The liability for black ice accidents of pedestrians because of Violation of the obligation to clear and grit are common knowledge. But what has it with the duty of airfield operators to ensure traffic safety and what exactly is included?
This article is not intended to unsettle anyone – in the Opposite. It should inform about the risks and related obligations, so that those responsible can behave accordingly, because then has also no one has anything to fear.
Basis of claim BGB
§ Section 823 of the German Civil Code (BGB) stipulates that the person who “intentionally or negligently endangers the life, limb, or Violates the health, liberty, property or other right of another, is obligated to compensate for the resulting damage.”
A traffic safety obligation arises when someone creates a source of danger. This can be done, for example, by having a Traffic area (road, sidewalk, shopping center, airfield, bus shelter) other people is made accessible. The party responsible for ensuring traffic safety, usually the owner, tenant or lessee, must then ensure that on these traffic areas no one comes to harm. So much for the principle. But what exactly is meant by this and how far-reaching are these obligations?
Principle of fault-based liability
An aerodrome operator is liable for breach of the traffic safety obligation if he or a representative intentionally or negligently has acted. Pursuant to § 276 of the German Civil Code (BGB), a person acts negligently fails to exercise due care and diligence.
According to § 26 BGB, the board of directors of an association is obliged to organize the operation of the association in such a way that it does not lead to damage can occur. If the Executive Board violates this obligation, both the the association as well as possibly the executive board personally with its private assets for this organizational fault. Some aviation state associations have blanket concluded an insurance policy for all board members of the member clubs with regard to organizational culpability on the part of the Board of Management. So an inquiry is worthwhile – not only in the event of damage.
Spatial extension
First extend the Traffic safety obligations to your own area. An exception is To a certain extent, the transfer of the clearing and gritting duties by public Ordinances or bylaws of cities and towns on the owners of Properties for the sidewalks and streets located in front of the properties.
An airfield must therefore be located at least in the area defined by the authority must be secured in the form prescribed, for example by Signs, barriers and the like. This naturally also applies to the Flight operations so that pilots, passengers, club members, etc. are not endangered. become
This affects the entire area of the airfield, i.e. in particular parking areas, access roads, facilities and buildings, Taxiways, runways, but also non-tollable areas such as meadows, etc..
Personal extension
In the case of a natural person, the factual situation is simple, these are liable with all their assets, in the case of legal entities there are no deviations from the general liability provisions. Often overlooked that in the case of associations, it is initially the association that is responsible for a fault of its organs (board of directors), but each organ in case of its own fault (also) personally liable. Traffic safety obligations consist of supervisory duties, Supervisory duties and duties to instruct, for the fulfillment of which the Executive Board is responsible.
First of all, the owner of a plot of land responsible for traffic safety. But beware: this duty can become the transferred by contract on the one hand, and on the other hand, according to case law. of the Federal Court of Justice (BGH), the person in whose area of responsibility the source of danger lies. This will often be the tenant.
In many rental or lease agreements, the Transferring traffic safety obligations to the lessee or tenant, namely also with effect for the landlord, who is then only obliged to monitor. This also makes sense, since the owner usually has no or yet only one very limited access and monitoring possibility concerning the rented thing has. This results in a high liability risk for the tenant, which should definitely be covered by appropriate insurance, which the organs, representatives and vicarious agents of an association are also subject to. includes.
The contractual structure of the rental and lease agreements as well as the Insurance contracts should therefore be given increased attention, legal advice is often appropriate here.
Scope of the security obligation
Not all damage can be prevented. Therefore “after According to the established case law of the Federal Court of Justice and the higher courts, the person who situation creates danger, is fundamentally obligated to provide the necessary and take reasonable precautions to prevent injury to others as far as possible. prevent It should be noted that a traffic safety system, which includes any injury cannot be achieved and, in accordance with the justified The company does not expect this to be the case in the future. Therefore, the legally The traffic safety measures that are required are only those that a prudent and reasonable and prudent person would consider it necessary and holds sufficient to protect others from harm.”
It is also important that doing nothing or “omission”, as the lawyers call it, is equivalent to doing.
What specific dangers are pressing?
An aerodrome operator must ensure that safe flight operation is possible. This includes not only ensuring that the taxiways and runways are free from damage and sufficiently level and that proper markings are a matter of course. In winter they must be free of snow and ice. Areas that cannot be rolled over must be be adequately marked and, if necessary, provided with barriers. Grass slopes must be level, vegetation must be kept low, they must be checked for molehills and mouse holes, and the latter, if necessary be closed. The parking areas are also subject to a constantly recurring control: Forgotten ground anchors pose for rolling aircraft pose a significant hazard and must be eliminated.
Continuous control of the traffic areas is therefore unavoidable. The question of the intervals at which this must be done, cannot be answered in a blanket manner. At the latest when signs of an incipient hazardous situation are present, for example because after heavy rainfall the danger of sinking in the softened ground exists, an appropriate marking and cordoning off must take place; is known that moles and voles are up to their mischief, must be in short intervals of a few days, if necessary, or even daily before the flight operation a control will take place.
Obstacle clearance must also be monitored. If the edge growth is too high, it must be cut back. This also applies to owners of adjacent properties. If they do not take action themselves, the responsible state aviation authority must be called in. Only from there, if necessary, an order to do so is possible.
Excerpt from a decision of the Higher Regional Court Düsseldorf of 14.09.2001, Ref.: 22 U 56/01:
“The airport company is obligated by virtue of the opening of the airfield, the private-law obligation of the The operator is therefore responsible for the safe operation of the Condition of the surfaces intended for the movement of aircraft and thus also for the safe passability of an area used as an aircraft parking area designated meadow plot.
The airport company violates its Traffic safety obligation culpably, if they are on a meadow parking lot for Aircraft have a replenished but, due to prolonged intensive Rainfall softened cable trench not marked by a barrier and therefore an airplane with its nose wheel in the soggy soil sinks and is damaged”
Organization
Poor organization can also lead to liability. Failure to organize the operation in the best possible way is a breach of duty.
What to do?
It must The registration of flight operations, among other things, must be regulated by appropriate service instructions, measuring wind direction and strength, decisions on winch operation, basic principles to determine the direction of takeoff and landing, setting up the runway markers, Determinations regarding necessary closures, determinations regarding the setting up of a winch, specifications for determining the state of the place (in particular for this purpose applicable intervals), setting the grass height, checking for obvious Obstacles, molehills, damage, ground anchors, etc., review of fire protection and rescue equipment for completeness and functionality, reference to the Observance of the tank instruction, determination of the notification of detected deficiencies to the Board of Management. This also includes the definition of the relevant provided intervals and personal responsibilities.
It should an alarm plan in the event of an aircraft accident and instructions for immediate action at the Accident site be present and clearly displayed, as well as the telephone numbers of rescue service / -helicopter hang out.
Here is a non-exhaustive, exemplary list.
Criminal relevance
A culpable violation of the obligations may also have consequences under criminal law. draw. If a person is injured or injured due to a failure to secure killed, the charges of negligent bodily injury or homicide stand in the room.
Insurances
With the operation of an airfield are as above high liability risks are associated with this. Therefore, the operator should have a have a great interest in reducing these risks as far as possible through insurance policies, whereby care must be taken on the one hand that liability sums are agreed, and secondly, that the Board members, managing directors and vicarious agents in the insurance contracts be included. D&O insurance for the members of the Board of Management and the Managing Director is to be considered.
If buildings are available, a comprehensive Building liability insurance recommended.
The following risks should be considered for coverage:
– Building liability insurance
– Liability insurance –
– for owners of landing fields and airfields
– for air tour operators
– for keeping unauthorized vehicles
– for flight leader
– for technical staff
– against the risk associated with the refueling and defueling of aircraft
– against the risk arising from the sheltering and stowing and unstowing of foreign aircraft
– D&O insurance
– Accident insurance
– Legal expenses insurance (generally only for assertion of own claims, defense against unjustified claims is covered by the respective liability insurance liable to pay within the scope of so-called passive legal protection)
A short summary of the article appeared in Fliegermagazin 09/19. As pdf here
Ass.jur Werner Hupfauer
RA Frank Dörner