1 – Decision review: Tort law – Liability of minors

Liability of an eight-year-old female cyclist looking backwards for the fall of a female pedestrian under § 828 of the German Civil Code (BGB)

written and translated by Ali Tahir Sen

The protection of minors extends throughout the applicable law. The section on tort regulates the liability of minors under § 828 of the German Civil Code, which, however, has a much wider scope of application. On the basis of the judgment of the OLG Celle of 19.02.2022 (14 U 69/19), we look at this in more detail.

A. Circumstances

Pedestrians A and B are walking along the promenade of Lake Garda. The eight-year-old M comes towards them in the opposite direction on her bicycle. As she does so, she turns back towards her parents and thus leaves her own driving lane unnoticed. A warning from the legal guardians about this comes too late and M is unable to stop despite full braking. While B manages to swerve to the side, A stumbles, loses her balance and falls off the boardwalk onto a concrete walkway about one meter below and then into the water.

A is seriously injured. She is brought to the hospital by ambulance, operated on and treated as an inpatient. This is then followed by post-operative care appointments with the family doctor, physiotherapy and a further operation.

In her claim (before the court with subject-matter and local jurisdiction), she asserts damages (€ 3021.27), compensation for pain and suffering (€ 10,000) and a declaration of liability for future damages against M and her parents.

B. Claims against M

In the absence of contractual and semi-contrac­tual relations, only tortious claims can be con­sidered between A and M, first a claim according to §§ 823 I, 828 III, 253 II BGB, which is to be examined according to the follow­ing scheme:

1. Facts (ger. Tat­bestand)
   1. Violation of legal rights (ger. Rechts­guts­ver­letz­ung)
   2. Infringement act (ger. Ver­letz­ungs­hand­lung)
   3. Causality and adequacy (ger. Kau­sali­tät und Adä­quanz)
2. Unlawfulness (ger. Rechts­widrig­keit)
3. Fault (ger. Verschulden)
   1. Capacity for fault (ger. Ver­schuld­ens­fähig­keit) according to § 828 BGB
   2. Fault (ger. Ver­schuld­en) ac­cor­ding to § 276 BGB
4. Legal consequence: Compensation for damages ac­cor­ding to §§ 249 ff. BGB
   1. Eligible (ger. ersatz­fähiger) damage
   2. Liability fulfilling (ger. haftungs­aus­fül­len­de) causal­ity
   3. No exclusion due to contributory neg­li­gence (ger. Mit­ver­schul­den)

1. Facts

The accident caused damage to A’s body and health. Furthermore, damage was caused to the property of A. The accident occurred because A was looking backwards. According to the OLG Celle, the fact that there was no contact bet­ween A and M does not prevent the affirmation of causality and adequacy, since the driving behavior of M led indirectly to the fall in an adequate-causal manner.

2. Unlawfulness

Considering the realization of the facts, the un­law­ful­ness is indicated and not refuted in the present case.

3. Fault

Before fault per se can be determined, it must first be established that fault capacity exists.

The capacity for insight of minors is governed by § 828 BGB. According to § 828 I BGB, minors up to and including six years are neither re­spon­si­ble for damage they cause to someone else, nor are their claims reduced by contributory negligence – completely independent of the individual’s capacity for insight or sanity. Only a liability of the supervisor according to § 832 BGB, as well as an equity claim according to § 829 BGB, are not excluded.

For accidents with a motor vehicle, a railroad or a monorail, § 828 II BGB, which was introduced in 2002, includes a presumed incapacity for fault for children between the ages of seven and nine and acknowledges, in accordance with the findings of developmental psychology, that minors under the age of 10 are regularly in­ca­pable of “recognizing the particular dangers of motorized road traffic and behaving accordingly to the recognized dangers” (BT-Drs. 14/7752, 26). This does not apply to injuries caused with intent (§ 828 II 2 BGB).

The responsibility is determined according to § 828 III BGB, unless it is excluded according to § 828 I or II BGB. The factual scope of § 828 III applies not only to the liability of the minor as a perpetrator of a tort (§§ 828 ff. BGB), but also according to § 276 I 2 BGB for contractual breach­es of duty and must be taken into account when assessing contributory neg­li­gence (BeckOGK-BGB/Wellenhofer § 828 No. 3). The (analogous) application for the attribution of knowledge in the context of a possessor-holder-relation (ger. EBV) or the law of en­rich­ment is controversial (to the currently prevailing view BeckOGK-BGB/Wellenhofer BGB § 828 No. 6), the application in the area of risk liability (e.g. § 7 StVG, § 833 BGB) is denied, since it is not a tort, but an everyday and permitted act (BeckOGK-BGB/Wellenhofer § 828 No. 4 f.; Canaris, NJW 1964, 1987 (1991 f.); dissenting Hofmann, NJW 1964, 228 (232); Deutsch, JuS 1987, 673 (678)).

a. Capacity for fault

According to case law, capacity for fault is based on two elements:

• Realization that the action is dangerous and
• Realization of being liable for this in terms of criminal or civil law

The difference between these two points is represented by the following example:

Whether the minor has the capacity to un­der­stand is judged by case law on the basis of the specific age group of the child, taking into account the circumstances of the individual case, the individual age-appropriate mental development of the child, the experience of the child with situations of this kind as well as the instinct to play, the urge to explore and try things out, the lack of discipline, scrappiness, impulsiveness or the tendency to affect reactions. (MüKoBGB/Wagner § 828 No. 10; BeckOGK-BGB/Wellenhofer § 828 No. 31; BeckOK-BGB/Spindler § 828 No. 7; in each case with further references). From this, various age-group-typical standards of care have developed, which will be briefly described below.

Accidents in sports and games

At the age of 7, a general understanding of the rules of the game and the possible danger of a game or sport is assumed. This is especially true if the rules themselves have been agreed upon (OLG Köln MDR 1993, 739 regarding a game of darts). In case of doubt, the same rules apply as for adults (OLG Hamm, NJW-RR 1992, 856 f.). The minor may rely on the observance of rules (Schleswig-Holstein Higher Regional Court, Judgment of November 25, 1992 – 9 U 47/91). An objective breach of the rules does not in­di­cate culpable conduct as long as the limit to sporting unfairness is not exceeded (OLG Hamm VersR 1999, 461).

Road accidents

§ 828 II BGB has replaced the previous case law. If the facts of § 828 II BGB are not present, the following applies:

• At the age of 7, it is expected that the right-hand drive and right-of-way rules are known and observed.
• At 9 years of age, it is expected that ade­quate distances will be maintained.
• At the age of 11 or 12, it is expected that limited visibility and darkness, traffic signs and traffic lights are taken into account.

An overview of further case groups can be found in Staudinger/Oechsler § 828 BGB

Excursus: Criticism of the case law

The so-called general capacity for insight, which is used by the courts to determine the capacity for insight, is criticized by parts of the literature. It is argued that instead of the general capacity for insight, the specific capacity for insight of the minor in question should be taken into account. This is justified with the wording of the norm and its history. The case law counters this with actual facts, on the one hand that a retro­active determination of the capacity to consent is problematic and that an expert determination would always be necessary for this, which would lead to great legal uncertainty.

Capacity for fault (Continuation)

In the specific case, the OLG Celle states that an age-appropriate developed eight-year-old has the necessary insight to recognize that he cannot look backwards for a longer period of time while driving, as this can cause dangers. The court excludes the application of § 828 II BGB for lack of a sudden situation and for lack of motorized traffic, and affirms the culpability according to § 828 III BGB.

b. Fault

In determining fault, it is necessary that “child­ren or adolescents of his or her age and developmental stage could and should have foreseen the occurrence of harm and, re­cog­niz­ing the dangerousness of their actions in the specific situation, it would have been possible for them to act in accordance with this knowledge.”

The OLG Celle affirmed this because a minor of M’s age and developmental stage must be aware that it is dangerous to look behind while driving. Since M did not behave in accordance with this awareness, she disregarded the care required in traffic, although this had been possible and reasonable for her.

4. Legal consequence: Compensation for damages ac­cor­ding to §§ 249 ff. BGB

Contributory negligence on the part of A is de­nied. As a result, A is entitled to com­pen­sa­tion for costs (in this case only € 1,448.39) and damages for pain and suffering (only € 6,000). M is also obligated to compensate for all future damages from the incident, as late damages are not excluded, and must also reimburse the necessary legal costs.

Excursus: Limitation of liability

M is liable according to the so-called “all-or-nothing principle” – i.e. like an adult. This is also criticized by the literature, namely due to the lower (mental) abilities of minors, a failure of protective and educational functions without liability limitations, a lack of financial re­stric­tions, in particular a lack of a similar starting chance in life as an adult in contrast to others, and finally the impossibility of making one’s own provisions, for example through liability insurance. Here, numerous approaches can be found, from obligatory liability insurance to a limitation of liability through the objection of abuse of rights in the case of an existentially threatening high damage caused by slight negligence with secure compensation of the injured party by one/his insurance company represented by Canaris.

Further claims against M and her parents

Apart from a claim from § 823 I, 828 III, 249 ff. BGB a claim from § 823 II in connection with § 229 StGB comes into consideration, which is unproblematic. Against the parents a claim from § 832 BGB is to be thought, however, for lack of the injury of a supervision duty to negate.

C. Practice Cases

written and translated by Ali Tahir Sen

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