OGH: Liability in Snow Removal and Disposing

Mar 3, 2023 Benn-Ibler Rechtsanwälte GmbH

Failure to properly deposit snow after its removal may lead to liability if a victim suffers a fall adjacent to the zone to be cleared.

The plaintiff is a tenant in a public housing complex. On 07 March 2018, the plaintiff fell on a slippery patch of ice. At the time, the defendant was providing winter snow removal services. On the day before the plaintiff’s fall, one of the defendant’s employees had removed the snow and deposited it in such a way that, on account of rising temperatures, the snow had melted onto the area where the fall later occurred and froze over again during the night. The plaintiff asserted damages for pain and suffering due to breach of a contract with protective effect in favour of third parties and demanded a decision regarding liability for future damages. The defendant argued that the site of the fall was no longer within the company’s scope of the responsibility for road clearance and that Section 1319a of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) did not apply, as the defendant was not responsible for upkeep of this area.

The court of first instance dismissed the claim. The court of appeal upheld the dismissal of the claim because, among other reasons, it is irrelevant whether the employee had properly disposed of the snow, as it was not certain whether the slippery spot belonged to the area to be cleared.

However, the Austrian Supreme Court took a different view:

A legal person is liable in tort only within narrow limits for the conduct of their employees. According to Section 1315 ABGB, an employee would have to be either mentally unfit or known to be dangerous. However, neither of these factors could be established in this particular case. Improperly deposing of snow does not lead to a loss of liability, as this results in the creation of an additional source of danger. Anyone who creates a source of danger or allows it to exist in their area of responsibility is required to take precautions to prevent damage. The defendant's representative was also required to be aware of such sources of danger, all the more so as a higher standard of care is to be applied to such employees according to Section 1299 ABGB. The Austrian Supreme Court therefore upheld the plaintiff's appeal.

OGH 2 Ob 198/22i (13.12.2022)