large area with bitumen and the motorcyclist can then prepare for the resulting danger in good time. When it comes to the question of how the courts decide, it is also important in which federal state the accident occurred.

The obligation of the authorities to maintain and secure public roads is regulated differently in the individual countries. The Road Traffic Act of Baden-Wuerttemberg and Berlin can be used to clarify this: Both laws provide that public roads are to be built and maintained in a condition that is sufficient for regular traffic requirements and that traffic signs are used to indicate that they are not safe for traffic. The Berlin Road Act, however, also imposes the obligation on the road construction authorities to immediately establish a roadworthy condition, regardless of whether the source of the hazard is recognizable, and makes this part of the road traffic safety obligation. The legal obligation of the road construction agency and thus the scope of the security obligations goes much further in Berlin than in Baden-Wurttemberg.

Interview with Frank Becker


Court judgments and their consequences


Becker

Frank Becker, graduate engineer and road builder in the construction department of the State Office for Road Construction North Rhine-Westphalia in Gelsenkirchen.

MOTORRAD wanted to know from Frank Becker how the authority controls roads and what they do to prevent such accidents from happening again.

What are the conceivable reasons why a section of road can become a slide trap for motorcyclists??

The grip can change due to many influences: soiling from dust or pollen, the thickness of the water film on the road in rain, snow, ice or frost, the properties of the tire, its tread depth, the driving speed and the driving behavior of the driver. A real slip trap can actually arise after a long period of drought in spring and summer when it starts to rain. In this situation, from a chemical point of view, dust and pollen deposited on the road surface together with the water form “soaps”. These can turn the road into a slide, even if the grip is otherwise good. The utmost caution is required, especially for motorcyclists. But we as the road construction authority have no influence on any of this.

But there are factors that you can control.

Naturally. The grip also depends on the properties of the road surface, in particular on its roughness. The selection of the building materials used is also decisive here. Since the road surface is subject to constant stress from being driven on, its grip can decrease as a result, which is not always visible to road users. The road surface may look visually rough, but the surface can still have poor grip if the stones used in the asphalt have been “polished” by traffic. That is very deceptive, which is why we pay special attention to this property.

How often and in what way is the grip checked?

When building a new road or renewing the surface course, we have specific requirements for grip in the contracts with the construction companies. We check these requirements with certain measuring methods before the goods are released for traffic and before the claims for defects expire. If they are not met, the construction company must remedy the defect at its own expense. If the construction company is no longer responsible, we check the entire road network for which we are responsible every four years with regard to grip and also with regard to a large number of other properties (e.g. evenness, ruts, cracks, etc. ). These measurements are made with special, high-speed measuring systems for grip. It measures in one track and not the entire area. The effort involved in measuring the entire area would be legally unreasonable within the scope of the traffic safety obligation. The measurements are evaluated and the results are converted into a kind of grading system like in school – from condition value 1 for very good to condition value 5 for very poor.

And from what grade will the road surface be rehabilitated?

You can’t say that across the board now. Reaching a certain level does not automatically mean that a road must be rehabilitated immediately. Likewise, a good value does not automatically mean that the entire section is good and that small areas may not even have to be renovated, even if the overall condition is good. The route should also be considered here: If there are tight bends, a steep incline or sections of the route that often require braking, we are more likely to take action than for routes without bends. It is always a case-by-case consideration, taking into account other factors, how to react. The police also report to us sections of the route in which there have been multiple accidents in the wet. There, we will then immediately carry out further measurements locally in order to assess whether poor grip had an influence on the accidents.

What measures can the authority take if action is required??

If we come to the conclusion that there is poor grip and at the same time there is also a risk that this increases the risk of an accident in the wet, measures under traffic law must first be provided. This means that the maximum speed limit will be reduced and / or danger signs will be put up. In this way, the road user is warned of the dangers and can fulfill his obligations from §3 StVO (e.g. reduction of speed). In the medium term, structural measures will then follow to increase grip again, for example by replacing the asphalt, through measures to improve grip such as fine milling, high-pressure water jets, the application of coatings, by improving water drainage on the street or by improving visibility.

What conclusions does the Landesbetrieb Strabenbau NRW draw from the judgments by Detmold and Hamm?

The judgments you mentioned concern two individual cases in the area of ​​the same road section and in the immediate temporal context. I very much regret the damage that resulted from these two accidents. Every accident is one too many. In principle, however, regardless of these individual cases, I am convinced that our actions are sufficient within the scope of our duty to ensure traffic safety and taking into account the reasonableness. This is confirmed by the fact that in the past there has never been a judgment in which our authority was found to be complicit in an accident in connection with poor grip.

Can an authority close a route for motorbikes due to insufficient grip? If so, you think such a long-term or even permanent block is conceivable?

In connection with poor grip, there have never been complete road closures in our area of ​​responsibility. It cannot be ruled out that certain sections of the route will be provided with traffic-restricting measures (e.g. lowering the maximum speed limit, setting up danger signs) in order to warn road users of unrecognizable deficits on the road until we comply with our duty of traffic safety. After that, we will endeavor to take these restrictions back through structural measures. That’s why I can’t imagine that a complete closure of a section of road especially for motorcycles would be realistic.

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