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Legitimate expectations when a pedestrian crosses the roadway

In a recent decision, the German Federal Court of Justice (BGH) has specified the extent to which motorists may rely on pedestrians to behave in a manner that is appropriate for traffic and where the limits of this reliance lie.
The basis for the decision was a collision between a pedestrian and a motorist on a bridge. The bridge has two lanes separated by a center line, a bicycle lane and a sidewalk. The pedestrian and later plaintiff crossed the road at a run without paying attention to the roadway. This resulted in a collision with the car driver and later defendant. The plaintiff was seriously injured in the collision and claimed half of the damages from the driver. The car driver rejected this claim. Neither the action nor the appeal against the judgment of the Regional Court (LG) dismissing the action was successful. In the opinion of the courts of first instance, the plaintiff grossly negligently breached the duty of care incumbent upon him under Section 25 (3) of the German Road Traffic Act (StVO) when crossing the road. He had crossed the road without paying attention to the vehicle traffic ahead, which is why he was not entitled to compensation from the defendant. The BGH now took a different view and referred the judgment back to the lower court.
In the opinion of the BGH judges, the driver was liable on the basis of the operating risk of his car. In principle, this could be dispensed with, but only if the injured party's grossly irregular behavior was determined to be the decisive cause of the accident. The BGH was not convinced by the argument that this would have been the case just because the driver had adapted his speed to the traffic and visibility conditions. Rather, a driver must keep an eye on the entire roadway, including oncoming traffic. In this context, the driver may generally rely on the traffic-compatible behavior of pedestrians, as long as the traffic situation does not give reason for a different assessment. In the specific case, the circumstances gave rise to a different assessment in the opinion of the Federal Court of Justice. According to the defendant driver's own statement, the plaintiff had crossed the roadway at a run. In the opinion of the BGH, the defendant – unlike with a normal walking pedestrian - could not rely on the runner stopping when he reached the center line, abruptly interrupting his run and giving way to the vehicle traffic.
According to the decision of the BGH, the lower courts had failed to recognize that the driving style of the defendant vehicle driver did not comply with the due diligence requirements under traffic law. The BGH therefore overturned the appeal decision of the lower court and referred the legal dispute back to the lower court for a new hearing and decision, taking into account the legal principles established by the Senate.