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Tort Liability for Negligent Operation of a Motor Vehicle in Germany and the United States

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Tort Liability for Negligent Operation of a Motor Vehicle in Germany and the United States COMPARATIVE LAW INTRODUCTORY IN 1957, a subcommittee of the Committee on Foreign Exchanges of Law Teachers and Students of the American Association of Law Schools recommended a program that was intended to foster international un- derstanding among law students and the legal profession. Part of this program included a proposal that law students of the United States and other nations prepare reciprocal notes on some legal problem of common interest that would serve as a comparative exhibit of the law of the various nations. The Journal's' first contributions to this program were notes on retailer and manufacturer liability for personal injuries from defective products in Germany and the United States, and minority stockholder challenge of majority actions in Italian and American close corporations. The immediately following notes treat the problem of the motor vehicle owner and operator's liability to persons injured by the negligent operation of the vehicle. The German note was prepared by Eberhard von Olshausen, an eighth-semester law student at the University of Kiel in Germany. The editors express their appreciation to Professor Hans W. Baade of the Duke Law School who edited and translated the Ger- man contribution. The American note was prepared by a law student of the Duke Law School. A hypothetical fact situation has been employed to confine the area of discussion. -The Editors TORT LIABILITY FOR NEGLIGENT OPERATION OF A MOTOR VEHICLE IN GERMANY AND THE UNITED STATES HYPOTHETICAL CASE A owned an automobile that was used for the usual family purposes. The automobile was registered in A's name and was driven from time to time not only by A but also by his wife and B, their eighteen-year-old son, all of whom were duly licensed to 11959 DUKE L.J. 93. See Baade, Studenten treiben Rechtsvergleichung, [i959] JURISTENZEITUNG zo6. DUKE LA9 W JOURNAL [Vol. i96o. 579 drive. It was customary for B to ask A's permission before using the automobile. B was a competent driver and had never been in any kind of an accident or given A any reason for doubting his care and prudence. On this occasion, B asked A's permission to use the automo- bile for an evening's drive with some friends. A gave B his per- mission, with the understanding that B was to drive the vehicle only around town and not on the super highway. B then invited several of his friends, including X, to ride with him and pro- ceeded to drive the vehicle on the super highway to a neighboring city. X was riding with B in the front seat. As a foreign-made automobile passed them, X remarked: "I wonder what kind of car that is?" B, the driver, looked back toward the car that had passed, momentarily taking his eyes off the road. At that moment the car swerved to the left and hit a car coming from the opposite direction that was being carefully driven by Y. Both X and Y were injured in the accident. Would A and B be liable to X and Y? LIABILITY UNDER GERMAN LAW* I A's LIABILITY TO Y A. Gefaehrdungshaftung (Strict Liability) of the Motor Vehicle Holder Section seven of the Road Traffic Law provides that the holder of a motor vehicle is liable for damages resulting "from the operation" thereof. While the minority view is that whether a motor vehicle is * Eberhard von Olsbausen, eighth semester law student, University of Kiel, Kiel, Germany. The form of citations to German source materials in this article generally follows German usage. For explanation and illustrations, see Kaplan, von Mehren, & Schaefer, Phases of German Cisvl Procedure (pt. x), 71 HARV. L. REv. 1193 n.ji- (1958); SCHLESINGER, COMPARATIVE LAW xxiii (2d ed. 1959). In accordance with prevalent German usage, titles of articles appearing in legal periodicals published monthly or more frequently, as well as the dates of decisions, including those reprinted and cited herein to legal periodicals, are omitted. The following abbreviations are used through- out: Courts: Reichsgericht (German Supreme Court, 1879-1945) [hereinafter cited as RG] ; Entscheidungen des Reichsgerichts in Zivilsachen (Decisions of the Supreme Court in Civil Cases) [hereinafter cited as RGZ]i Bundesgerichtshof (Supreme Court of the Federal Republic of Germany) [hereinafter cited as BGH] 5 Entscheidungen des Bundes- gerichtofs in Zivilsachen (Decisions of the Federal Supreme Court in Civil Cases) Vol. 196o: 5791 COMPARATIVE LAW in operation has to be determined according to strictly mechanical standards,1 the Supreme Court and a majority of authors-more cor- rectly, it is submitted-apply a test based upon more practical road traffic criteria.2 -However, since, in the instant case, A's car was in motion, there can be no doubt that Y's injury resulted from its opera- tion within the meaning of the statute. The question remaining is whether A was the holder of the vehicle at the time of the accident. The mere fact that the vehicle belonged to him and was registered in his name does not suffice to establish him as the holder, although this does have [hereinafter cited as BGHZ] iOberlandesgericht (intermediate court of appeals) [here- inafter cited as OLG] (see Kaplan, von Mehren, & Schaefer, supra, (pt. z), at 1444- 54) ; Landgericht (trial court of general jurisdiction) [hereinafter cited as LG]. Legal Periodicals: Deutsches Autorecht [hereinafter cited as DAR]; Juristisehe Wochenschrift [hereinafter cited as JW] Neue Juristische Wochenschrift [hereinafter cited as NJW] 3 Juristische Rundschau [hereinafter cited as JR] Monatsschrift fuer Deutsches Recht [hereinafter cited as MDR] Juristenzeitung [hereinafter cited as JZ] ; Recht des Kraftfahrers [hereinafter cited as RdK] Versicherungsrecht [hereinafter cited as VersR] 3 Verkehrsrechts-Sammbung [hereinafter cited as VRS] (cited to volume, e.g. i VRS x). The abbreviated citation of legal periodicals is followed by the last two digits of the year of publication, which in turn are followed by the page reference. Thus, in accordance with the abbreviated method here used, the German publication cited at note i,supra, would here appear as follows: Baade, JZ 59, 2o6. The following treatises are cited by author and page only: BIE'tMANN, REiCHSHAFT- PFLICHTGESETZ (1956) [hereinafter cited as BIERMANN]3 ENNEcCERUs-LEHMANN, RECHT DER SCHULDVERHAELTRISSE (1 4 th ed. 1954) [hereinafter cited as ENNECCERUS- LEHMANN] 5 FiSCHER, GEFAELLIGKEITSFAHRT UND VERTRAGLICHE HAFTUNG (Kieler Abhandlungen 1938) [hereinafter cited as FiscHER] 5 GEIGEL DER HAFTPFLcHTPROZESS ( 9th ed. 1957) [hereinafter cited as GEIGEL]; LEONARD, BONSONDERES SCHULDRECHT (1931) [hereinafter cited as LEONARD]; MAuRACH, DEUTSCHES STRAFECHT, ALLGE- MEINER TEIL (2d ed. 1958) [hereinafter cited as MAUa.ACH]; MUELLER, STRASSEN- VERKEHRSRECHT (21st ed. 1959) [hereinafter cited as MUELLER] 3 WELZEL, DEUTScHEs STRAFECHT (sth ed. 1956) [hereinafter cited as WEZEL]5 Wussow, DAs UNFALL- HAFTPFLICHTRECHT (5th ed. 1954) [hereinafter cited as Wussow]. Commentaries: Citations are to numbered comments to or before sections of the statute commented upon. In the case of Palandt's commentary, which now is the work of several authors, the name of the author of the comment cited is also given. ERMAN, KOMMENTAR ZUM BGB (1952) [hereinafter cited as ERMAN]5 FLOEGEL-HARTUNG, STRASSENVERKEHRSRECHT (12th ed. 1959) [hereinafter cited as FLOEGEL-HARTUNG]5 PALANDT, KOMMENTAR zum BGB (,6th ed. 1957) [hereinafter cited as PALANDT]5 REICHSGERICHTSRAETEKOMMENTAR ZUM BGB (xoth ed. 1953) [hereinafter cited as RGRK]i STAUDINGER-WERNER, KOMMENTAR ZUM BGB (i ith ed. 1959) [hereinafter cited as STAUDING ER-WERNER]. 1Roth-Stielow, DAR 58, 123. 2 Constant jurisprudence of the RG and BGH. See, for example, RGZ z6, 3345 id. 132, 2645 RG, JW 32, 7845 BGH, MDR 56, 4613 BGH, NJW 59, 627 (here probably espousing this view more comprehensively than did the Reichsgericht) ; BGH, VersR 55, 3455 FLOEGEL-HARTUNG § 7, comm. 45 Boehmer, VersR 57, 5875 JR 58, 4755 JZ 59, x56i ENNECCERUs-LEHMANN 998, expresses no opinion. DUKE LAW JOURNAL [Vol. i96o: 579 a certain evidentiary value.3 Courts and authors are in full agreement that the holder of a motor vehicle is the person who has the use of the vehicle on his own behalf and, in addition, has full access thereto.4 The person using the vehicle on his own behalf is the one who derives the benefits from its operation and pays for its upkeep -that is, the person who has the predominant economic interest in the vehicle.' In the present case, it follows that A and not his son B is the holder, although, at least theoretically, there could be two holders of the same vehicle A has the predominant use of the car; he presumably pays for insurance, maintenance, and fueli and he has complete power of disposal of the vehicle. This use and control is a continuous relation- ship' that is not terminated by the occasional turning over of the car to B for specific trips, a conclusion further buttressed by B's obtaining A's permission to use the vehicle before each trip. The granting of such occasional permission constitutes a special form of control over the vehicle. This follows from section seven, paragraph three of the Road Traffic Law, which established the liability of the holder for damage caused by persons to whom the holder has temporarily given the vehicle, a provision which would be self-contradictory if the surrender of the car to others would, without more, result in the loss of the status of holder. It has even been held that the owner of a motor vehicle who had temporarily leased the vehicle in exchange for a fixed sum plus insurance premiums was still the holder thereof, if the lessor did not contribute to the upkeep of the vehicle other than through the purchase of gasoline.10 Consequently, a temporary use of the vehicle, such as in the instant case, without the assumption of any maintenance and operation costs 'RG, JW Pi,1862.
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