OGH: Same Rules for E-Scooters and Bikes?

Oct 4, 2024 Benn-Ibler Rechtsanwälte

The answer to the question of who has the right of way and who has to stop at a traffic-light controlled intersection lies in Section 38 of the Austrian Road Traffic Act (Strassenverkehrsordnung, hereinafter StVO).

In the case at hand, at a traffic-light controlled intersection, there was a collision between the rider of an electric scooter (the plaintiff), who was crossing the pedestrian crossing on a green light, and a truck that was turning right at the intersection, also on a green light.

The plaintiff was seeking damages in excess of EUR 120,000 for serious injuries sustained in the accident.

As the plaintiff had failed to look out for other traffic, the court of first instance concluded that the claim was only half justified. It also stated that the e-scooter wasn’t considered to be a vehicle, and that the plaintiff was in breach of the general duty to yield under Section 88b(3) of the StVO.

The court of appeal overturned the decision and ordered a new decision by the court of first instance after a supplementation of the proceedings. It classified the e-scooter used by the plaintiff as a vehicle within the meaning of Section 2(1)(19) of the StVO. In Section 88b of the StVO, lawmakers have expressed their intention to subject e-scooter riders to the rules applicable to cyclists, so that the right-of-way rules of Section 19(5), second sentence, and (6a) of the StVO apply.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) added the following:

According to Section 38(4) of the StVO, cyclists as (authorised) road users have the right to cross the road unhindered and without danger when the traffic light for them is green, irrespective of the presence of a cyclist crossing. This also applies to e-scooter drivers, because according to Section 88b(1) of the StVO, they are considered (rightful) users of the respective traffic lane.

Consequently, the general duty to give way for reasons of road safety does not apply within the scope of Section 38(4) of the StVO, which is why the plaintiff was not at fault.

OGH 2 Ob 92/24d (25 June 2024)