Exclusion of liability for vehicle damage during a car race
The common feature of the aforementioned provisions is the achievement of a "maximum speed. In this respect, it is considered sufficient in the case of the provision of §29 StVo that the maximum speed is at least a determining factor. Accordingly, a race is also a competition in which the highest average speed is determined when covering the distance between the start and finish....
FEDERAL COURT OF JUSTICE
IN THE NAME OF THE PEOPLE
VI ZR 321/02
1 April 2003
H o l m e s ,
as clerk of the court
in the litigation
Reference book: yes
BGB § 823 para. 1 Ha; StVG § 7 para. 1; AKB § 2 b para. 3 b; PflVG § 3 no. 1; KfzPflVV § 4 no. 4
In sporting competitions with a not insignificant risk potential, in which there is typically a risk of mutual infliction of damage even if the rules of the competition are observed or if there is a minor breach of the rules (here: car racing), the claim against the damaging competitor for such - uninsured - damage caused by a competitor without a major breach of the rules is excluded (continuation of BGHZ 63, 140).
BGH, Judgment of 1 April 2003 - VI ZR 321/02 - OLG Karlsruhe
At the hearing on 1 April 2003, the VI Civil Senate of the Federal Court of Justice by the Presiding Judge Dr. Müller, Judge Wellner, Judge Diederichsen, and Judges Stöhr and Zoll
found to be right:
The plaintiff's appeal against the judgement of the 10th Civil Senate of the Karlsruhe Higher Regional Court of 26 July 2002 is dismissed.
The plaintiff shall bear the costs of the appeal proceedings.
The plaintiff and the first defendant took part in a "regularity test" organised by the Porsche Club Schwaben e.V. at the Hockenheimring on 6 August 2000 with their Porsche cars. According to the regulations of the event, the competition consisted of driving any two laps within 20 minutes in absolutely the same time. In the scoring, one point was deducted for every 1/100 second deviation; in the event of a tie, the higher number of laps and then the higher average speed decided.
During the competition, the first defendant attempted to overtake the plaintiff's vehicle on the left with his vehicle while driving through a right/left/right chicane. In doing so, he left the carriageway and then spun back onto it. In the subsequent collision of the vehicles, the plaintiff's vehicle was considerably damaged.
In this action, the plaintiff claims compensation for the material damage caused from the first defendant as driver and owner and from the second defendant as its motor vehicle liability insurer. With its counterclaim, the 2nd defendant demands the repayment of rental car costs already reimbursed.
The defendants took the view that the plaintiff had no claim for compensation because the entry form signed by him contained a disclaimer of liability. It states, among other things, that by submitting their entry, entrants and drivers waive any claims of any kind against the other participants, their helpers and the owners and keepers of the other vehicles arising in connection with the "racing competition", except in the case of damage caused intentionally or by gross negligence. The second defendant also claimed that his liability was also excluded according to § 2 b para. 3 b AKB because the competition was a racing event excluded from liability insurance coverage.
The Regional Court dismissed the action and allowed the counterclaim. The appeal against this decision was rejected by the Higher Regional Court. With the admitted appeal, the plaintiff continues to pursue his claim.
Reasons for decision:
The Court of Appeal states in the contested judgment:
The question of whether the general terms and conditions signed by the plaintiff on the exclusion of liability for the constellations of cases listed therein stood up to scrutiny under the AGBG was not relevant. The plaintiff had no claim for damages against the first defendant because the accident had occurred during a racing event for which there had been a - tacitly - agreed exclusion of liability between the plaintiff and the first defendant, which should only have been inapplicable in cases of a serious breach of the rules - which could not be blamed on the first defendant. This also meant that the second defendant was not liable, as it was already exempt from liability in accordance with § 4 no. 4 of the Motor Vehicle Liability Insurance Ordinance and § 2 b para. 3 b of the General Terms and Conditions of Insurance; this also meant that the plaintiff had to repay the rental car costs that had already been reimbursed to him.
These statements stand up to the attacks of the appeal
The Court of Appeal left undecided whether the declarations printed in the nomination form stand up to scrutiny under the AGB Act. The parties also do not submit anything on this point in the appeal proceedings. The appellate court did not make the factual findings necessary for the application of the AGBG and the interpretation of the contractual declarations. For the revision proceedings it must therefore be assumed that the liability of the defendant is not yet excluded without further ado on the basis of the general contractual declarations
(2) In the circumstances of the dispute, the Court of Appeal was correct in affirming an exclusion of liability.
a) In this context, it is to be assumed from the opinion of the court of appeal that the event of 6 August 2000 on the Hockenheimring was a race in the sense of § 29 para. 1 StVO, § 2 b para. 3 b AKB and § 4 no. 4KfzPfIVV.
aa) According to the administrative regulations on § 29 para. 1 StVO, races are competitions or parts of a competition to achieve maximum speeds with motor vehicles (also BVerwGE 104, 154, 156 = NZV 1997, 372; Hentschel, Straßenverkehrsrecht, 37. Aufl., § 29 StVO Rdn. 2 mwN). A time gap between the start of the individual participants does not change the racing character (BVerwG, loc. cit.).
According to § 4 No. 4 of the Motor Vehicle Compulsory Insurance Ordinance (KfzPflVV), liability can be excluded from the insurance, inter alia, for claims for compensation arising from the use of the vehicle in officially approved motor sporting events, in which it is important to achieve a maximum speed, or the associated practice drives. Pursuant to § 2 b Para. 3 b AKB, insurance cover is not granted, among other things, for damage that occurs during participation in driving events in which it is important to achieve a maximum speed or during the associated practice drives, whereby this only applies in the case of motor vehicle liability insurance in the case of participation in officially approved driving events or the associated practice drives.
The common feature of the provisions mentioned is the achievement of a "maximum speed". In this respect, it is considered sufficient, for example in the case of the provision of § 29 StVO, that the maximum speed is at least a determining factor. According to this, a race is also a competition in which the highest average speed is determined when covering the distance between the start and finish (Hentschel, loc. cit., mwN).
The risk exclusion of § 2 b para. 3 b AKB does not only apply to races in the sporting sense, but to races of any kind (senate judgement of 4 December 1990 - VI ZR 300/89 - VersR 1991, 1033 f. - Autobergrennen -), in particular speed races, touring races, rallies etc., as long as the aim is to achieve the highest speed, even if this may be lower in absolute terms than in the case of racing events in the narrower sense (Stiefel/Hofmann, Kraftfahrtversicherung, 16th ed., § 2 AKB Rdn. 283). For § 2 no. 3 b AKB (old version), the Federal Supreme Court stated that driving events which take place on specially secured or closed roads are covered by the scope of application of the exclusion clause without further ado if the highest speed is decisive for winning the competition (judgement of 26 November 1975 - IV ZR 122/74 - VersR 1976, 381, 382 - Rallye Monte Carlo -; on this, Bentlage, VersR 1976, 1118). However, this characteristic has not been considered fulfilled if the driving event was held on a public road, the participants had to observe the traffic regulations and the event was merely aimed at achieving a high average speed (BGH, loc. cit., p. 383). The existence of a race has also been denied in the case that the course of the sports driving school of a car manufacturer on a circuit focuses on the improvement of the driving skills and the control of the vehicle in everyday traffic, in particular in extremely dangerous situations, if the achievement of the highest possible speed is not the main and final objective because the placement of the participants is not based on this (OLG Hamm, RuS 1990, 43 - Circuit in Zandvoort -).
bb) Based on this, the court of appeal affirmed the existence of a race in the case in dispute without any error of law.
(1) It did not ignore the fact that, according to the introductory wording of the "Regulations Porsche Club Series", the competition consisted of driving any two laps in absolutely the same time. However, it assumed that this introductory sentence of the regulations could not be considered on its own and used as a basis for the legal assessment. It was clear from the criteria for the classification and the determination of the winner that it was not only a question of completing any two laps in the same time, but that the classification also depended on the maximum speed, because the participant was deducted one point for each 1/100 second deviation (from the comparison lap) and then, in the case of a tie, the higher number of laps and, in the case of the same number of laps, the higher average speed was decisive. The winner should initially be the one who had the smallest time deviation in two laps. In the event of a tie - which could be assumed given the large number of participants - the higher number of laps completed was to decide on the victory. This already implied that the participants, who were allowed to do any number of laps in the given time (20 minutes), would try to do as many laps as possible in order to achieve the second evaluation criterion, which at the same time meant that they had to drive as fast as possible, since the time was limited. The third criterion (the winner is the one who has achieved the highest average speed), however, is an indication of the existence of a race. Those who take part in such an event on a race track will usually also want to achieve an optimum score. However, this could only be achieved with a higher probability if as many laps as possible were completed as quickly as possible.
(2) These statements do not reveal any legal errors. The Court of Appeal also rightly points out that the organiser's apparent ideas about the nature of the event must be taken into account when assessing the event. For example, on the back of the entry form, the participant assures in the very first sentence that he is up to the "demands of the racing competitions". This can be supplemented by the fact that the event was not held on a public road, but on the closed race track of the Hockenheimring, was reserved for drivers who wanted to "take their everyday car to a race track for the first time" and get to know "the European Grand Prix circuits" for a small entry fee (introduction to the Porsche Club Series regulations), and that the course of the event was obviously based on racing events ("free driving", use of the pit lane, participants were "sent out on the track" in single starts, preparation of daily and annual rankings).
(3) In addition, there is the following: The purpose of the regulations of liability limitations in races discussed above (2 a, aa) is to subject events to special treatment where motor vehicles are not used - as in public road traffic - in a manner adapted to the traffic regulations and where increased risks occur to an unusual extent as a result (cf. on § 29 StVO: BVerwGE 104, 154, 159 = NZV 1997, 372, 373; on § 2 AKB: Stiefel/Hofmann, ibid). It cannot be doubted that events such as the one in the case in question give rise to such unusual dangers. Closed race tracks are hardly comparable to "normal" roads in terms of their layout; moreover, they challenge the user of a high-powered vehicle to drive at high speed - especially if a speed-dependent result is in question - which is associated with a not inconsiderable risk. Also under this aspect, the assessment of the event to be judged here as a racing event is correct, at least in the broader sense.
b) The Court of Appeal's view that liability is excluded to a certain extent for the participants of such a racing event is to be followed in the result under the circumstances of the dispute.
aa) The question of whether and to what extent the liability of the participants among each other is limited or excluded at sporting events with regard to the specific dangers accepted by the participants is discussed in many ways, be it from the point of view of a sport-specific definition of the care required in traffic (limited negligence standard), a consent, a (tacit) waiver or exclusion of liability, acting at one's own risk or an unfaithful claim against the competitor (cf. Münch- Komm-BGB/Oetker, 4th ed, § 254 Rdn. 67; Münch-Komm-BGB/Mertens, 3rd ed., § 823 Rdn. 318 ff; Soergel/Mertens, BGB, 12th ed., § 254 Rdn. 49 ff; Soergel/Zeuner, loc.cit., before § 823 Rdn. 75 ff; Staudinger/Schiemann, BGB, 13th ed., § 254 Rdn. 66 f; Geigel/Hübinger, Der Haftpflichtprozeß, 23rd ed, ch. 12, marginal no. 6; Geigel/Kunschert, loc. cit., ch. 25, marginal no. 237; Lange, Schadensersatz, 2nd ed., pp. 639 f., 643 ff.; Wussow/Baur, Unfallhaftpflichtrecht, 15th ed., ch. 17, marginal no. 24; Deutsch, VersR 1974, 1045; Fleischer, VersR 1999, 785; Grunsky, JZ 1975, 109; Looschelders, JR 2000, 265, 267 ff.).
(1) The Supreme Court has ruled that joint participation in a reliability drive organised and supervised by an automobile club does not mean that liability in tort for negligent bodily injury is limited between two drivers who take turns in driving a car, because there is no greater likelihood of the passenger wanting to take on an injury caused by the driver's fault than in the case of other drives, especially as insurance cover exists (Senate ruling BGHZ 39, 156, 160 f.). In the judgement of 24 September 1985 (BGHZ 96, 18, 27 et seq.), which concerned the indemnification of the organiser of a drivers' training course at the Nürburgring, the senate rejected a limitation of liability because the fact that the drivers had taken an increased risk typically inherent in the training course did not justify limiting liability to gross negligence and wilful misconduct by way of a supplementary interpretation of the contract; a training course whose aim was to improve the drivers' ability to control their vehicles was not comparable to a motor race or a competitive sports game.
On the other hand, it is the case law of the court that the participant in a sporting game of combat basically accepts injuries that cannot be avoided even if the game is played according to the rules, and that therefore a claim for damages against a fellow player requires proof that the player did not behave according to the rules (BGHZ 63, 140 - Fußballspiel -). Injuries, which can occur even in the case of sporting behaviour, are accepted by every participant in the game; therefore - irrespective of the question whether liability is to be denied already on the level of the factuality or the unlawfulness - it is in any case a violation of the prohibition of the faithless self-contradiction (venire contra factum proprium), if the injured party makes a claim against the defendant, although he could just as well have been in the position in which the defendant now finds himself, but would then (and rightly) have resisted having to pay him compensation despite having complied with the rules of the game (BGHZ 63, 140, 142 et seq.cf. also Senate judgements of 5 November 1974 - VI ZR 125/73 - VersR 1975, 155 - Football match -; of 10 February 1976 - VI ZR 32/74 - VersR 1976, 591 - Football match -; of 16 March 1976 - VI ZR 199/74 - VersR 1976, 775 - Basketball match -).
The Senate then emphasised that the exemption from liability for fighting games was an independent group of cases characterised by the existence of binding rules of the game, but that the principles on the effects of contradictory behaviour extended beyond the area of sporting fighting games (judgement of 21 February 1995 - VI ZR 19/94 - VersR 1995, 583, 584 - Spiel am Badesee -).
(2) In the case law of the Higher Regional Courts, an exclusion of liability in the case of sporting activities in the event that no or no significant breach of the rules or no grossly negligent behaviour on the part of the injuring party can be ascertained, is often affirmed also outside the area of sporting fighting games (cf. OLG Celle, VersR 1980, 874 - motor sport with off-road motorbikes -; OLG Düsseldorf, OLGR 1995, 210 - harness racing -; VersR 1996, 343 - organised cycle tour -; NJW-RR 1997, 408 - go-kart ride -; OLG Düsseldorf, DAR 2000, 566 - ADAC 500 km race on the Nürburgring -; OLG Hamm, VersR 1985, 296 - Squash training game -; OLG Saarbrücken, VersR 1992, 248 - Go-kart race -, the recognising senate dismissed the appeal against this judgement by order of 16 April 1991. OLG Zweibrücken, VersR 1994, 1366 - Radtrainingsfahrt -, the court of appeal did not accept the appeal against this judgement by decision of 14 June 1994 - VI ZR 242/93 -; differently, for example: OLG Hamm, NJW-RR 1990, 925 - sailing competition -; OLG Karlsruhe, NJW 1978, 705 - high mountain tour -; VersR 1990, 1405 - final training at a drivers' course of a motor sports club -; OLG Koblenz, NJW-RR 1994, 1369 - motorbike rally on the Nürburgring -). In the literature, an implied exclusion of liability for damage caused without a serious breach of the rules in parallel competitive sports such as motor racing is both affirmed (cf. e.g. Geigel/Hübinger, loc.cit.; Wussow/Baur, loc.cit.) and denied (cf. e.g. Geigel/Kunschert, loc.cit.).
bb) The principles that the senate has developed so far on the acceptance of damages in the case of fighting matches according to the rules are transferable to racing events of the present kind. They generally apply to competitions with a not inconsiderable potential for danger, in which there is typically a risk of mutual harm even if the rules of the competition are observed or if there is a minor violation of the rules.
(1) The court of appeal assumed that the first defendant could not be accused of any infringement of the rules of the driving event, let alone a substantial one, even after the plaintiff's presentation of the circumstances of the accident, that he could at most be accused of having lost control of his vehicle during the overtaking manoeuvre and thus having run into the plaintiff's lane, whereby a typical risk of the driving event had materialised. This is not challenged by the appeal.
(2) A car race is - as is also evident from the evaluation of § 29 StVO and § 2 b AKB - a particularly dangerous event. The endeavour to achieve high speeds entails considerable risks, at least for the vehicles used. Even the slightest driving error by a competitor can lead to considerable damage to one's own vehicle and to other vehicles. Every driver is affected by the typical risks in the same way; whether he comes to harm in the race due to the behaviour of other competitors or causes harm to others himself depends more or less on chance. Moreover, if accidents occur when overtaking or when vehicles are approaching each other, it will often be difficult to establish with sufficient clarity whether one of the drivers and, if so, which one, was the cause.
(3) The drivers taking part in such a competition are by and large aware of the dangers involved. They know that the vehicles used are exposed to considerable risks. However, they accept these for the sake of sporting pleasure, excitement or even the joy of danger. Each participant in the competition may therefore rely on not being held liable for such damages caused to a competitor, which he causes without any significant violation of the rules due to the typical risk situations of the competition. The assertion of such damages is clearly in conflict with this and must not be accepted in good faith. This applies in any case if - as here, see c below - there is no insurance cover; it is not necessary to decide here whether something else applies if insurance cover exists.
(4) The objection of the appeal that the plaintiff could have reasonably assumed, taking into account good faith, that possible damages were covered by the existing motor liability insurances of the participating vehicles is not convincing. Whoever takes part in a driving competition and thus exposes his vehicle to dangers that have nothing to do with normal road traffic must already consider without outside advice whether and to what extent the existing insurance cover applies. It is not evident that the plaintiff has made concrete considerations in this direction and has made enquiries.
The objection of the appeal that the court of appeal did not take into account the plaintiff's submission that he would not have agreed to an exclusion of liability because of the high value of the Porsche vehicles involved of up to DM 200,000.00 is also not valid. This is irrelevant in view of the above statements, which refer to the self-contradiction in the plaintiff's behaviour for the exclusion of liability. Even apart from these considerations, the argument of the appeal is not convincing. According to the plaintiff's assertion, he suffered material damage to his vehicle amounting to approximately DM 25,000.00, which he must bear himself. If the legal position of the appeal were true for all participants of the event, the plaintiff would have had to compensate from his own funds for a total loss caused by him without violating the rules to one of the competitors' vehicles costing up to DM 200,000.00 without sufficient insurance cover. On the contrary, from the plaintiff's point of view, there would have been every reason to agree to an exclusion of liability (of all participants) in order to avoid such a consequence.
c) Accordingly, the court of appeal correctly denied the plaintiff's claims against the defendants. Insurance cover does not exist for the liability in question here. The second defendant rightly invokes the risk exclusion of § 2 b para. 3 b AKB. This follows without further ado from the fact that - as explained - the event of 6 August 2000 was a race. The second defendant can exclude this risk pursuant to § 3 no. 1 PflVG in conjunction with § 4 no. 4 KfzP. § 4 No. 4 of the Motor Vehicle Insurance Ordinance.
The court of appeal therefore rightly dismissed the plaintiff's appeal against the judgment of the Regional Court dismissing the action and allowing the counterclaim.
Accordingly, the appeal is to be dismissed with the consequence of costs under § 97 (1) ZPO.
Müller, Wellner, Diederichsen, Stöhr, Zoll
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