Term Definition: Restaurant (Liability)
In a legal context, the term “Restaurant (Liability)” refers to the entirety of civil, public, and criminal liability circumstances to which a restaurant business or its operator is subject during the course of ongoing operations. The liability encompasses risks associated with the opening, operation, and closing of a food service business—particularly responsibility for damages that may occur to guests, employees, or third parties.
Types of Liability for a Restaurant
Civil Liability
Tortious Liability (§§ 823 et seq. BGB)
A restaurant operator is fundamentally liable under the provisions of the German Civil Code (BGB) for damages caused by culpable action or omission. According to § 823 BGB, the operator is obliged to protect both the physical integrity of guests and their property. Typical liability scenarios include:
- Injuries caused by defective furniture (e.g., unstable chairs)
- Slipping on wet or soiled floors
- Health damages caused by food poisoning or allergenic substances
Liability generally requires negligence or intent.
Contractual Liability (Catering Contract)
Visiting a restaurant regularly establishes a contractual relationship in the form of a catering contract, which may contain elements of service, work, and rental agreements. The operator is liable for defects in the performance, such as the delivery of faulty or spoiled food. Furthermore, liability for defects of the sold product under §§ 434 et seq. BGB as well as the obligation to perform within the contractual relationship (§§ 280 et seq. BGB) applies.
Liability Regardless of Fault (Strict Liability)
Certain sources of danger, such as the use of machines in the kitchen or specific installations (e.g., gas operations), may fall under strict liability, provided there are special statutory regulations for these cases.
Duty to Ensure Safety
Restaurants are subject to extensive duties to ensure safety. Operators must ensure that no avoidable hazards occur for guests, suppliers, or employees. This includes, among other things:
- Adequate lighting of walkways and indoor areas
- Securing slip-prone surfaces
- Regular maintenance and inspection of operating equipment
- Sufficient labeling of allergens and additives in menus
A breach of safety duties can lead to significant claims for damages.
Liability Towards Employees (Employee Liability)
With respect to people employed in the restaurant, the operator is liable for compliance with occupational safety regulations. Key rules include the Working Hours Act, the Infection Protection Act, and the requirements of the Technical Rules for Workplaces. In the case of workplace accidents, in addition to civil liability, the employers’ liability insurance association (Berufsgenossenschaft) may also have recourse, provided gross negligence or intent is proven.
Liability in Cases of Food Poisoning and Hygiene Regulations
Restaurants are responsible for complying with statutory hygiene regulations (Food and Feed Code [LFGB], hygiene regulations, EU regulations). Non-compliance can trigger personal liability for the operator, for example in the event of the spread of infectious diseases or risks to life and health due to contaminated products. In the event of damage, claims for pain and suffering and damages, as well as potential recall obligations, may arise.
Liability for Cloakroom and Valuables
A restaurant is generally liable for cloakroom and valuables brought in only if express safekeeping has been agreed upon, according to the general clauses of the German Civil Code. Exceptions exist when a supervised cloakroom is offered. Otherwise, liability is limited to the basic legal liability pursuant to §§ 688 et seq. BGB.
Liability for Events and Special Cases
If events are hosted in the restaurant, liability for personal injury and property damage can be extended, especially with regard to specific organizer obligations. Liability for subcontractors (e.g., catering, technical support) may, in certain cases, remain with the restaurant as the organizer, particularly if there is a breach of the duty to select and monitor such companies.
Criminal Liability
In addition to civil liability, criminal responsibility must also be considered. Typical criminal offenses in connection with restaurant operations include:
- Bodily harm (§ 223 StGB) in case of harm to the health of guests due to inadequate hygiene
- Fraud (§ 263 StGB) by intentional incorrect billing or mislabeling of food
- Violations of food laws, which can be sanctioned with fines or monetary penalties
Liability under Public Law
Regulatory Offense Responsibility
Violations of the provisions of hospitality law, hygiene and infection protection laws, and working time regulations can be punished as administrative offenses with severe fines. The authorities may also impose further requirements or prohibit the business in the event of repeated violations.
Liability under the Restaurant Act
The Restaurant Act obliges operators to comply with a variety of public law requirements, especially regarding noise protection, protection of minors, smoking bans, and the handling of alcoholic beverages. Violations may trigger the responsibility of the operator, which may extend up to the withdrawal of the license.
Insurance to Limit Liability
Restaurants have the possibility to secure liability through appropriate insurance policies:
- Business liability insurance (protection against third-party claims for personal injury, property damage, and financial losses)
- Product liability insurance (protection in the event of damage caused by delivered food and beverages)
- Financial loss insurance (covers financial losses arising from erroneous advice or information)
It is strongly recommended to take out relevant insurance; however, this does not release the operator from the duty to review and comply with statutory obligations of care.
Limitation and Exclusion of Liability
Under German law, the limitation and exclusion of liability is generally permitted within the framework of general terms and conditions, but is limited by the provisions of §§ 305 et seq. BGB. A complete exclusion of liability for bodily injury and health damages (especially in the case of gross negligence) is usually invalid (§ 309 No. 7 BGB).
Conclusion
Liability in restaurant operations is characterized by a complex interplay of civil, criminal, and public law regulations. Operators are required to carefully fulfill their duties to ensure safety to minimize liability risks. Regular review of business processes and comprehensive coverage through appropriate insurance are recommended measures within the scope of responsible business operations in gastronomy.
Frequently Asked Questions
Who is liable for health damages caused by spoiled food in the restaurant?
The restaurant operator is fundamentally liable to his guests for health damages caused by the consumption of spoiled or contaminated food. The basis, in particular, is the German Civil Code (BGB), namely § 280 Para. 1 BGB (liability for breach of duty), and the Product Liability Act (ProdHaftG) in cases of product defects. Specific food law provisions also apply, such as the Food and Feed Code (LFGB), which obliges hosts to adhere to hygiene and safety regulations. In the event of a breach of duty, for example, due to inadequate control of delivered goods or improper storage of food, the operator is liable for damages (§ 823 BGB), including consequential damages and treatment costs. For negligence or intent, the liability can be broader. In rare instances, liability may be limited via general terms and conditions (GTC), provided these do not conflict with statutory consumer protection regulations.
How does liability work for guests’ cloakroom or valuables?
Restaurants are not generally liable for lost or stolen cloakroom items/valuables. There is no general legal liability; it arises only if special circumstances exist. If the restaurant provides a supervised or expressly designated cloakroom service, a contract of deposit pursuant to § 688 et seq. BGB may be formed, making the operator liable for loss or damage, unless he can prove he was not at fault. For unattended, generally accessible cloakrooms, restaurants are usually not liable. Many restaurants explicitly exclude liability for cloakroom items via notices, which is generally permissible. An exception applies for gross negligence or intent, which can lead to unrestricted liability for the operator.
Can the restaurant be held liable for injuries caused by equipment defects (e.g., loose chair, slippery floor)?
Yes. According to § 823 BGB, a restaurant operator is liable for injuries caused by defective equipment or the state of the premises, based on the so-called duty to ensure safety. This includes the duty to identify and eliminate sources of danger. For example, if a guest is injured by a defective chair, an inadequately marked wet floor, or loose carpet edges, the operator may be liable for damages. Liability does not apply if it can be proven that all reasonable measures to avert danger were taken (e.g., regular checks and warning notices). Liability can increase if gross negligence or intentional conduct by the operator is proven.
Is there liability for allergic reactions to food?
Liability can also arise in cases of allergic reactions, especially if the guest explicitly inquires about allergenic ingredients and is given incorrect information, or if legally required allergen information (e.g., pursuant to the Food Information Regulation (LMIV)) is not properly provided. Operators are obliged to clearly label allergens and to correctly answer any questions. If they fail to do so or provide incorrect information, the restaurant is liable for resulting damages. However, if the restaurant was not informed of an allergy and all statutory information duties were fulfilled, the restaurant is generally not liable.
Are restaurant operators liable for mistakes made by staff?
As a rule, yes. Pursuant to § 278 BGB, the owner is liable for the fault of his legal representatives and so-called vicarious agents, which includes all personnel, such as chefs, waiters, or cleaning staff. If, for example, an employee makes a mistake (e.g., in food preparation or advice on allergens), the operator is held legally responsible. Only if the operator can prove that all staff were comprehensively trained, supervised, and all necessary measures for risk limitation were taken, can liability be individually limited. For gross negligence or intent on the part of staff, liability remains nearly always in effect.
To what extent is a restaurant liable for accidents involving children on the premises or in the restaurant?
Higher standards of care apply for children in accordance with the operator’s duty to ensure safety. Hazards that are still recognizable and avoidable for adults may present significant danger for children. The operator is obliged to take special safety measures if they must expect the presence of children (e.g., child-safe areas, securing stairs, removing dangerous objects). If these duties are not fulfilled and a child is injured, the restaurant is generally fully liable for damages.
Can a restaurant effectively limit or exclude liability via GTCs or notices?
Limiting liability through general terms and conditions (GTCs) or notice signs is only possible to a limited extent. According to § 309 No. 7 BGB, liability for gross negligence or intent cannot be effectively excluded, nor for damages to life, limb, or health (§ 307 Para. 2 BGB). For simple negligence, limitation of liability for property damage is possible under statutory provisions, but due to the special need for protection of restaurant guests, it is legally restricted. Essential safety obligations or statutory information requirements (e.g., regarding allergens) cannot be contractually waived.
What liability applies to damages in the restaurant’s parking lot?
The operator is only liable for vehicle damage in a restaurant parking lot if they can be accused of a breach of duty—for example, inadequate securing of the parking lot or insufficient lighting/marking of hazardous areas. If the restaurant provides parking merely as a service (“Parking at your own risk”), liability is generally excluded if this is indicated by clearly visible notices. If the guest is found to be partly at fault (e.g., incorrect parking, ignoring signs), liability can be proportionally reduced. Here, too, liability for gross negligence or intent cannot be excluded.
