Court:

OGH, 30.9.2002 1 Ob 169/02p JBl 2003, 247 = ecolex 2003/47 (Rabl)

Topics:

Defect

Putting a product into circulation

Contributory negligence

Articles:

§5, PHG

§6, PGH

§11, PHG

Facts:

The defendant municipality had allowed the local culture and tourist club (of which the mayor was president) to use their festival room. The plaintiff, having a management contract with the club, was doing prearrangement work for a concert. As several times before, he used a partition - a room separation device. When he started moving the partition it tipped and fell on him. He suffered from an open femoral-fracture. The partition had been fashioned by employees of the defendant municipality and used for events in the festival room.

Legal Questions:

How is "to put into circulation" to be understood?

Decision:

According to § 6 PGH a product is considered as put into circulation if the entrepreneur gives the legal power of disposition or usage to another person. That is to say that a product is put into circulation if it is put out of the manufacturing area with the purpose of selling it and therefore is available in another level of the stream of commerce. In the case at hand the product was to be considered out into circulation since the festival room had been rented to the club which gave the club the right to use the partition.

If the presentation of the product is inadequate the product can be held to be defective in warning. The duty to warn means that the producer has to warn the potential user about the features of the product (in some circumstances it is also the duty to warn of proper use). The duty to warn depends on the need for consumer protection. The consumer is to be protected if the producer has to anticipate that the product might be used by a person not knowing about its dangers. The standard of reference is the ideal type of user of the product. The safety expectations of the potential user are therefore decisive to whether or not a warning has to be issued. Therefore a warning does not have to be given for dangers which are of public knowledge to the potential consumer. Nevertheless the risk of product abuse is not to be shifted to the producer. He is not liable for unpredictable and absurd use but has to be aware of the possibility of unusual usage as long it is not totally abusive.

In the case at hand the defendant should have been aware that the partition was going to be used and moved and therefore they should have warned of the possibility of its tripping. The defendant should have put signs on the product saying "attention, prone to trip" or "ask municipality for help if you move this product". A potential user was not aware of the fact that a partition (3, 5 m high and 1, 5 m wide metal frame) is top-heavy and prone to trip. The defendant's statement that warning signs were not possible out of optical reasons was turned down, since according to the law the duty of warning cannot be ruled out by esthetical sentiments regarding the presentation of the product.

§ 11 PHG states that § 1304 ABGB is to be applied to contributory negligence cases. In the case at hand the plaintiff was contributorily negligent because he did not respect the clear technical features of a product he had been using several times before. He negligently ignored that the object was top-heavy.