Unlocked Terrace Door – Is It Covered by Insurance?

Nov 17, 2023 Benn-Ibler Rechtsanwälte

Leaving the house with the terrace door unlocked for several hours does not always constitute gross negligence, according to the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH). If it is a single incident, it cannot be considered gross negligence.

In December 2019, there was a burglary at the home of the two complainants. Both left the house at around 9:00 am and returned together at around 10:00 pm. The perpetrator or perpetrators gained access to the house through a terrace door, which was not locked. The door can be locked from the inside and has a fixed knob on the outside. The complainants were aware of the fact that a burglary had already been committed in the immediate vicinity of their house on an earlier date.

There is a household insurance policy in place between the plaintiffs and the defendant as the insurer. The obligation to keep the apartment locked is an obligation on the part of the plaintiffs. The insurance contract provides for the release of the defendant from liability in the event of a grossly negligent or intentional breach of this obligation.

The plaintiffs’ claim against the defendant was for compensation for the damage. They argued that it was a one-off oversight and that any breach of duty was only slightly negligent.

The OGH made the following considerations in this respect:

In insurance contract law, gross negligence generally occurs when even the simplest, most obvious considerations are not made and measures are not taken that should be obvious to everyone. In addition, this breach of due diligence must also be subjectively the most severe, taking into account all the circumstances of the specific case. If the policyholder forgets to lock the terrace door once, this is not subjectively the most severe breach of duty.

The plaintiffs’ argument, however, that the burglary would have occurred whether the door was locked or not is irrelevant. The OGH emphasised that a properly locked door offers a much higher level of protection against burglary, as it takes much more force to break it down.

7 Ob 59/23m (30 August 2023)