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Parking accidents
Parking accidents do not play a minor role in practice. If you know the legal situation, the grows at the drive of a supermarket car park a queasy feeling. Sufferers of such parking incidents are often both parties, because the courts frequently carry out a damage apportionment.In
its judgment of 15.12.2015 on file VI ZR 6/15, the Federal Court of
Justice has adopted a principle decision on the application of the prima
facie evidence in the case of parking accidents. The
verdict was based on an accident constellation, in which two motor
vehicles travel backwards out of the parking bay of a private but
publicly accessible parking lot, for example a supermarket, and collide
with one another. In
this case, for example, the vehicle A travels laterally into the
vehicle B and it can not be excluded that B was already standing at the
time of the collision. According
to a widespread view, in these cases an equally high responsibility was
assumed, ie a liability distribution 50/50 was assumed. The reason for this was the assumption by way of a prima facie
evidence that both parties involved in the event of a reversal were in
breach of their due diligence obligations under Section 9 (5) of the
Road Traffic Regulations.The verdict was misinterpreted in the media. This
applies both to the allegedly earlier legal situation, according to
which, in such constellations, each had to bear its own damage as well
as the new legal situation, which is allegedly to replace one of the
parties in full. Neither
had the accidents involved suffered their own damage in the past, nor
does the BGH's judgment imply the full liability of any of the parties
involved. A legal consequence, according to which in such cases everyone must bear his own damage is foreign to German law. Rather, it was the case that each of the insurers could claim 50% of their own damages. Surprisingly,
the false assumption that everyone must bear their own damage has been
stubbornly persistent for many years, as stubborn as perception, and the
distribution of liability between the accident victims would be the
responsibility of the insurers. In these cases, the insurers do not interfere with each other at all.The BGH does not impose a liability rate. The main issue is the question of whether a prima facie evidence is applied against the person who may already have been. The BGH denies this.In
any case, if one reads the aforementioned judgment of the Federal Court
of Justice to the end, it becomes clear that a full liability of one of
the accident participants is possible, but not precisely. After
the decision, in the future, at least one predominant liability of the
person who has entered the other passenger car will usually be accepted -
if it can not be ruled out that he already existed. The Federal Court of Justice dismissed the case to the Court of Appeals, stating the following:"In
the case of further proceedings, the Senate points out that, even if
the proof of the first appearance is not a fault on the part of the
plaintiff, the operational risk of his vehicle and other circumstances
which can be inferred by a fault of the originally returning trader , May be taken into account in the context of the weighing-up. "(BGH, judgment of 15 December 2015 - VI ZR 6/15, paragraph 16, juris)There remains a great deal of scope for determining the liability distribution. A liability ratio of 75/25 can be considered probable.
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