germany traffic driving tort children
Does the right to use a road affect liability in accidents?
<p>The German traffic law is very restrictive for children on bicycles. In particular <a href="https://www.stvo.de/strassenverkehrsordnung/90-2-strassenbenutzung-durch-fahrzeuge" rel="nofollow noreferrer">Strassenverkehrsordnung §2, section 5</a> states that children up to 8 years of age are not allowed to bike on roads and need to use the pedestrian sidewalk exclusively. Now suppose a child does ride on a road and is involved in a traffic accident with a car. Suppose the child adhered to all traffic rules (apart from being on the road) and the car driver is at fault, for example bike goes straight, car turns right, collision. Does the fact that the child was not allowed to be on the road have any influence on how liability is established?</p>

<p>In Germany, a motor vehicle owner has strict liability without regard to fault for personal injuries caused by use of the owner's motor vehicle pursuant to Section 7 of the <a href="https://www.researchgate.net/profile/Krzysztof_Czarnecki3/publication/320813344_English_Translation_of_the_German_Road_Traffic_Act_Amendment_Regulating_the_Use_of_Motor_Vehicles_with_Highly_or_Fully_Automated_Driving_Function_from_July_17_2017/links/59fbbe680f7e9b9968bb5a0f/English-Translation-of-the-German-Road-Traffic-Act-Amendment-Regulating-the-Use-of-Motor-Vehicles-with-Highly-or-Fully-Automated-Driving-Function-from-July-17-2017.pdf" rel="nofollow noreferrer">Road Traffic Act</a> (also known as the &quot;StVG&quot;). This states (with some modifications from the translation linked to be more natural in English legalese):</p>
<blockquote>
<p>§ 7 Liability of the owner, unauthorized vehicle operation</p>
<p>(1)   If, during the operation of a motor vehicle or a trailer intended
to be carried by a motor vehicle, a person is killed, or the body or
health of a person is injured, or property is damaged, the owner is
obliged to compensate the injured person for the resulting damage.</p>
<p>(2)   Compensation is excluded if the accident is caused by <em>force
majeure</em>.</p>
<p>(3)    If someone uses the vehicle without the knowledge and will of the
vehicle owner, he is obliged to compensate the damage instead of the
owner; in addition, the holder remains obliged to compensate for the
damage if the use of the vehicle has been made possible through his
fault. Sentence (1) does not apply if the user is employed by the
vehicle owner for the operation of the motor vehicle or if the vehicle
has been left to  him by the  owner.  Sentences (1) and (2) apply
accordingly to the use of a trailer.</p>
</blockquote>
<p>It is conceivable that someone else (for example, a non-owner of a motor vehicle who was driving the vehicle or interfered with the driver's operation of the motor vehicle) could also have liability under Section 823, ¶ 1 of the <a href="https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0751" rel="nofollow noreferrer">German Civil Code</a> (also known as the &quot;BGB&quot;)  which is the general tort liability statute in Germany in personal injury cases, when an exception does not apply, and is roughly parallel to a negligence claim under U.S. law, or under Section 823, ¶ 2  of the German Civil Code, which roughly corresponds to a negligence <em>per se</em> claim under U.S. law for civil liability arising from a statutory violation. These say:</p>
<blockquote>
<p>Section 823 - Liability in damages</p>
<p>(1) A person who, intentionally or negligently, unlawfully injures the
life, body, health, freedom, property or another right of another
person is liable to make compensation to the other party for the
damage arising from this.</p>
<p>(2) The same duty is held by a person who commits a breach of a
statute that is intended to protect another person. If, according to
the contents of the statute, it may also be breached without fault,
then liability to compensation only exists in the case of fault.</p>
</blockquote>
<p>Liability under Section 823 also requires a showing of:</p>
<ul>
<li><p>Haftungsbegründende Kausalität: causation between act or omission of injurer and said injury / violation</p>
</li>
<li><p>Rechtswidrigkeit: unlawfulness / illegality</p>
</li>
<li><p>Verschuldensfähigkeit: legal capacity to be responsible for tort, i.e. legal age and mental capacity (see sections 827 and 828 German Civil Code). These state:</p>
</li>
</ul>
<blockquote>
<p>Section 827 - Exclusion and reduction of responsibility</p>
<p>A person who, in a state of unconsciousness or in a state of
pathological mental disturbance precluding free exercise of will,
inflicts damage on another person is not responsible for such damage.
If he has temporarily induced such a state in himself with alcoholic
beverages or similar means, he is then responsible for damage that he
unlawfully causes in this state as if he were responsible because of
negligence; responsibility does not ensue if he came into this state
without fault.</p>
<p>Section 828 - Minors</p>
<p>(1) A person who has not reached the age of seven is not responsible
for damage caused to another person.</p>
<p>(2) A person who has reached the age of seven but not the age of ten
is not responsible for damage that he inflicts on another party in an
accident involving a motor vehicle, a railway or a suspension railway.
This does not apply if he intentionally caused the injury.</p>
<p>(3) A person who has not yet reached the age of eighteen is, to the
extent that his responsibility is not excluded under subsection (1) or
(2), not responsible for damage he inflicts on another person if, when
committing the damaging act, he does not have the insight required to
recognise his responsibility.</p>
</blockquote>
<ul>
<li><p>Verschulden: fault, i.e. wilful intent (Vorsatz) or negligence (Fahrlässigkeit)</p>
</li>
<li><p>Kausaler und zurechenbarer Schaden: causal and attributable damage; see section 249 et seqq. German Civil Code</p>
</li>
</ul>
<p>There are also at least two important factors that would be considered affirmative defenses in U.S. law:</p>
<ul>
<li>Mitverschulden: contributory negligence of the injured person reduces the tort claim, in extreme cases to nil; see section 254 German Civil Code. This states:</li>
</ul>
<blockquote>
<p>Section 254 - Contributory negligence</p>
<p>(1) Where fault on the part of the injured person contributes to the
occurrence of the damage, liability in damages as well as the extent
of compensation to be paid depend on the circumstances, in particular
to what extent the damage is caused mainly by one or the other party.</p>
<p>(2) This also applies if the fault of the injured person is limited to
failing to draw the attention of the obligor to the danger of
unusually extensive damage, where the obligor neither was nor ought to
have been aware of the danger, or to failing to avert or reduce the
damage. The provision of section 278 applies with the necessary
modifications.</p>
</blockquote>
<ul>
<li>Verjährung: German statutes of limitation; tort claims usually are barred after 3 years, but it is sometimes difficult to determine from what moment on the clock starts ticking.</li>
</ul>
<p>With regard to a young child, in a suit against a wrongdoer other than a strict liability claim against the motor vehicle owner, the issue is whether using the bicycle where it wasn't allowed constituted contributory negligence under Section 254 of the German Civil Code, and whether, even if it would normally constitute contributory negligence, the child's lack of capacity under sections 827 and 828 German Civil Code would bar a finding of contributory negligence. I suspect, but do not have a more reliable authority to confirm, that under the general principles of the relevant statutes that a child under the age of ten cannot be penalized for contributory negligence in a car accident case brought against someone other than the owner of the vehicle.</p>
<p>There are also questions, which I don't have sufficient background to answer, over the mechanics of how an injury to a child is litigated from a civil procedure perspective (e.g. in the child's name through a guardian, by a parent in their own name for the harm done to their child, etc.) and the extent to which negligence of a parent or guardian, for example, in failing to supervise a child, can constitute contributory negligence.</p>
<p>For example, I don't know if the person sued under Section 823 for causing the accident in addition to the suit against the motor vehicle owner could join a parent as a third-party in order to allocate liability to the parent for failing to carry out a legal duty to keep the child off the street under Section 823(2).</p>
<p>But none of those questions are very important in the case of a car accident, because the strict liability of the owner of the vehicle is usually sufficient to obtain compensation because the owner would typically have insurance sufficient to cover the claim for a single child or small number of children's injuries.</p>
<p>I also don't know the procedural details of how car insurance coverage and health insurance coverage are coordinated in Germany, and what the German equivalent of the collateral source rule looks like, i.e. whether the medical expenses that can be sued for are before or after health insurance and whether the insurance company has a subrogation claim against the car owner or other party at fault.</p>
