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BGHZ 117, 337
Highway directional speed regulation; Road Traffic Act § 7, Section 1, paragraph 2
Summary:
"If a driver who has exceeded the recommended speed of 130 km / h, involved in an accident, he can if he is made to replace the accident damage claim does not rely on the inevitability of the accident in the sense of § 7 para 2 Road Traffic Act, unless he proves that even at a speed of 130 km / . h came to the accident with comparably severe consequences "would constitute
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The Erstbekl. came when, on 07/19/1986 with 21.20 to clock his speed high Porsche went 911 in the left lane of a three-lane motorway, with the Zweitbekl. liability insured car, which he had slowed down behind a middle of the lane changing on his BMW into a skid. The vehicle crossed the center lane and struck the right lane against a camper trailer. This broke off the trailer and hit a parked on the hard shoulder Opel Kadett. This was the class which was below the Opel Kadett, to repair the generator of the car, seriously injured. He was replaced by the defendant with his 78536.14 DM quantified and accidental physical damage required and made an appropriate claim for pain and suffering. The LG has
dismissed the complaint. The appeal of the class has had no success. The revision followed the class action claims on his terms only of physical damage.
Grounds:
a. "The accident is the Erstbekl. not an inevitable event in the sense of § 7 para been 2 Road Traffic Act. With its opposite, the mountain standings. the control of the underlying standard of liability and the importance of highway-speed directional Regulation of 21.11.1978 (Federal Law Gazette I p. 1824) for the interpretation of this provision is not taken into account.
The term "unavoidable event" in the sense of § 7 para 2 Road Traffic Act says, which, however, considered in isolation, the sense of the word could speak, though not absolute inevitability of the accident, but, as in § 7 paragraph 2 StVG yields a damage-causing event which even with the utmost possible care can not be averted. This, however, place a proper, intellectual current action is considerably above the standard of care necessary in the sense of § 276 BGB also (see Senate, VersR 1987,158,159 further citations.). The driver, who wants to argue with success, the inevitability of the accident must, like an "ideal driver behaved" (see Senate, DRSP II (294) 219 ac = NJW 1986.183; DRSP II (294) 229 ab = NJW 1987.2375; see also BGH, NJW 1985,1950,1951 Nachw mw). ...
The concept of inevitable event in the sense of § 7 para 2 Road Traffic Act requires protection at the end of strict liability for motor vehicle operation Organising rating (see Senate, BGHZ = 105,65,69 DRSP II (294) 235 ab).
This assessment must be made in regard to actual traffic conditions (see Senate, VersR 1964, 777, 778). Here, the trial may not be limited to the question of whether the driver has reacted in the real risk situation as an "Ideal Driver", but they must be extended to the further question, advised whether an "ideal driver" at all in such a dangerous situation would be; resulting from a preventable risk situation developed not by accident is inevitable that the driver is in danger now (too late) "ideal" behavior (cf. Krumme-Steffen, Road Traffic Act, 1977, § 7, para 25). This requires § 7 para 2 Road Traffic Act, that the "Ideal Driver" in its operation, even the findings into account, which may in general experience, hazards to avoid, if possible.
Such findings have in the highway-speed directional Regulation found expression. However, this regulation is limited to the recommendation, including on highways even with favorable road, traffic, visibility and weather conditions do not exceed 130 to drive mph. It is so different from § 3 StVO no provision for the necessary road handling, build on their injury, immediate sanctions. Thus, the Rechtspr. - If you can - so far uniformly held that exceeded the recommended speed itself, a notion of blame is not justified (see OLG Hamm, NZV 1992.30, OLG Köln, VersR 1991,1188,1189, KG, stick communicated 1985,63,64; OLG Karlsruhe, DAR 1988.163; see also OLG Saarbrücken, stick communicated 1987,54,55). The lack of immediate sanctions does not imply absolute legal irrelevance and for the liability. Rather, it turns in the highway-speed directional Regulation of experience knowledge expressed, to be considered in the interpretation of the concept to the inevitable event with (references omitted 103,338,341 f. to the status of recommendations of DIN standards). The Regulation is based on the authorization of § 6 para 1 No 3 Road Traffic Act, the very fact shows that it is intended to ensure safety of traffic. This is also reflected in the final report of a task force of scientists expression submitted to the legislature (VerkBl. 1978.478). It was based mainly on the recognition that compliance with such reduced speed on highways even with favorable location and traffic conditions sustainably to avoid accidents, especially those with severe consequences, contributing ... . The recommendation of the legislator is thus, despite their lack of action constitutes a legal obligation to 'reason' call and appeal to the responsibility of road users (see Jagusch, NJW 1974,881,882 f. Justification for the Federal Highway directional speed ordinance of 13.03.1974, VerkBl. 1974.225), which a driver who wants to meet the increased requirements of an "Ideal Driver" must not be ignored. The recommendation seeks to reduce the dangers of operating motor vehicles on highways, the formation of a general movement of consciousness, which is to take the driver without the existence of a speed control bill. Only those who Comply with the recommended speed, behaves as "Ideal Driver" as it says § 7 para 2 Road Traffic Act. Within the framework of the owner liability of § 7 StVG just such an ideal driver, if he is implicated by the conduct of another motorist on the highway in an accident, rely on the principle of trust, who is driving faster than 130 km / h, increases in adhesion-relevant manner the risk that another road user is not on this procedure stops, especially the speed underestimated.
conclusion is not that today's motor vehicles due to technological level of development even at speeds of more than 130 km / h a safe Operating permit. Also, it does not matter that the development of many state highway routes such speed safely permit. The crucial point is that these technical possibilities are limited in their features and capabilities of people who use them. Not only demand higher speeds, a disproportionately increasing amount of attention, anticipation and responsiveness of the driver to respond to which he adapted alternate traffic situations, but the driver has to remember also that he is moving on the highway with other road users, that skills are not often caused by a to recognize long braking distance marked special hazards and control emanating from a moving vehicle at high speed other (cf. OLG Hamm, DAR 1991,455,456; see also Gregory, NZV 1990,269,270). Experience has shown repeatedly that road users the speed of a fast approaching vehicle, especially when approaching from the rear, not properly assess and then not for a change of lanes capable set. The needs of the "Ideal Driver" in his speed even take into account if he is able to control his own vehicle driven by him at the high speed full. In an accident, in which he is involved in this way on the highway are updated, usually that of operational risk, which follows on the strict liability of § 7 Road Traffic Act, even under favorable market conditions and in accordance with all other traffic regulations in any event, if he recommended speed of 130 km / h limit, unless he proves that it would come, even under these speeds comparable to the accident with serious consequences. ...
The grounds on which the Berger. has come under the Recital to support the conclusion that the risk of the operation of the vehicle Erstbekl. remain in balancing causation running out approach had a check has also not stood.
The appeal. has ... the gross transport illegal and culpable conduct of the BMW driver involved remained unknown to the detriment of the class in the balance of causation contributions. This is not right. By law, the revision out that the obligation to meet the Erstbekl. to determine on the basis of an individual assessment of his contribution to the cause of the class is. A survey of all the posts cause, as the Berger. made, has come in such a case is not considered (references omitted 30, 203, 205, 212; BGHZ 61, 351, 354; Steffen, DAR 1990, 41, 42) "
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