Court:

Federal Supreme Court, 9 October 1984 (Schachtrahmen-case)

Topics:

In the cases Schachtrahmen and Chaises pliables (folding chair), the Swiss Federal Supreme Court established much more severe standards for the employer´s proof of diligence under art. 55 CO and hereby overruled the principles of the Thermostat-case.

Articles:

ATF/BGE 110 II 456 (legal basis: art. 55 CO)

Facts:

Some workers, in the course of their employment, lifted an asymetric concrete block of 690 kilos with an excavator. The block was manufactured for covering a shaft. While being lifted, due to a failure of a suspension hook, the block fell down and heavily smashed and crushed one of the workers' right foot. The failure of the suspension hook was due to several construction defects of this specific hook and its inappropriate installation in the block.

The employee brought a claim against the producer of the concrete block. Such blocks were maufactured by two very experienced and reliable employers of the defendant and sold by the defendant to the claimant´s employer. It could not be established which of the two employees of the defendant had manufactured the defective block nor if it had been possible to detect the defect by a control of the finished product.

Decision:

The Federal Supreme Court held that it could not be established that the defendant had violated any of his duties to choose adequate subordinates (cura eligendo), to supervise them (cura in custodiendo) and to instruct them adequately (cura instruendo). The producer´s duties were, however, not limited to these duties. The court held that the producer had to use all efforts to avoid such accidents with as much certainty as possible. He had to organize controls of the finished product and, if this was not appropriate or sufficient to detect the defect or if the defect could not have been detected at all, the producer had to change its design and choose a design which was safe. The court held that the defendant had violated this duty and was liable under art. 55 CO. The court left the question open as to whether liability also followed from art. 41 CO.