Concept and Definition of Autonomous Self-Endangerment
Die autonomous self-endangerment is a central legal concept in German liability law, especially in civil and criminal law. It describes situations in which a person, taking full responsibility, exposes themselves to a risk that can result in harm to themselves. The feature of “autonomy” emphasizes the conscious and self-determined decision made by the endangered person. Autonomous self-endangerment must be distinguished from the so-called third-party endangerment (where the risk originates from others).
The concept of autonomous self-endangerment has a significant impact on the attribution of responsibility, liability, and duties of care within the German legal system.
Areas of Application of Autonomous Self-Endangerment
Significance in Civil Law
In civil law, especially when assessing claims for damages (§§ 823 et seq. BGB), autonomous self-endangerment has a direct impact on the liability of the respondent. Anyone who knowingly and willingly puts themselves in a dangerous situation and suffers resulting harm may, in some circumstances, have no or only limited claim to compensation.Examples of typical situations:
- Participation in risky sports (e.g., base jumping, climbing without harness)
- Being a passenger despite clear signs of the driver’s intoxication
- Participation in authorized but risky events
The prevailing opinion in these cases differentiates between contributory self-endangerment (consciously accepting the risk) and independent assumption of the risk.
Impact on the Duty to Ensure Safety in Traffic
As part of the duties to ensure safety (§ 823 para. 1 BGB), autonomous self-endangerment holds a particular position: Anyone who consciously and voluntarily assumes a risk typically limits the liability of the person who created or enabled the danger. The duty to ensure safety on the part of the injuring party is then reduced insofar as the endangered party was able to manage the risk themselves.
Differentiation: Consent, Acting at One’s Own Risk, and Debtor’s Default
Die autonomous self-endangerment is closely related to the concepts of ‘acting at one’s own risk’ and ‘consent.’ While consent under § 228 StGB or §§ 104 et seq. BGB generally includes agreeing to a risk, autonomous self-endangerment goes further by also covering situations in which there is no explicit agreement but rather independent action.
‘Acting at one’s own risk’ similarly describes behavior where the individual consciously accepts the risk—often discussed as a legal concept in sporting or social activities.
Legal Implications of Autonomous Self-Endangerment
Disclaimer and Limitation of Liability
The basic principle is: Taking on a risk independently results in a disclaimer or at least a limitation of liability for any possible injurers. However, this applies only under certain conditions:
- The act of risk-taking was voluntary and self-determined.
- The danger was recognizable and controllable.
- The decision was not made under deceit, threat, or coercion.
If these criteria are met, the liability of third parties for damages is generally excluded. If they are not fully met, § 254 BGB (contributory negligence) may apply, resulting in a division of liability.
Limits of Autonomous Self-Endangerment
Case law emphasizes that autonomous self-endangerment reaches its limits where protective laws or constitutional value judgments are affected—particularly regarding duties of protection for especially vulnerable groups (e.g., children, persons with disabilities) and in cases where third parties act as guarantors.
In particular, persons who cannot or can only partially comprehend decisions cannot effectively engage in autonomous self-endangerment. Examples include children under seven years of age or people with intellectual disabilities.
Furthermore, legal constraints exist where the endangered behavior is prohibited by law (e.g., violation of the Narcotic Drugs Act by personal consumption).
Criminal Law Assessment of Autonomous Self-Endangerment
Autonomous self-endangerment also plays a significant role in criminal law, especially in the objective attribution of criminal outcomes. According to prevailing opinion, a person who participates in a self-endangerment undertaken independently and with full responsibility is generally not liable to prosecution.
Distinction from Autonomous Self-Determined Suicide
In cases of assisting autonomous suicide (e.g., assisted suicide), the legal situation aligns with the aforementioned principles. Criminal liability arises primarily if the self-endangerment is no longer autonomous—such as in cases of deceit, threat, or substantial impairment of the decedent’s will. If a fully responsible and well-informed decision has been made, participation can also be exempt from criminal liability.
Limits in Cases of Participation
This differs with ‘third-party endangerment’ or if there is impairment of will. In such cases, liability under § 222 StGB (negligent homicide) or § 223 StGB (bodily injury) can arise if the criteria for autonomous self-endangerment are not fully met.
Distinction: Autonomous From Third-Party Responsible Self-Endangerment
The legal crux is always differentiating between truly autonomous, i.e., self-responsible, self-endangerment and third-party responsible self-endangerment. The latter occurs when third parties have materially created or increased the risk and influenced the decision-making freedom of the affected person.Practical Applications:
- Manipulation or deception
- Exploitation of special circumstances or coercive situations
- Insufficient or incorrect information about existing risks
In such cases, the legal principle of autonomous self-endangerment is either not applicable or only applicable to a limited extent when assessing liability.
Literature and Case Law on Autonomous Self-Endangerment
Autonomous self-endangerment is the focus of extensive literature and case law, for example, on damages in the context of sporting activities, waivers of liability in hazardous leisure activities, and shared responsibility for risky behavior.Significant Decisions:
- BGH NJW 1986, 2509 (“Base Jumping Judgment”)
- BGHZ 29, 65 (Duty to Ensure Safety at Sporting Events)
- OLG Koblenz, judgment of February 22, 2001 – 5 U 986/99
Summary
Autonomous self-endangerment is a legal figure of significance in liability and criminal law, in which the conscious acceptance of a risk through self-determination can lead to a limitation or exclusion of third-party liability. It is always a prerequisite that the endangerment is undertaken independently and that no overriding protective laws are violated. Distinguishing it from third-party responsible endangerment and from cases of limited decision-making capacity is a key component of legal assessment in both practice and literature.
See also:
- Consent (law)
- Contributory negligence
- Duty to Ensure Safety
- Criminal Attribution
Frequently Asked Questions
What criminal consequences can autonomous self-endangerment entail?
In German criminal law, autonomous self-endangerment is fundamentally not punishable, since the Criminal Code (StGB) does not cover self-harm committed by individuals acting on their own responsibility. Everyone has the right to self-determination, even if this leads to self-endangerment or self-harm. However, criminal consequences become relevant when and to the extent that third parties are involved in autonomous self-endangerment. For instance, if a person is incited or coerced into a dangerous act, criminal offenses such as instigation to self-endangerment (§ 26 StGB), failure to render assistance (§ 323c StGB), or bodily injury (§ 223 StGB) can apply to the involved party, provided the endangered person’s autonomous decision was influenced by deceit, threat, or coercion. Individual assessments are also necessary in the area of negligent offenses to determine the presence of a crime, particularly when the autonomy of the self-endangering person is limited or suspended.
Is consent to self-endangerment always legally permissible?
In principle, a person can consent to self-endangerment, provided they are capable of understanding the consequences of their decision and acting independently. Consent negates the unlawfulness of many offenses, for example, bodily injury (§ 228 StGB). However, there are legal limits to permissibility. In particular, if there is a violation of public morals (§ 138 BGB) or the consent is immoral, it has no legal effect. The same applies if the person concerned lacks capacity for insight or judgment, e.g., due to mental illness, minority, or temporary loss of consciousness. In such cases, consent under § 104 BGB is invalid and the endangerment may be unlawful.
What role does capacity for tortious liability play in autonomous self-endangerment?
Capacity for tortious liability is decisive in determining whether a person can be held civilly liable for damages they suffer themselves due to autonomous self-endangerment, or whether claims for damages against participants or supervisors may exist. Children under seven years old (according to § 104 BGB) and persons with permanently lost capacity for insight/control are incapable of tortious liability. In these cases, there is no autonomous self-endangerment in the legal sense. For adolescents and those with limited capacity, individual capacity for insight is decisive. This is particularly relevant for third-party liability, such as supervisors under § 832 BGB, if autonomous self-endangerment can no longer be considered an act of self-responsibility.
Can third parties be held liable for a person’s autonomous self-endangerment?
Third parties can be held liable if they are involved in autonomous self-endangerment and thereby impair the self-responsibility of the person endangering themselves. Typical cases include incitement, facilitation, or omission of assistance where the autonomous person is no longer capable of acting independently. Civil liability may arise from tortious acts (§ 823 BGB) as well as from duties to ensure safety. In criminal law, the focus is on the guarantor position (§ 13 StGB), e.g., with caretakers who breach their supervisory duties. The prerequisite is always that the autonomy of the endangered person was not unrestricted, such as with minors, the mentally ill, or otherwise impaired individuals.
What special considerations apply to minors in relation to autonomous self-endangerment?
For minors, the assessment of autonomous self-endangerment is particularly nuanced. Legal capacity according to §§ 104 et seq. BGB and criminal responsibility (from age 14, see § 19 StGB) determine whether an action can be considered independent. Generally, children under 14 are not criminally responsible and cannot engage in autonomous self-endangerment in the legal sense. For adolescents, individual maturity and understanding of the consequences of self-endangerment must be assessed, which is subject to judicial examination in each individual case. For custodians and supervisors, there are heightened obligations to prevent self-endangerment; breaches may result in civil liability (§ 832 BGB) and criminal consequences (e.g., § 171 StGB: violation of the duty of care).
How are cases of autonomous self-endangerment legally assessed in the medical context?
In the medical context, autonomous self-endangerment is primarily governed by the patient’s right to self-determination and the requirement for valid consent to any medical intervention (§ 630d BGB). Patients capable of consent may agree to risky or potentially life-threatening treatments. If capacity for consent is lacking (e.g., unconsciousness or lack of insight), any medical intervention is generally unlawful unless performed in an emergency according to the presumed will or taking advance directives into account. Physicians must carefully check that the patient is sufficiently informed and that the decision is made autonomously and free from external influences.
Are there any particularities regarding autonomous self-endangerment in employment and insurance law?
In labor law, the employee’s own responsibility is recognized; nevertheless, occupational safety law (§ 15 ArbSchG) obliges the employer to protect employees from self-endangerment—such as through careless behavior—to the best of their ability. If an employee is aware of a risk and ignores warnings, contributory negligence (§ 254 BGB) may apply in exceptional cases. In insurance law, intentional self-endangerment—notably in accident or life insurance—can lead to exclusion from benefits (§ 81 VVG). Here, proof of autonomous and conscious self-endangerment is key, and criminal investigations often play a decisive role in clarifying the facts.
