BGer 4A_179/2021 (amtl. Publ.)

In its decision of May 20, 2022, the Federal Supreme Court dealt with an everyday situation: the respondent was standing at a tram stop with his back to the approaching tram and was looking at his mobile phone when he suddenly entered the platform area without looking to the left . He was struck by the approaching tram and sustained serious injuries. As a result, he demanded satisfaction from the city of Zurich, as the owner of the transport company, based on Art. 40b Para. 1 EBG by means of a partial action. The lower courts had basically affirmed the liability of the city. Not so the federal court, which upheld the city's appeal against the judgment of the higher court and overturned the judgment. Before the Federal Supreme Court, it was disputed whether the city could release itself from its liability due to gross negligence on the part of the pedestrian in accordance with Art. 40c EBG (cf. E. 3.1).

The Federal Supreme Court considered that a third-party behavior only constitutes a main cause under Art. 40c EBG if the behavior has such a high degree of effectiveness that the cause set by the liable party no longer appears to be legally significant for the damage that has occurred (E. 3.2) . The accident happened at a clear place in fine weather (E. 4.3.4). In addition, the pedestrian was familiar with the area and aware of the dangerous situation. He created the danger unnecessarily. The Federal Supreme Court therefore considered the pedestrian's behavior contrary to traffic as the main cause of the accident. For this reason, it approved a discharge of the city from the liability according to Art. 40c EBG (E. 4.4).

Comment: Liability according to the EBG is a non-contractual strict liability, which the legislator has designed as strict causal liability (cf. Roger König, The new liability of the railway companies, HAVE 2013 p. 199 ff., p. 201). The fault of the owner of the railway company is therefore not a prerequisite for liability. Nor can the latter exonerate himself by proving that he had taken the necessary care. The only possibility for the owner to free himself from liability results from Art. 40c EBG. This provision must therefore under no circumstances be emptied of its meaning (cf. also BBl 2007 4493). Looking left and right before crossing a lane is considered an elementary traffic rule. In the given situation, the Federal Supreme Court rightly assessed the respondent's non-observance of these as gross negligence that interrupted causality. At the same time, it made it clear that this was not a moral reproach, but ultimately the question of the extent to which the consequences of its dangerous (operational) activity can still be attributed to the railway company.