OGH: Warning sign does not remedy failure to maintain road

Feb 24, 2021 Benn-Ibler Rechtsanwälte

The mere posting of a general warning that winter maintenance will not be carried out cannot, as a rule, exclude the liability of the person responsible for the maintenance of the path.

In the present case, the defendant, who runs a municipal cemetery, put up signs at the entrance doors to the cemetery saying "No winter service". For years, the defendant had only provided winter services on special holidays and during funerals. The plaintiff fell on an icy surface and suffered injuries.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) ruled that merely maintaining the roads for religious holidays and funerals did not meet the public's need for road maintenance and affirmed the cemetery operator's liability. The defendant was not entitled to refrain from any winter maintenance outside of specific occasions.

At least the entrances to the graves should be gritted or cleared at regular intervals. In addition, signs should be put up informing the visitors of the cemetery about the times when they can expect gritted or cleared paths, so that they can adjust their behavior accordingly. Merely pointing out that winter maintenance is not carried out does not correspond to what is objectively reasonable with regard to a path in a publicly accessible cemetery. Deliberately leaving the paths in an icy condition was grossly negligent.

In addition, however, the OGH also accused the plaintiff of carelessness in her own affairs and affirmed contributory negligence in a ratio of 1:1.

OGH 6 Ob 117/20d (17.12.2020)