Country:

Germany

Court

Hamm Court of Appeal, 27/01/2002 - 3 U 116/00 ("Log Flume")

Topics:

1. Design defect; compliance with standards and regulations.

2. Instruction/warning defect; causation.

Facts:

The defendant in this case was a manufacturer of roller coasters for theme parks. One of its products is a log flume ride, the Nautic-Jet-Bahn. The main attraction of the Nautic-Jet-Bahn is a jump over a ramp into a water pool. On 13 August 1995, the claimant went for a ride with the log flume. She sat down correctly in one of the carriages and followed all instructions. As the car hit the surface of the water after the jump, the claimant felt great pain in the lower back. She was taken to hospital were doctors diagnosed a fracture of the first vertebra. She sued the manufacturer of the Nautic-Jet-Bahn for compensation of damages under the Product Liability Act (PLA) and in negligence under § 823 BGB.

Decision:

The Hamm Court of Appeal confirmed the first-instance decision and dismissed the claim. Neither the PLA nor § 823 BGB, said the Court, gave a legal basis for the present claim. The Court first confirmed the prevailing view in Germany according to which the conditions for a claim under the PLA and the case law of the Bundesgerichtshof in negligence are largely identical. Both require the claimant to prove a defect in the product. The Court also confirmed the general view in Germany according to which there are three different types of defects: manufacturing defects, design defects and instruction defects (i.e. failure to warn). As all cars showed the same characteristics, the Court ruled out the possibility of a manufacturing defect and considered only the possibilities of a design and instruction defect.

1. Design defect. The Court first denied the presence of a design defect. The log flume met all relevant regulations and standards, and thus carried two kitemarks from a public and a semi-governmental standard agency respectively, the TÜV and the GS-mark. Compliance with (binding) regulations and (voluntary) safety standards did not in itself preclude the finding of a design defect, the Court held. However, such compliance was indicative of the fact that the product was as safe as could be legitimately expected. The claimant did not prove that the relevant circles of the public (the Court apparently means users and operators of log flumes) were entitled to expect a higher level of safety as that described by the relevant standards and regulations. The ride on the log flume, and particularly the jump into the water pool, inevitably presented a certain level of risk to health and safety of the passengers. This, said the Court, was part of the attraction and was generally accepted by the users. The claimant also did not correspond with the typical user. The taking of evidence had shown that she was suffering of high-grade osteoporosis, without which she would most likely not have suffered her injuries. The court-appointed expert had reported that the log flume presented no significant risk to people with "normal degenerative abrasions of the spine". X-ray pictures of the claimant after the accident had shown that the osteoporosis in the spine was already so far advanced that any day-to-day incident could have caused the fracture.

2. Instruction defect. The Court also denied a failure to adequately instruct and warn the users of the log flume of the risks inherent in any ride. The Court confirmed the case law of the Bundesgerichtshof in negligence (BGH NJW 1989, 1542) according to which the producer needs to warn not only of dangers present in the ordinary use of the product but also of the dangers related to any foreseeable misuse. However, there was no need to warn of risks which are generally known to the public. The instructions displayed at the entrance of the log flume pointed to maximum weight and age of passengers and gave instructions as to how passengers should behave during the ride. Any warnings that people with osteoporosis, or similar conditions, should not use the log flume were not required, said the Court, as that was part of the general knowledge.

The Court also pointed out that even if the instructions and warnings had been inadequate, the claimant could not prove a causal link between not being warned of the risks for people with spine injuries or abrasions and her actual injury. For the claimant did not know of the osteoporosis at the time of the incident. Therefore, the Court concluded, there was nothing to indicate that she would not have used the Nautic-Jet-Bahn had she been warned of the risks for people with spine conditions.

Comment:

The case highlights once more the importance of compliance with standards and regulations in design cases [LINK to German Overview]. Although the Product Liability Directive does not provide a formal defence in such cases [LINK to PLD], the claimant will find it difficult to prove a design defect if the manufacturer complied with all relevant standards and regulations.

The case also reveals the difficulties in proving causation in cases where a failure to instruct or warn is at issue. Although the Bundesgerichtshof, in certain circumstances, helps claimants here with an actual presumption that they would have obeyed the warnings [Link], such a presumption does not apply if it is in fact unlikely that the claimant would have acted accordingly.