OGH on the obligation to strew salt and clear a too-wide pavement

Jul 1, 2022 Benn-Ibler Rechtsanwälte

A property owner is obliged to strew salt/gravel and clear a pavement over its entire width, provided that the pavement boundary facing away from the road is not more than 3 metres away from his property. This also applies to a pavement wider than 3 metres.

The plaintiff fell due to slippery ground. The pavement is adjacent to the defendant's property. Due to the road conditions, the width varies; at one point 2.6 metres to the edge of the pavement, at other places up to 15 metres. It is not ascertainable whether the accident had occurred within a distance of 3 metres from the property boundary of the defendant. The plaintiff is now demanding compensation for pain and suffering and a declaration of liability for all future damages.

The court of first instance dismissed the claim. The Court of Appeal ruled in favour of liability based on a violation of Section 93 para 1 of the Road Traffic Act (Straßenverkehrsordnung, StVO) and thus also in favour of a duty to strew salt and clear the entire pavement if the pavement is more than 3 metres wide.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) held in this regard:

Even in earlier decisions on the 3-metre limit in the StVO, the legal limit to the neighbour is decisive for its determination. If the pavement width is more than 3 metres, an interpretation leads to the fact that the strewing and clearing obligation applies to the entire pavement. In this context, a green strip of no more than 3 metres bordering the pavement is no longer to be considered part of the property, so that the obligation to strew salt and clear is incumbent on the adjoining property owner. The Highest Administrative Court ruled in its established case law that an obligation to do so only exists within the 3-metre limit. The OGH argued on the basis of teleological considerations that it was absurd for a protective norm to divide the obligation to strew salt and clear within a pavement as soon as there was a green strip adjacent to the property.

The defendant's appeal was not to be upheld, especially since the defendant could have obtained a restriction of this obligation in individual proceedings.

OGH 2 Ob 35/22v (26.04.2022)