Definition and Legal Classification of Operational Hazard
The term operational hazard plays a particularly significant role in the German legal system. It refers to a risk originating from an enterprise (especially the operation of a motor vehicle, machine, or facility) that forms part of strict liability (Gefährdungshaftung). Operational hazard is thus a key legal category for the assessment of liability issues, especially within the context of claims for damages under liability statutes.
Definition of the Term
Operational hazard is the typical danger emanating from a technical device, a vehicle, or any other risk-prone operation that arises from its intended or improper use. Its legal importance lies in the fact that the mere existence of this danger – regardless of individual fault – can give rise to liability.
Operational Hazard and Strict Liability
Strict liability constitutes an exception to fault-based liability in German tort law. In certain cases, it is sufficient that a loss is caused by the use of a potentially dangerous object, regardless of negligence or intent.
§ 7 StVG – Operational Hazard in Road Traffic Law
One of the most well-known manifestations of operational hazard is found in section 7(1) of the German Road Traffic Act (StVG). According to this, the owner of a motor vehicle is liable for damages ‘arising from the operation of the motor vehicle.’ The only decisive factor is that a typical operational hazard of the vehicle has materialized. Liability arises even without any culpable conduct.
Examples of Application
- Traffic accidents without fault: For example, if a traffic accident occurs because an animal crosses the road and it is solely the operation of the vehicle that causes the damage, the vehicle owner may already be held liable.
- Accidents in parking lots: Even in stationary traffic, for example in parking lots, operational hazard may be assumed as long as there is still a connection to the operation of the vehicle.
Operational Hazard in Product Liability Law
Operational hazard can also serve as a connecting factor in product liability law. Here, the risk emanating from a defective product is central, with the manufacturer being liable for damages caused by putting the product into operation or using it, regardless of proof of any breach of duty of care.
Elements of the Operational Hazard
The essential elements of operational hazard can be structured as follows:
1. Dangerous thing or facility
A material object is required (e.g., motor vehicle, machine, facility), from which a danger typically originates. The dangerous characteristic must be able to materialize through normal use or misuse.
2. Causality
There must be a causal link between the operation and the damage. The damage must be caused by the specific operational hazard.
3. Realization of the typical operational hazard
Not every damage that occurs during operation is attributable to operational hazard. Precisely a typical danger conditioned by the operating processes must materialize.
4. No exclusion of liability
Statutory exclusion grounds (for example, force majeure, unavoidable events, or contributory negligence of third parties) can exclude liability despite operational hazard.
Exclusion and Limitation of Liability
The law regulates various limitations of liability:
a) Force majeure
If an accident is caused solely by force majeure, such as a natural disaster, liability is generally excluded, since no specific operational hazard has materialized.
b) Unavoidable event
An accident is deemed unavoidable if it could not have been prevented even with the utmost reasonable care. In this case, liability based on operational hazard does not arise.
c) Contributory negligence
If the conduct of the injured party itself is causative for the damage, liability arising from operational hazard is proportionately reduced (§ 9 StVG, § 254 BGB).
Operational Hazard in Employment Law
In the area of occupational safety, operational hazard usually refers to all risks and dangers arising from equipment, machines, or business processes for employees. Employers are legally obliged to identify such risks and minimize them through protective measures (e.g., § 3 ArbSchG).
Case Law and Developments
The interpretation and application of the concept of operational hazard have been significantly shaped by case law. The courts, in particular the Federal Court of Justice (BGH), have established criteria in numerous fundamental rulings to concretize the scope and limits of operational hazard, as well as the allocation of liability. Examples include decisions on when the operation of vehicles begins and ends, or how to distinguish between unavoidable events and typical operational hazards.
Summary
Operational hazard is a central concept in German liability law, describing the typical risk posed by dangerous facilities, machines, or vehicles. It forms the basis for strict, non-fault-based liability and plays an important role in many legal fields, especially in road traffic law, product liability law, and occupational safety law. Extensive statutory and judicial regulations determine the conditions, scope, and limitations of liability in cases of operational hazard. The concept thus makes a significant contribution to equitable risk and loss allocation in modern risk society.
Frequently Asked Questions
Who bears the burden of proof in cases of damage resulting from operational hazard?
Within the framework of operational hazard, especially under road traffic law (§ 7 StVG), the so-called strict liability applies. This means that the owner of a motor vehicle is liable for damages arising from the operation of the vehicle. The burden of proof for the existence of operational hazard and the causal connection between the operation of the vehicle and the damage rests with the injured party. The owner can only be exonerated if he demonstrates that the accident was caused by force majeure or an unavoidable event and not by an operational malfunction or a violation of traffic safety obligations. In civil proceedings, this constitutes a significant simplification for the injured party, since it is not necessary to prove that the owner acted culpably—only the causality of the vehicle for the occurrence of the damage.
What obligations arise from the legal concept of operational hazard for the entrepreneur?
Entrepreneurs whose operations pose a potential hazard to third parties (e.g., chemical companies, operators of facilities or publicly accessible institutions) are subject to special duties of care under German liability law. They must take all reasonable measures to minimize dangers originating from their business or its operations (hazard prevention and traffic safety duties). This includes the regular maintenance of facilities and technical equipment, precise work instructions for employees, training on sources of danger, documentation of safety precautions, as well as the prompt elimination of any identified disturbances or defects. If these duties are breached, the entrepreneur can be held liable for damages, even if he is not personally at fault (strict, non-fault-based liability).
What typical extensions or exclusions of liability exist in connection with operational hazard?
In the field of operational hazard, there are various extensions of liability, such as extended owner liability in road traffic or for hazardous facilities (so-called strict liability under the BGB, StVG, or Environmental Liability Act). Liability exclusions may apply if the damage was caused by force majeure, which was outside the control of the entrepreneur or owner and whose consequences could not have been avoided even with the utmost care. Likewise, the claim for damages may be reduced based on the principles of contributory negligence (§ 254 BGB) if the injured party acted negligently himself. In some cases, liability may be expressly limited or excluded by contract, although such provisions in general terms and conditions (AGB) are subject to strict control under the law governing general business terms.
How does the principle of operational hazard relate to tortious liability under § 823 BGB?
The principle of operational hazard is based on a non-fault-based liability, whereas liability under § 823 BGB generally requires culpable conduct (intent or negligence). Liability due to operational hazard arises in certain specifically regulated cases—such as the operation of a motor vehicle or a hazardous facility—in addition to tortious liability. It essentially ‘overrides’ tort liability, as it also applies when culpable conduct cannot be proven but the operation itself constitutes a particular risk source. In practice, this means that the injured party regularly receives an easier claim, which can be of considerable significance in cases where the facts are difficult to establish.
What role does insurance play in regulating damages caused by operational hazard?
Statutory strict liability generally obliges entrepreneurs or owners of hazardous operations to take out liability insurance (e.g., motor vehicle liability insurance according to the Insurance Contract Act (PflVG), business liability insurance). Depending on the scope of the coverage, the insurance covers damages that result from the specific operational hazard. The scope of insurance benefits includes material and often also immaterial damages, but is limited by the insurance contract and statutory minimum cover amounts. In cases of gross negligence or intentional breach of duty, however, the insurer may seek recourse or partially or entirely refuse benefits, which can have significant financial consequences for the entrepreneur or owner.
Are there special statutory regulations concerning subsidiary operations (e.g., suppliers, subcontractors) in relation to liability for operational hazard?
For suppliers, subcontractors, and external third parties, the general principles of civil law liability apply. Strict liability due to operational hazard usually only applies to the proprietor or operator of the main facility or installation. However, contractual liability arrangements (including rights of recourse under § 426 BGB) may arise if there is a corresponding contractual relationship between the main contractor and subcontractor, and the damage is caused by an activity within the scope of the respective operational hazard. In individual cases, special statutes (e.g., Environmental Liability Act, Product Liability Act) provide for further liability even for parties outside the main operation.
