17.11.2017
During the cold season, property owners and road maintenance workers have an increased duty of care with regard to the maintenance of their roads. This article is intended to provide an overview of the duties and potential dangers for property owners and road maintenance workers.
The so-called "road owner liability" according to § 1319a ABGB stipulates that the owner of a road is only liable for damages resulting from the defective condition of his road if he caused the defect intentionally or through gross negligence. The owner of a road is the person who bears the costs for the construction and maintenance of the road and who has the power to take the appropriate measures. Ownership of the road is not important.
A path is an area of land that can be used by anyone under the same conditions for all types of traffic, even if this is only open to a limited group of users. It is important that the injured party has no claim to compensation if, for example, he could have recognized from prohibition signs that use was prohibited. Section 1319a of the Austrian Civil Code is silent on the extent of the owner's obligation to clean and sprinkle the path and when he violates this obligation. This is a question of the reasonableness of the corresponding measures and therefore a question of the individual case. As a general rule, however, it can be stated that heavily frequented paths should be cleaned or sprinkled first and that special attention should be paid to particularly dangerous areas (e.g. due to a steep gradient).
In this context, Section 93 of the Road Traffic Act must also be observed. Section 93 of the Road Traffic Act regulates the owner's obligations to clean and sprinkle the path. This obligation includes sidewalks and footpaths that are located along the property at a distance of no more than 3 meters. These and the associated staircases must be cleared of snow and dirt between 6:00 a.m. and 10:00 p.m. If there is snow or black ice, sprinkles must be applied.
In summary, the owner of a road and the property owner have a duty to ensure road safety even without a contractual relationship with the injured party. The injured party can freely decide whether to sue the owner in accordance with Section 1319a ABGB or the property owner in accordance with Section 93 StVO. If the two parties are the same, the injured party can choose which legal basis to base their claim on.