Country:

Germany

Court:

Cologne Court of Appeal, decision of 27 August 2002 (3 U 116/00) = NJW-RR 2003, 387.

Topics:

Design defect, non-compliance with industry standards; development risks defence

Facts

The claimant, a young boy, had got his mountain bike in the late autumn of 1996. In February 1997 he went on a ride through the neighbouring streets of his parents' house. Approaching the side of the road, he tried to lift up the front wheel of his mountain bike onto the pavement as the suspension fork of the mountain bike broke. The claimant fell to the pavement, lost three teeth and suffered several cuts. With his claim against the producer of the mountain bike, he sought compensation for his medical expenses as well as for pain and suffering. He averred that the bike was poorly designed and therefore in terms of the German Product Liability Act as well as under the case law of "producer liability" in negligence.

Legal issues

1. Non-compliance with industry standards and defective design.

2. Industry standards and development risks defence.

Decision

1. The Cologne Court of Appeal found the suspension fork to be defective in its design. Following the experts' reports, the Court held that the suspension fork had a defect because the metal coating of the upper tubes of the fork had "been inserted at too low a temperature". The manufacturer, said the Court, had "failed to perform the usual red-hot metal procedure" in the course of fabricating the suspension fork. This omission had rendered the aluminium-copper-magnesium coating unsuitable for a bicycle fork, especially for a mountain bike fork. The metal coating, as a result of the wrong treatment, had been too stiff and inflexible for recurring tension, so that it showed "adverse symptoms of fatigue".

The Court added that the manufacturer should have foreseen that the mountain bike would be put at such use as it had been by the claimant. Lifting up the front wheel onto the pavement was well within the ordinary use of a mountain bike.

2. The defendant, the Court of Appeal went on, could not put forward that "the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered" (Article 7 (e) of the Directive and §1 (2) n.5 Produkthaftungsgesetz). The expert had made clear that it has been state of the art for several decades that aluminium coatings of that kind and for that use needed to undergo a hot-metal procedure which also was described in the relevant technical manuals. The Court of Appeal thus reasoned that, if the defendant had exercised tests simulating forces which would realistically work on the tubes of a fork during the use of a mountain bike, it would have become evident that the metal coating used by the defendant was no proper material for a mountain bike. There would be "no doubt that, had he applied all reasonable care, the defendant could have recognized the unsuitability of the aluminium coating he had used [...] even in 1996."

The defendant, the Court of Appeal said, was therefore liable under §§ 1, 3 of the Product Liability Act as well as in negligence (§ 823 I BGB).

Comment

The court here makes no difference between liability under the Directive (i.e. the Product Liability Act) and liability in negligence. This is not unusual in cases of defective design. The concept of defect is in so far a de-personalized form of enterprise negligence which operates with a reversal of the burden of proving the foreseeability of the product's dangers (to which end the producer must exonerate himself). The "conduct" of the producer and the "avoidability" of the defect are only irrelevant where a clear manufacturing defect is given.

Stefan Lenze