Are children a liability or a privilege

BGH strengthens children's liability privilege

by Sven Kuhnert, published on July 10, 2008

In its decision of March 11, 2008 - VI ZR 75/07 - the BGH makes it clear that the liability of a child in road traffic according to § 828 (2) BGB can also be ruled out if the damage occurs in connection with stationary traffic.

The BGH was evidently compelled to relativize its more recent jurisprudence, according to which the liability privilege of children (from 7 to under 10 years of age) according to Section 828 (2) BGB does not apply if there is no typical overburdening situation. Specifically, the liability privilege of children who hit a properly parked vehicle with a kickboard or bicycle was denied.

The current decision was based on a case in which a child riding a bicycle collided with a parked car, on which doors were open and people had moved in the area of ​​the open doors. Reason enough for the BGH to recognize a typical overwhelming situation.

The application of Section 828 (2) BGB will therefore always be specific to individual cases, particularly in the case of stationary traffic.

But if the legislature and the BGH assume that children are only 10 years of age and older to correctly assess the dangers of road traffic, then this should have a decisive effect on the parents' duty of supervision in the interests of the injured party. Strictly speaking, this expresses a ban on exposing children to potentially dangerous situations, such as letting them ride a bicycle. For the injured party this means: make parents and other persons responsible for supervision liable according to § 832 BGB!

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Ickes comments on the permanent link

So this conclusion is - with all due respect - breathtaking and absurd. Of course, the pedagogically justified freedom of the children must remain in the current scope. The risk of third parties being held liable does not change the pedagogically justified assessment that children need freedom - within the previously recognized limits, including on the road! The interpretation of Section 828 (2) of the new version of the German Civil Code (BGB) should not restrict the freedom of children or place a greater burden on parents, but rather place the children's risk on broader shoulders. - What Mr Kuhner wants is appropriate and balanced through § 2 Paragraph 5 StVO and § 3 Paragraph 2 a StVO: Children up to 8 must use the sidewalks; Whether on the sidewalk or on the roadway, there are special rules of consideration for children!

Sven Kuhnert comments on the permanent link

It is less important to me to restrict children's freedom. Children also have to learn to deal with dangers. However, the question of whether the injured party remains seated on their damage if the child is not liable as the cause of the damage is of practical relevance. So the thought is, how can the injured party be helped?

corax comments on the permanent link

Mr. Kuhnert,

Quote: "So the idea is, how can the injured party be helped?"

have you ever had bird shit on your car?

Shit happens!

Called itself, I think: "General life risk."

DrFB comments on the permanent link

Dear Mr. Kuhnert,

Your approach is wrong. It is still understandable that the lawyer of an "injured party" thinks that way. Viewed objectively, however, one must ask whether a liability privilege for children still makes sense if the liability now falls on the parents instead of the children.

In fact, it is not the children that are the problem, but the dangers posed by vehicles, which can only be reduced by the behavior of adults. The legislature rightly made this the starting point for the liability privilege.

Incidentally, you give the "injured" stones instead of bread. Because even the parents of even younger children are not always liable if their child is out on a bicycle and has an accident. So how one can come to the conclusion that the parents of older children should suddenly be held liable remains a mystery to me.

Ickes comments on the permanent link

Dear Mr. Kuhnert,
a few days apart, I am pleased that you responded so kindly to my harsh comment. - In the matter - I think - DrFB hits the point, whereby it should be added that the liability of the parents is a fault liability. It is therefore not acceptable to urge them to open up spaces and then let them be held liable for a (then probably permissible) risk. The situation is different for drivers: unlike having and "holding" children, driving is only permitted under strict liability.
Otherwise warm greetings!

DrFB comments on the permanent link

To my comment from 07/12/2008:

glA. Seal: “Corresponding supervision” about cycling children, SVR 2008, 452 (issue 12). I want to quote a few sentences here:

"A change in the previous practice [meaning the judgments on the duty to supervise] is not indicated because the new regulation of Section 828 (2) BGB largely excludes liability for children under 10 years of age in an accident with a motor vehicle. The legislature wanted through the new version only take into account the typically still existing deficits in the traffic behavior of children of the age group mentioned; it was not about increasing the liability of their parents for breach of duty of supervision and thus only shifting the liability risks and burdens within the family therefore accept. "

In particular, the author is gratifyingly clear that priority is given to the natural need of children for independent mobility and their urge to move, which parents have to allow for adequate freedom due to their age, over a widespread fully comprehensive mentality, including (too) fast driving drivers.

DrFB comments on the permanent link

From today you can in jurisPR-VerkR 18/2009 note 1 "Presentation and burden of proof for excessive demands of a child in motorized traffic according to § 828 Abs. 2 Satz 1 BGB" (author Herbert Lang, RA) a short summary of the previous case law of the Find BGH on the subject. The comment on the judgment of the Federal Court of Justice of June 30th, 2009 - VI ZR 310/08 on this burden of presentation and proof is hung up - a threshold before the compensation, which is then likely to be too high for many "injured parties". The result can only be to take out fully comprehensive insurance or just put up with a few dents and scratches on your own car.