The municipality carries out winter road clearance beyond its statutory obligations
Principle
The duty to clear and grit results from the owner's general duty to ensure road safety. As the person responsible for their path or road, they must take the necessary precautions to protect third parties. If the owner does not fulfil this obligation, his liability arises from § 823 Para. 1 BGB.
Responsibilities
The owner is always responsible for securing a path. This means the property owner in the case of private paths and the municipality in the case of public roads and paths. With regard to footpaths, the road safety obligation (duty to clear and grit) is transferred to the residents, i.e. to the owners of the properties accessed by them, by the road cleaning statutes of the municipality of Rüdersdorf bei Berlin dated 24 November 2005.
Transferring the duty to clear and grit to a tenant or third party (e.g. neighbours)
Property owners can transfer their duty to ensure road safety by contract to any tenants of the property or to any third parties. If the owner is not in a position to clear and grit their paths themselves, e.g. because they live away from home, they are even obliged to commission a third party to do so. The same applies in the event of illness or holidays. However, this transfer does not completely relieve the owner of responsibility, but he retains a duty of supervision. They must check whether their tenant or the third party actually fulfils their duty to ensure public safety.
Scope of the clearing and gritting obligation
The decisive factor for the scope of the clearing and gritting obligation is that the path or road must be safe to use to a reasonable extent at normal traffic times. The duty to grit does not arise until there is a specific risk of black ice, so precautionary measures against icing do not usually have to be taken. However, if weather conditions make it necessary, clearing and gritting must be carried out several times a day. (BGH III ZR123/86)
1. time scope
The time scope of the clearing and gritting service is regulated by Section 5 (4) of the street cleaning statutes.
Between 7 a.m. and 8 p.m., fallen snow must be removed immediately after the snowfall has ended and slippery conditions must be removed immediately after they have arisen. Snow that has fallen after 8.00 p.m. and slippery conditions must be removed by 7.00 a.m. the next morning on weekdays and by 9.00 a.m. on Sundays and public holidays.
2. spatial scope
2.1 Public roads
The Federal Court of Justice (BGH) has issued a fundamental ruling on winter road maintenance on public roads.
Within built-up areas, municipalities and towns are only obliged to clear and grit roads in dangerous and traffic-critical locations (BGH NJW 1991, 33). Dangerous places are, for example, bends, junctions and downhill stretches. This decision has far-reaching consequences for the municipality. As with the duty to grit, the municipality cannot be required to take unrestricted action on all roads in the case of the duty to clear.
A motor vehicle driver must therefore adapt to the corresponding road conditions in winter, especially on residential and side roads, and adjust their driving behaviour accordingly. The local authority therefore only has a duty to ensure safety where there is an increased risk of black ice and the driver cannot recognise this in good time despite an adapted driving style (OLG Nuremberg judgement of 22.11.00, 4 U 2421/00).
The local authorities must also clear the public roads, including the main roads within the built-up area, of snow in accordance with their capacity and grit them if they are icy, insofar as this is necessary to maintain public safety and order (§ 49a BbgStrG - Brandenburg state law).
Based on these legal requirements, the municipality has formed gritting districts in the districts and categorised the roads into priority levels 1 to 4 in order of importance to traffic.
Priority level 1 includes, for example, busy roads, heavily used footpaths (e.g. school routes), bus stops, steps and pedestrian paths. These areas are prioritised by the snow clearing vehicles or the building yard.
Winter road maintenance on federal, state and district roads is secured via public law contracts with the respective public authorities.
In the municipality of Rüdersdorf near Berlin, winter road maintenance is carried out on all public roads over and above the legal obligations! The municipality has taken on this task as a precautionary measure and as a service for its citizens. No charges are levied or passed on to residents!
We ask for your understanding that with a road network of approx. 90 km, delays may occur. However, the above-mentioned road clearance work, to which the municipality is legally obliged, always takes priority.
2.2 Footpaths
Owners are responsible for clearing and gritting footpaths. According to the bylaws, pavements must be kept clear of snow to a width of at least 1.50 metres. Footpaths must be gritted in icy and snowy conditions.
Civil liability
In the event of an accident, the party responsible for road safety is liable to the injured party under civil law in accordance with Section 823 (1) of the German Civil Code (BGB) for the damage resulting from the accident. This includes not only medical and possible hospital costs, but also any loss of earnings and compensation for pain and suffering.
Enforcing the cleaning obligation
In addition to civil law claims, those who culpably fail to fulfil their duty to maintain road safety may also face criminal sanctions for negligent bodily injury. Even if no accident occurs, non-compliance with the obligation to clear and grit roads can be punished as an administrative offence (warning, fine) on the basis of the street cleaning statutes or enforced with coercive measures (substitute performance, penalty payment).