Traffic safety obligation

What is the traffic safety obligation?

The duty to ensure safety is a central concept in German civil law and describes the duty of an owner, operator or holder of a source of danger to take precautions to prevent damage to third parties. This duty arises from the general principle of Section 823 (1) of the German Civil Code (BGB), which regulates liability for damage resulting from a breach of the duty to maintain safety. Put simply, anyone who creates or maintains a hazardous situation is responsible for ensuring that it does not harm uninvolved third parties.

The duty to ensure public safety requires that all appropriate and reasonable measures are taken to identify and eliminate hazards that could arise in the course of “normal use”. This duty extends to owners of buildings, properties, public facilities, companies and even event organizers. Failure to comply with the duty to ensure public safety can lead to considerable liability claims if third parties suffer damage due to negligence or inadequate safety measures.

Development in German law

In Germany, the modern understanding of the duty to maintain road safety developed primarily in the course of industrialization in the 19th century. With the growth of cities, the increase in traffic and the emergence of new industrial hazards, the need for legal regulation became clear. In particular, court rulings on accidents in public spaces led to the development of the concept of the duty to maintain road safety in case law.

Duty to ensure public safety in the German Civil Code

With the introduction of the German Civil Code (BGB) in 1900, the concept of the duty of care was enshrined in law in Section 823 of the BGB. This stipulates that anyone who intentionally or negligently injures the life, body, health, freedom, property or any other right of another person is obliged to compensate the resulting damage. In case law, this paragraph has been extended to also cover cases of breach of the duty to maintain safety.

Over the course of the 20th century, the duty to ensure safety was further developed and differentiated by the courts. The courts developed criteria to determine when and to what extent road safety obligations exist and how far the responsibility of the party obliged to ensure safety extends.

Examples of the duty to maintain road safety

The duty to ensure public safety applies in a variety of contexts. It applies to both private and public areas and can be applied to a wide variety of situations and circumstances. Some typical examples are listed and explained below.

Duty to ensure public safety for real estate and land: Owners of real estate and land are obliged to ensure that their buildings and areas do not cause damage to third parties. This applies in particular:

Snow clearance and gritting obligation: During the winter months, homeowners are responsible for clearing snow and ice from sidewalks in front of their property. This obligation varies depending on the municipal bylaws, but in general, clearing must take place in the early morning hours to prevent accidents.
Building maintenance: Buildings must be regularly checked for defects to prevent damage caused by falling roof tiles or dilapidated facades. Inadequate lighting in stairwells can also lead to accidents that the owner should have avoided.
Dangers on the property: Holes, unsecured excavations or damaged paths on your own property must be secured to protect third parties. For example, if there is an unsecured hole on the property, a pedestrian could fall and injure themselves, for which the property owner could be held liable.

Duty to maintain road safety in road traffic

There are also numerous road safety obligations in road traffic that affect different responsible parties:

Duty of road authorities to ensure road safety: Local authorities or private road operators are responsible for ensuring that roads are in a safe condition. This includes repairing potholes, cleaning dirty roads and gritting in icy conditions. The installation and maintenance of traffic signs is also part of this duty.
Construction companies: Construction sites on roads must be properly secured and marked to prevent accidents. Warning signs, barriers and lighting are essential measures to ensure the protection of road users.

Duty to ensure road safety at events

Organizers of public events, such as concerts, markets or sporting events, have a special responsibility to ensure that no dangers arise for visitors. This includes

Securing stages and grandstands: It must be ensured that all stages, grandstands and other structures are stable and safe. A collapse would cause serious damage for which the organizer would be liable.
Evacuation plans: At large events, clear emergency plans and evacuation routes must be in place so that visitors can leave the site safely in the event of an emergency.
Safety on the premises: Tripping hazards, unsecured cables or other obstacles must be removed or clearly marked. This is particularly important in dark areas or on uneven terrain.

Duty of care in companies

Employers and companies are responsible for the safety of their premises and must ensure that neither employees nor visitors are endangered. This applies to both internal areas and access from outside. The most important areas include

Safety precautions in production halls: Machines must be serviced regularly to prevent accidents. Safety devices must also be in place to prevent employees or visitors from entering dangerous areas.
Fire protection: In office buildings or production facilities, a functioning fire protection system must be installed to save lives in an emergency. This includes fire alarms, fire doors and well-marked escape routes.
Access safety: Slippery floors, inadequately secured stairs or defective handrails can lead to accidents that must be avoided.

Legal obligations and liability

The duty to ensure road safety is not only a moral obligation, but also a legal one. Anyone who fails to comply with this duty can be held liable if a third party suffers damage. The legal basis for this can be found in the German Civil Code (BGB) and in special statutory regulations.

German Civil Code (BGB)

The most important paragraph in connection with the duty to maintain safety is Section 823 of the German Civil Code (BGB). This states: “Anyone who intentionally or negligently injures the life, body, health, freedom, property or any other right of another person is obliged to compensate the other person for the resulting damage.”

This means that anyone who breaches a duty of care can be held liable if third parties are harmed by this breach of duty. Liability includes both material and immaterial damages (e.g. compensation for pain and suffering).

Negligence and intent

The decisive factor for liability within the scope of the duty to ensure public safety is whether the breach of duty was committed intentionally or negligently.

Intent: A person acts with intent if they consciously and willingly accept the risk of endangering third parties. However, intent is rarely found in the context of the duty to ensure public safety, as in most cases people do not deliberately act to endanger third parties. Intentional conduct could be found, for example, if an owner knows about dangerous defects in their building but deliberately ignores them and does not take any measures to eliminate the source of danger.
Negligence: Negligence is far more common, which according to Section 276 of the German Civil Code (BGB) exists when the necessary care is disregarded. Negligence is divided into gross and simple negligence:
Simple negligence: This occurs when someone fails to exercise the due care that would be expected of a reasonably cautious person in the same situation. An example would be a homeowner who does not grit the road in good time when it is icy, even though this would have been foreseeable given the weather conditions.
Gross negligence: Gross negligence means that a person disregards the care required in traffic to a particularly serious degree. This could be the case if a building contractor fails to take safety measures on a construction site despite obvious dangers.

Burden of proof

A key question in cases involving the duty to ensure safety is who bears the burden of proof. Under German civil law, the injured party must generally prove that the party obliged to ensure safety has breached its obligations. However, case law does provide certain exemptions that make it easier for injured parties to assert a claim if the risk was obvious.

Contributory negligence

A special feature in cases of the duty to ensure safety is the so-called contributory negligence according to § 254 BGB. If the injured party has breached a duty of care themselves and has thereby contributed to their damage, the duty to pay compensation on the part of the party responsible for road safety can be reduced or even waived. A classic example would be a pedestrian who is not careful enough in obviously slippery conditions and slips. If it can be proven that the pedestrian should have anticipated the danger, their own breach of duty of care could reduce the claim for damages.

Road safety obligations in everyday life: In-depth examples

In order to better understand the diversity and specific areas of application of the duty to maintain safety, it is worth taking a closer look at various areas of life in which this duty plays a central role.

The duty to ensure road safety in public spaces

Public spaces offer numerous sources of danger that need to be secured in order to prevent damage to the general public. Typical cases include

Playgrounds: Cities and municipalities that maintain playgrounds must ensure that they are regularly maintained. Play equipment must not have any dangerous defects and the flooring must meet safety requirements in order to minimize the risk of injury to children.
Parks and green spaces: Tree inspections are another example of the duty of care in public spaces. Local authorities are obliged to regularly check trees for stability and remove rotten branches that could injure passers-by. It would be a case of gross negligence if no measures were taken to check trees despite known storm damage.
Public roads and footpaths: In addition to the municipalities, which must ensure the safety of roads and sidewalks, residents also have a duty of care in certain cases. In winter in particular, many homeowners are responsible for clearing snow and ice from the sidewalks in front of their properties. Failure to do so often leads to liability cases when passers-by slip and injure themselves.

Duty to ensure road safety at events

The safeguarding of events is an area in which the duty to ensure road safety is particularly strictly regulated, as large gatherings of people pose an increased risk. Here are a few examples:

Music festivals: The organizers must ensure that all areas of the festival site, from stages to grandstands to sanitary facilities, are designed in such a way that there is no danger to visitors. Overcrowding, missing escape routes or inadequate safety precautions can lead to tragic accidents for which the organizers are held liable.
Sporting events: At sporting events, such as soccer matches or marathons, the organizers have a special responsibility to protect both participants and spectators. This includes securing the competition venues and providing emergency plans and first aid measures.
City festivals and Christmas markets: Such events, which often take place in public spaces, are also subject to strict regulations regarding traffic safety. Signage, barriers and emergency exits must be clearly visible and accessible. Particularly at markets with open fires or fairground rides, care must be taken to ensure that all safety precautions are taken to minimize hazards.

Duty of care in the residential environment

The duty to ensure public safety also plays a role in the private residential environment. Typical cases of application relate primarily to rented apartments and condominiums:

Communal areas in apartment buildings: Landlords and property managers are responsible for the safety of communal areas such as stairwells, courtyards or cellar corridors. Defective lighting, loose steps or unsecured cellar doors can lead to liability claims if tenants or visitors are injured as a result.
House rules and tenant obligations: In many tenancy agreements, the duty to ensure public safety in certain areas is transferred to the tenants. For example, the duty to clear and grit snow in winter can be transferred to the tenants if this is regulated accordingly in the tenancy agreement. Tenants must then ensure that the sidewalk in front of the building is safe.
Structural alterations and building sites: When making alterations or renovations to the house, the owner must ensure that building site areas are well secured. This applies in particular if scaffolding is on public roads or construction machinery is obstructing access. Construction work in private areas must also be secured in such a way that accidents are avoided.

Preventive measures to fulfill the duty to maintain road safety

Owners, operators and event organizers must take preventative measures in order to comply with their duty to ensure public safety and minimize liability risks. This includes the regular inspection and maintenance of sources of danger, the documentation of safety measures and compliance with legal requirements.

Regular checks and inspections: One of the most important measures for fulfilling the duty to ensure public safety is the regular inspection of sources of danger. Owners of buildings, roads or facilities must regularly inspect them for damage, defects or potential hazards:
Building inspections: Building owners should regularly check the condition of facades, roofs and stairwells in order to identify potential risks at an early stage. An inspection is particularly advisable after extreme weather events (storms, hail).
Tree inspections: Public and private operators of parks or properties with trees are obliged to check them regularly for deadwood and stability. Particularly old and diseased trees must be pruned or felled in good time.
Street and sidewalk cleaning: Municipalities and cities must ensure that roads and sidewalks are clean and in a safe condition. Potholes, slippery leaves or unsecured construction sites can quickly become liability traps if appropriate measures are not taken.
Documentation of safety measures: Complete documentation of all traffic safety measures is essential in order to be able to prove that the party responsible for safety has fulfilled its obligation in the event of damage:
Logging of maintenance work: Repairs, maintenance or inspections should always be documented and archived. In the event of damage, this serves as proof that the owner has fulfilled their obligations.
Snow clearance logs: In winter, it can be useful to document snow clearance in order to be able to prove that snow was cleared and gritted in good time in the event of a fall.

Conclusion

The duty to ensure safety is a central component of German civil law and aims to protect people and their property from avoidable dangers. It extends to numerous areas of life and business, from private properties and public spaces to commercial facilities and events. Owners, operators and event organizers must always take appropriate precautions to prevent damage caused by unsafe conditions or sources of danger.

Legal implications of the duty to ensure public safety
The duty to ensure public safety is not only a moral obligation, but also has strong legal foundations. The German legal system has created clear liability regulations in Section 823 of the German Civil Code (BGB) to give injured parties the opportunity to assert claims. Anyone who neglects the duty to ensure road safety risks being held liable for damage caused by the breach of this duty.
Particularly in a modern society in which life is becoming increasingly complex and interaction between different stakeholders – such as companies, municipalities and private individuals – is growing, the importance of the duty to ensure road safety is increasing. Whether in public spaces, on private property, at events or in the working environment: wherever people may encounter potential hazards, it is necessary to take preventive measures to minimize these dangers.
The role of the courts
In recent decades, case law has made a significant contribution to the concretization of the duty to ensure safety on the roads. Many of today’s regulations and standards for the assessment of road safety obligations are based on court rulings that have dealt with specific cases of damage. In individual cases, the courts examine whether and to what extent a duty to maintain safety has been breached and whether this breach was causal for the damage that occurred.
The decisive factor here is the balance between reasonable measures and the proportionality of the precautions taken. In practice, this means that a duty to ensure public safety only extends as far as is economically and organizationally reasonable. It cannot be expected that every potentially conceivable damage will be prevented, but what is necessary under normal circumstances to avert danger must be done.
International comparison of the duty to ensure public safety
Other legal systems also have comparable concepts for the duty to ensure public safety, albeit under different names. In many European countries and the USA, there are similar regulations that oblige owners and operators to take precautions to protect the general public. In the USA, for example, the concept of the “duty of care” is widespread, which includes similar duties of protection to the German duty to maintain safety. While liability regulations vary from country to country, the principle that sources of danger must not be left uncontrolled remains a universal legal principle.

Responsibility in modern society

The duty to maintain safety plays an indispensable role in today’s society, as it shapes both daily interaction and the legal framework for the protection of health and property. It requires anyone who creates or maintains a potential source of danger to exercise the necessary care to prevent damage.

For private households, companies and public institutions, this means that they are not only responsible for the condition of their buildings, roads or areas, but also for ensuring the safety of third parties. Failure to do so can have far-reaching legal and financial consequences, especially if accidents could have been avoided.

At the same time, the duty to ensure public safety is a dynamic concept that evolves with the demands of modern society. Technological advances, new construction methods and changing social conditions mean that the requirements for the duty to maintain safety are also constantly changing. It remains one of the central tasks of lawyers, judges and legislators to continuously develop this concept and adapt it to new circumstances.

Prevention and legal protection

The most important lesson for owners, operators and event organizers is to take proactive measures to comply with their duty to ensure public safety. Regular inspections, maintenance and proper documentation of the measures taken are crucial in order to be able to prove in the event of damage that everything reasonable has been done to avert danger.

In addition, legal protection should not be neglected. Insurance policies that cover possible claims can protect against considerable financial burdens in the event of an emergency. Liability insurance in particular, which is tailored to the specific risks of real estate or event operators, offers important support here.

The future of the duty to maintain road safety

Looking to the future, it can be expected that the demands on the duty to maintain road safety will continue to increase. This applies in particular to the areas of digitalization, smart cities and increasing automation.

Smart cities: In the future, cities will increasingly rely on digital technologies to control traffic flows, monitor buildings and identify safety risks in real time. In terms of traffic safety, this means that the possibilities for the early detection of hazards will increase, while at the same time the expectations on those responsible to use modern technologies for hazard prevention will also rise.
Automation and robotics: With increasing automation, for example through self-driving vehicles or robotics in industry, the requirements for road safety obligations are also changing. New technologies require new safety precautions to minimize potential risks arising from technical failure or malfunctions.
Climate change and natural hazards: Climate change is leading to an increase in extreme weather events, which brings with it new challenges for traffic safety. Heavy rain, storms and heatwaves require additional safety measures, particularly in public spaces and when securing buildings.

Conclusion

The duty to ensure public safety is an essential component of German civil law that has far-reaching effects on all areas of life. Its roots lie deep in the legal tradition and have developed over time into a differentiated and comprehensive concept. Whether in a private, public or business environment, compliance with the duty to maintain road safety requires constant vigilance in order to minimize risks to third parties and prevent damage. Those who take this duty seriously and regularly take preventative measures not only protect others, but also themselves from legal and financial consequences.

In conclusion, it can be said that the duty of care remains of crucial importance in a complex and interconnected world. It requires a sense of responsibility, diligence and a willingness to recognize and eliminate hazards at an early stage. This is the only way to create a safe and legally protected environment in which people can live and work without unnecessary risks.