28.10.2019
Can the owner of a store located in a shopping center be sued by a customer if the customer injures himself on the way from the parking lot to the store? What is the legal situation if the customer has already made his purchase and is injured on the way back to his car? Who is liable if the accident occurs in the parking lot of a shopping center that is used by customers of the various stores located there?
According to established case law, when initiating a business contact with potential customers, a business owner is subject not only to general traffic safety obligations, but also to pre-contractual protective obligations (OGH 2 Ob 158/06h). He must ensure safe access to his business premises, for example by cleaning and sprinkling snow and ice from the entrance and the sidewalk area immediately in front of it (OGH 3 Ob 666/78; 9 Ob 162/00i; 2 Ob 158/06h mwN). For this duty of the business owner to secure the entrance area in accordance with contractual principles, the legal options for disposal with regard to the area to be secured are not relevant (OGH 2 Ob 158/06h mwN; 3 Ob 160/04g). The size of the area to be secured depends on the circumstances of the specific individual case (OGH 9 Ob 162/00i; 2 Ob 158/06h each with further references). According to case law, the business owner also has post-contractual obligations to act with care with regard to the contractual partner's legal interests (OGH 3 Ob 160/04g with further references; cf. 7 Ob 624/88).
How does the Supreme Court assess these post-contractual protective obligations in its latest decision (OGH 4 Ob 13/19v)? A man bought groceries at a supermarket in a shopping center and stored them in his car, which was parked in the shopping center's parking lot. He then wanted to go to his wife, who was still in another shop in the shopping center, but fell on an icy patch and injured himself. He made a claim for damages against the operator of the supermarket where he had previously shopped, even though this supermarket operator was only a tenant of the shopping center.
The operator of the shopping centre had undertaken to the supermarket operator to ensure the proper functioning of the common parts of the premises (e.g. snow clearance) during business hours and to make the common areas (the parking area) available to enable customers to access the various shops. In order to fulfil these contractual obligations, the operator of the shopping centre also concluded a contract with a snow clearance service.
The Supreme Court has already ruled in several decisions (OGH 1 Ob 38/74; 1 Ob 304/99h) that the (pre- and post-) contractual traffic safety obligations of a business owner also apply to the parking spaces provided and the access routes to them. In the cases decided so far, however, the parking space was clearly assigned to a business owner, whereas here the parking space of the shopping center was the customer parking space of all business operators located in the shopping center.
According to the Supreme Court, this difference did not lead to a denial of the supermarket operator's liability for the accident of one of its (potential) customers in the parking lot. The supermarket operator (like the other business operators) makes the entire customer parking lot available as an access and parking area for (potential) customers to satisfy their purchasing intentions. The supermarket operator had been granted the right to do this in the tenancy agreement. For this reason alone, it has the possibility of influencing the danger area because the shopping center operator is contractually obliged to provide winter services in the parking lot for a fee. The supermarket operator's pre- or post-contractual protective obligations would therefore also extend to the customer parking lot in the present case. The shopping center operator is an agent within the meaning of Section 1313a ABGB with regard to the clearing and spreading of the parking lot, which the supermarket operator owes to its (potential) customers (cf. Supreme Court 8 Ob 53/14y mwN).
This ruling means that the owner of a business premises in a shopping centre is at risk of being held directly liable in the event of an accident involving a customer, despite contractually transferring general traffic safety obligations and other protective obligations with regard to the shopping centre's parking areas to the shopping centre operator. Of course, if this happens, recourse must also be taken, meaning that the shopping centre operator must ultimately pay for the damage.