Cyclists are allowed to be afraid of dogs
Because a dog came barking at her, a woman spooked and fell. That was an understandable reaction, says the Supreme Court, and damages are awarded. Even with otherwise well-behaved animals, their owners have to be careful, the judges emphasize.
Vienna. In two judgments, the Supreme Court (OGH) takes owners of dogs in the duty. What both rulings have in common is that owners are not allowed to let their animals run around freely.
But the Supreme Court also had to clarify the question of what reaction to animal behavior is humane. In one case, because a woman had fallen off her bike without direct contact with the dog. In the other, because an animal had crashed into the knee of a woman who was already protesting against the dog and had injured her.
"If someone is damaged by an animal, the person who drove it, irritated it or neglected to keep it is responsible," says the legislator. In this case, the owner has to prove that he or she kept the animal properly. The bicyclist had been riding on a farm road when the animal barked and ran toward her. The woman swerved out of fear and fell. The bitch had not been kept at all. She was not leashed and could run around completely unsupervised in front of the homestead of her mistress.
The cyclist demanded compensation for her injuries. She argued that she could not be blamed for any contributory negligence, because her swerving maneuver had been an excusable startle reaction. The first two instances, most recently the Linz Higher Regional Court, found in favor of the injured party. However, the dog owner appealed to the Supreme Court. She argued that it was not even clear whether the dog was already on the road or still on the adjacent grass verge at the time of the accident.
Who is barked at, may make mistakes
The danger by the animal could have realized however independently of it, said the OGH (2 Ob 71/23i). Namely, the danger that even good-natured animals "can cause harm by movements guided by instincts and drives that are not controlled by reason." Now the cyclist's reaction had not been a good one. "If a road user is forced to act quickly in the face of a sudden danger and, under the impression of this danger, takes an - in retrospect - incorrect measure, then this cannot be imputed to him as contributory negligence," however, the supreme court judges emphasized.
In particular, such a startle reaction is to be excused if an event occurs suddenly and "in such a threatening proximity that a hasty action is necessary.
The circumstances for it considered the OGH here as given: The dog had not foreseeably begun to bark only three to five meters before the encounter with the woman and had run directly toward her. The fact that the cyclist then swerved to the left could not be blamed on her. She was awarded full damages.
In the second case, the victim was a woman who was out with her daughter-in-law and her golden retriever dog. They were walking in a spacious dog run area. They encountered another mistress who was walking with her inherently obedient and non-aggressive shepherd mix bitch. Both animals were off-leash. The shepherd mongrel bitch ran quickly toward the golden retriever, then toward the mistress, and then again at high speed toward the other dog. Now the mother-in-law asked the other dog owner to watch her animal, which the woman ignored. A little later the shepherd mongrel bitch again got the desire to run after the golden retriever. The shepherd mongrel collided with high speed against the knee of the mother-in-law.
The injured woman demanded compensation. However, the Linz Regional Court dismissed the claim. In view of its nice nature, the shepherd mongrel had been allowed to run around freely. The Linz Higher Regional Court, on the other hand, awarded the injured woman damages of around 16,600 euros.
Not agreed to the romp
For the OGH (6 Ob 26/23a) it was crucial that the mother-in-law had already complained about the strange dog. Therefore, the owner of the shepherd mongrel could not assume that the later injured person would have agreed to the "dangers usually associated with the joint romping of dogs". Rather, the owner of the shepherd mongrel should have realized that her 27-pound dog posed a danger when it ran fast. The injured party receives the damages.
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Vienna. In two judgments, the Supreme Court (OGH) takes owners of dogs in the duty. What both rulings have in common is that owners are not allowed to let their animals run around freely.
But the Supreme Court also had to clarify the question of what reaction to animal behavior is humane. In one case, because a woman had fallen off her bike without direct contact with the dog. In the other, because an animal had crashed into the knee of a woman who was already protesting against the dog and had injured her.
"If someone is damaged by an animal, the person who drove it, irritated it or neglected to keep it is responsible," says the legislator. In this case, the owner has to prove that he or she kept the animal properly. The bicyclist had been riding on a farm road when the animal barked and ran toward her. The woman swerved out of fear and fell. The bitch had not been kept at all. She was not leashed and could run around completely unsupervised in front of the homestead of her mistress.
The cyclist demanded compensation for her injuries. She argued that she could not be blamed for any contributory negligence, because her swerving maneuver had been an excusable startle reaction. The first two instances, most recently the Linz Higher Regional Court, found in favor of the injured party. However, the dog owner appealed to the Supreme Court. She argued that it was not even clear whether the dog was already on the road or still on the adjacent grass verge at the time of the accident.
Who is barked at, may make mistakes
The danger by the animal could have realized however independently of it, said the OGH (2 Ob 71/23i). Namely, the danger that even good-natured animals "can cause harm by movements guided by instincts and drives that are not controlled by reason." Now the cyclist's reaction had not been a good one. "If a road user is forced to act quickly in the face of a sudden danger and, under the impression of this danger, takes an - in retrospect - incorrect measure, then this cannot be imputed to him as contributory negligence," however, the supreme court judges emphasized.
In particular, such a startle reaction is to be excused if an event occurs suddenly and "in such a threatening proximity that a hasty action is necessary.
The circumstances for it considered the OGH here as given: The dog had not foreseeably begun to bark only three to five meters before the encounter with the woman and had run directly toward her. The fact that the cyclist then swerved to the left could not be blamed on her. She was awarded full damages.
In the second case, the victim was a woman who was out with her daughter-in-law and her golden retriever dog. They were walking in a spacious dog run area. They encountered another mistress who was walking with her inherently obedient and non-aggressive shepherd mix bitch. Both animals were off-leash. The shepherd mongrel bitch ran quickly toward the golden retriever, then toward the mistress, and then again at high speed toward the other dog. Now the mother-in-law asked the other dog owner to watch her animal, which the woman ignored. A little later the shepherd mongrel bitch again got the desire to run after the golden retriever. The shepherd mongrel collided with high speed against the knee of the mother-in-law.
The injured woman demanded compensation. However, the Linz Regional Court dismissed the claim. In view of its nice nature, the shepherd mongrel had been allowed to run around freely. The Linz Higher Regional Court, on the other hand, awarded the injured woman damages of around 16,600 euros.
Not agreed to the romp
For the OGH (6 Ob 26/23a) it was crucial that the mother-in-law had already complained about the strange dog. Therefore, the owner of the shepherd mongrel could not assume that the later injured person would have agreed to the "dangers usually associated with the joint romping of dogs". Rather, the owner of the shepherd mongrel should have realized that her 27-pound dog posed a danger when it ran fast. The injured party receives the damages.
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