1 facts of the case
An accident occurred on a private path between a cyclist and a minor pedestrian. According to the owner's dedication, the private path was reserved for pedestrians and cyclists and marked accordingly by signs.
The cyclist, together with his wife, who was also cycling in front of him, wanted to pass the underage pedestrian, who was on the right-hand side of the path, on the left. However, immediately before passing, the pedestrian changed to the left side of the road. The cyclists did not make themselves known by ringing or shouting. Due to the short distance and the braking manoeuvre initiated by his wife in front of him, the cyclist hit his wife's rear wheel and was injured during the fall. The two bicycles were also damaged.
The cyclist sued the underage pedestrian for damages. The cyclist based his claim on § 76 StVO (Road Traffic Act), which prohibits pedestrians from entering a roadway unexpectedly. If there is no separate pavement or road bank, the pedestrian has to use the outer edge of the road. He may only enter a roadway after he has made sure that no other road users are endangered.
The court of first instance and the court of appeal dismissed the claim.
2 Legal assessment of the Supreme Court (OGH 2 Ob 38/23m)
The Supreme Court determined that the accident did not occur on a footpath and cycle path as defined by the Austrian Road Traffic Act (StVO), as the path did not have such a sign "footpath and cycle path" as defined by the StVO. Furthermore, there was no roadway as defined by the StVO, because it was a private path for pedestrians and cyclists that had been dedicated by the owner.
Therefore, the Supreme Court denied the application of the StVO to the accident and the pedestrian could not be accused of a violation of § 76 StVO. The Supreme Court also denied an analogous application of the StVO for this private road, in particular the requirement to keep to a certain pedestrian walking line. A pedestrian does not necessarily have to walk on the right side on such a shared path (no separate traffic routing).
However, there is also a general legal obligation not to endanger anyone's safety, physical integrity or property. Duties of care and safety obligations are derived from this. However, the two cyclists did not give any warning sign (ringing, shouting). In the absence of warning signs, the underage pedestrian was entitled to trust that no cyclist was coming and that she could have endangered the cyclist by stepping to the left. She did not act illegally.
- If a property owner wants to have the StVO in effect for his private path, he must signpost his path accordingly.
- Cyclists must also ring or call before passing on private paths dedicated to pedestrians and cyclists, otherwise they will bear the consequences or the risk of damage in case of an accident.