Strict liability

Strict liability / Gefährdungshaftung

November 03, 2023

Imagine the following scene: A cat attacks a full-grown golden retriever, or at least it tries to. The dog gets scared and hides behind its owner. In this leap to supposed safety, the dog's leash snaps so hard on the owner's finger that she emerges from this slapstick moment with a broken finger. This was the experience of our student assistant Lara, who was allowed to deal more intensively with so-called animal owner liability in this way. The cat had simply "gone off" on the dog and the owner. Actually, it was a clear case: the cat was to blame. However, the question of a possible contributory negligence on the part of the dog owner, who did not let go of her animal's leash in order to fulfil her duties, soon arose. One could therefore argue that this was causal for the finger fracture. The question therefore arises as to who is liable for what in such a case.

Animal owner liability section 833 of the German Civil Code (BGB)

Normally, according to section 823 BGB, someone who intentionally or negligently injures the life, body, health, freedom, property or other right of another unlawfully is obliged to compensate the other for the resulting damage. Section 823 BGB is a claim for damages that can be asserted on the basis of tortious acts and regulates compensation for all damage that a person unlawfully causes to another person or to another thing. In order for liability to arise, there must in principle be fault.

However, the situation is different for the animal owner. According to section 833 BGB, the animal owner is liable for damage caused by his animal even if he is not at fault. Liability that does not require fault is also called strict liability. This no-fault liability of the animal owner is justified by the fact that behaviour of an animal that cannot be fully controlled should be attributed to the person who derives a "benefit" from the animal.

According to the Federal Supreme Court, the criterion for determining the animal owner's liability is the realisation of a typical animal danger. For this, the injury must be based on an "unpredictable and independent behaviour corresponding to the animal's nature" (BGH, judgement of 31 May 2016 - VI ZR 465/15). The increased liability is justified by the confrontation of the environment with the animal, which cannot be completely controlled by the owner due to the animal's self-will.

However, it does not matter whether the injury was caused by the animal. Rather, contributory negligence is sufficient, whereby the animal merely has to contribute to the injurious circumstance. Even mere indirect causation can give rise to liability on the part of the animal owner. For example, it is sufficient that an animal blocks the way on a road and thus causes an accident (OLG Saarbrücken 17.1.2006 - 4 U 615/04). Furthermore, the animal owner is also liable if the injured party injures himself through his own behaviour, but the animal has caused the injuring action. This is the case, for example, if a person flees from an animal and falls in the process. In this case, however, the self-injurious behaviour must be in proportion to the danger.

Self-inflicted responsibility through, for example, provocation of the animal must be taken into account in the context of contributory negligence within the meaning of section 254 BGB when determining the amount of compensation, but does not exclude liability from the outset. Merely involuntary behaviour, such as infecting another animal with a disease, cannot be covered by liability, as there is a lack of unpredictable behaviour. Thus, the pollination of flowers by neighbouring bees cannot give rise to animal owner liability (BGH, judgement of 24.01.1992 - V ZR 274/90)).

An exception to animal owner liability also arises from section 833 sentence 2 BGB if the damage is caused by a domestic animal that serves the occupation, gainful employment or maintenance of the animal owner. This mainly includes "farm animals", such as a farmer's cattle. In this case, the animal owner can exculpate himself, i.e. present exculpatory evidence that he is not to blame for the animal's behaviour.

Examples of further strict liability

A further strict liability offence is regulated in section 7, (1) of the Road Traffic Act (StVG). According to this, the owner of a motor vehicle who causes an infringement of a legal right must compensate for the resulting damage. Here, too, liability is linked to the operational risk of a motor vehicle, according to which liability is borne exclusively by the owner of the vehicle. If the driver and the owner differ, the liability of the driver results from section 18 StVG. The strict liability is linked to the fact that the operation of a motor vehicle creates a particular source of danger for which responsibility must be assumed.

According to section 1 of the Product Liability Act (ProdHaftG), the manufacturer is also liable for damages if a defect in his product causes death, bodily injury or damage to property. The manufacturer is thus also liable if he has not intentionally or negligently manufactured a defective product. However, section 1 (2) and (3) ProdHaftG also regulate when liability is excluded, such as when the manufacturer did not place the product on the market himself due to theft, or when the damage occurred after the product was placed on the market due to improper repair.

Presumption of fault with possibility of exculpation

The BGB knows other legal institutions where fault is generally presumed. The difference to strict liability, however, is that a possibility of exculpation is granted. The presumption of fault can be rebutted in these cases. The possibility of exculpation of the owner of the farm animal according to section 833 (2) BGB has already been described. Another possibility of exculpation is for the person responsible for supervision according to section 832 (1) BGB. The latter is liable for damage caused by a supervised person, unless he has sufficiently fulfilled his supervisory duties. Particularly important is also the liability for the vicarious agent according to section 831 BGB, according to which the principal is generally liable unless he can show that he observed the due care required in the course of business when selecting the person to act on his behalf. Similarly, in the case of an animal guardian who takes over the supervision of an animal. This person is not liable under section 834 BGB if he or she has acted with due care in the supervision.

In the case described at the beginning of this article, the accident happened right in front of the cat owner's front door. The cat owner had obtained pet owner insurance, which covered the damages and paid an appropriate compensation for pain and suffering. A long legal dispute was therefore not necessary. The owner was clearly at fault.