References without law book default to BGB.

Case - Animal Injury

Facts

Freddy (F) rides his mountain bike on the path next to the Isar. While looking at his smartphone, he is distracted and hits Verena’s (V) sausage dog, Dagy (D). D suffers a fracture of its leg. V brings her beloved dog to the vet, who undergoes surgery (costs EUR 2,000). Can V claim compensation from F?

Solution

Slides Solution

• Issue: Does F owe V compensation of EUR 2,000 according to § 823 I BGB?
• Rule: § 823 I BGB (Liability in damages)
• Application:
  • (1) Injury to a protected legal asset (life, body, health, freedom, property, or other right of another):
    • Problem: Dagy (D) is an animal. Can V have property in an animal?
    • Under § 90a BGB, animals are not things, but the provisions applying to things apply to them accordingly. Property can therefore be held in animals. Dog Dagy is V’s property. → (+)
  • (2) Injury caused by an action:
    • D was injured as F rolled over his leg with his mountain bike. → (+)
  • (3) Causality between action and injury:
    • If F had not rolled over D’s leg, the injury to D as part of V’s property would not have occurred (equivalence/adequacy). → (+)
  • (4) Action unlawful:
    • The infringement of property is unlawful since there are no grounds of justification (e.g. no self-defense or necessity). → (+)
  • (5) Fault element (intention/negligence):
    • F was distracted by looking at his smartphone while riding.
    • Under § 276 II BGB, negligence is the failure to exercise the care required in ordinary life. F failed to pay attention to the path. → (+)
  • (6) Financial loss for V as a result of the harm to her property:
    • Veterinary costs: EUR 2,000. → (+)
• Conclusion: V can claim compensation in the amount of EUR 2,000 from F in line with § 823 I BGB.

Write-Up

Issue: Can V claim compensation of EUR 2,000 from F under § 823 I BGB?

I. Claim for damages under § 823 I BGB

Rule: Under § 823 I BGB, a person who intentionally or negligently unlawfully injures the life, body, health, freedom, property, or another right of another person is bound to compensate the other for the resulting damage.

Application:
1. Injury to a protected legal asset
First, F must have injured a protected legal asset of V. F ran over V’s dog Dagy (D), breaking its leg. Under § 90a sentence 1 BGB, animals are not things; however, under § 90a sentence 3 BGB, the statutory provisions that apply to things are applicable to them accordingly, unless otherwise provided. Thus, an injury to an animal is treated as an injury to property under § 823 I BGB. Because V is the owner of Dagy, F’s act injured V’s property.

2. Conduct
F’s riding of his mountain bike constitutes active conduct, which is defined as conscious and voluntary human behavior.

3. Causality
There must be causality between the conduct and the injury. F’s riding was the equivalent cause (conditio sine qua non) of the collision and Dagy’s leg fracture, as the accident would not have occurred without F’s riding. The injury was also adequately causal, as riding a bike carries the general foreseeable risk of hitting obstacles or animals on the path.

4. Unlawfulness
In German tort law, the direct infringement of a protected legal asset (the Erfolgsunrecht principle) establishes a rebuttable presumption of unlawfulness. There are no indications of any grounds of justification, such as self-defense under § 227 BGB or necessity under § 228 BGB (since the dog did not threaten F). Thus, F’s conduct was unlawful.

5. Fault
F must have acted with fault. F was looking at his smartphone while riding and was distracted. Negligence is defined under § 276 II BGB as the failure to exercise the care required in ordinary life. A reasonable cyclist is expected to monitor the path ahead to avoid collisions. F failed to do so and therefore acted negligently.

6. Damage
The claimant must have suffered a compensable damage. Under § 249 I BGB, a person who is liable to pay damages must restore the state that would exist if the damage-causing event had not occurred (natural restitution). V had to pay veterinary surgery costs of EUR 2,000 to heal Dagy. Furthermore, under § 251 II sentence 2 BGB, veterinary treatment costs for an injured animal are not considered disproportionate merely because they exceed the animal’s value. The EUR 2,000 represents a direct pecuniary damage.

II. Conclusion
Conclusion: V has a valid claim against F for damages in the amount of EUR 2,000 pursuant to § 823 I BGB.