Law and traffic: Judgements on bicycle accidents

This article was first published on 18 September 2024 and is now being supplemented with further judgements.

Road traffic accidents are a daily occurrence in Germany: according to the Federal Statistical Office, 2.5 million accidents were caused in 2023 alone; cyclists were injured in more than 94,000 cases. Fortunately, this is a decrease compared to the previous year. The number of cyclists killed in accidents also fell by 5.9 per cent compared to the previous year. Nevertheless, 446 cyclist deaths are still 446 too many.

Many road accidents also have an aftermath in court, with disputes about fault, contributory negligence, questions of liability and claims for damages. Here we publish court judgements on disputes involving cyclists. They provide a guide to how court cases are decided in Germany - even if these are always individual decisions that cannot be generalised.

Slow reaction

A car was travelling at around 35 to 40 km/h in a built-up area in the dark, while a 70-year-old pedelec rider was travelling in the same direction on a cycle path that ran to the left and was open in both directions. When the cyclist turned right onto the carriageway, there was a collision; the car driver sued for damage to his vehicle. He was only 75 per cent successful in his claim; even his appeal did not change his joint liability of 25 per cent. In the opinion of the court, this was based on a faulty reaction. The accident was not unavoidable for the car driver; the left-hand lane was illuminated and the plaintiff had seen the cyclist beforehand. Even if the cyclist could be accused of a traffic offence in several respects, there was not only a simple operating risk for the car, but also contributory negligence on the part of its driver. According to his own statement, the plaintiff was ready to brake. He had braked late in the specific situation; if he had reacted in time, he would have been able to avoid the accident (OLG Hamm of 8 March 2022 - 9 U 187/21, BeckRS 2022, 8686).

A cycle path is not a footpath

A pedestrian entered a cycle path in the direction of the carriageway without paying attention to a cyclist who was clearly approaching; the cyclist fell in the collision. Both court instances confirmed the full liability of the pedestrian. The pedestrian was only allowed to enter the cycle path if he was convinced that he would not endanger a cyclist or hinder his onward journey; he was not allowed to assume this in this case. He had not proved that the cyclist was partly at fault. Cyclists do not have to adjust their speed to the abstract possibility that a pedestrian could step in front of them on the cycle path, even if the pedestrian is in a group on the pavement. In such a situation, the cyclist also does not have to ring the bell or shout to draw attention to themselves (OLG Brandenburg of 12 March 2024 - 12 W 7/24, BeckRS 2024, 7798).

Fall without contact

A cyclist may be entitled to compensation for damages and pain and suffering after an accident even if there is no contact with a vehicle, but there is a direct connection with the cyclist's fall. In the case decided, a cyclist had noticed an ambulance and wanted to dismount on the narrow path to let it pass; she fell and injured herself. She received partial compensation for her injury. According to the court, the fall was the result of a dangerous situation caused by the appearance of the ambulance, even if there had been no contact. The accident had occurred "while operating" the vehicle (within the meaning of Section 7 (1) StVG), which led to a liability of 20 per cent due to operational risk. However, the driver was not at fault (resulting in higher liability) because he had switched on the siren early enough so that the cyclist was not startled by it (OLG Oldenburg of 17 May 2022 - 2 U 20/22, BeckRS 2022, 25911).

Dangerous overtaking on the cycle path

On a 3.5 metre wide footpath and cycle path, the later plaintiff approached a group of cyclists ahead on his racing bike. The later defendant came up behind him at a higher speed and wanted to overtake the plaintiff. Both cyclists were injured in the collision, the plaintiff more seriously. In addition to various fractures with consequential damage, his sense of smell and taste were permanently impaired. The regional court awarded the plaintiff 19,000 euros in compensation for pain and suffering and declared him liable for future damages. The defendant's appeal was unsuccessful. According to the court, the defendant had overtaken the plaintiff and the group in the third row without due care. Simply ringing the bell or shouting was not sufficient, as the defendant had not waited for a reaction and had not been ready to brake until then. The defendant had not proved that the plaintiff had committed an offence; the plaintiff could not be accused of looking over his shoulder with a steering movement to the left, as the defendant had provoked this by shouting. The plaintiff's headphones had not impaired his perception of the shouting, and not wearing a helmet in an accident in 2016 was not to be regarded as a breach of personal due care according to general traffic awareness (OLG Hamm of 22 November 2022 - 7 U 8/22, BeckRS 2022, 47090)

Show of hands

Anyone turning left out of flowing traffic and crossing the oncoming lane to turn into a property must exclude the possibility of endangering other road users. This was the reason given for dismissing the claim of a cyclist who was hit and seriously injured by an overtaking car while turning. The so-called prima facie evidence already spoke in favour of fault on the part of the driver turning off the road; irrespective of this, however, fault on the part of the cyclist was also established here. According to the expert opinion, the car was already recognisably overtaking at the time of the second rear view (claimed by the cyclist). If, contrary to his statements, the cyclist had not carried out the second look-back, his fault was also based on the failure to look back. Finally, on the basis of the sketch drawn by the cyclist himself, it was clear that, contrary to Section 9 (1) sentence 2 StVO, he had not lined up to the centre of the road, but at most to the centre of his own lane. No fault could be established on the part of the car driver; a hand signal from the cyclist was not proven and the speed of the car was only 40 km/h. The operational risk of the vehicle took second place to the gross negligence of the cyclist (OLG Düsseldorf of 7 December 2021 - I - 1 U 216/20, BeckRS 2021, 44905)

Collision when turning left

In accidents between cyclists and motor vehicles, the motor vehicle is almost always held jointly liable because it poses a greater risk in the form of the operating risk. However, this can be different if the cyclist is at fault in several respects. In the case decided, a cyclist was riding on a five metre wide road without a central reservation, a car approached from behind; eye contact was made between the driver of the car and the cyclist. Shortly before a left-hand junction, the car started to overtake and at about the same time the cyclist started to turn left. There was a collision, the cyclist fell and was seriously injured. Her claim was unsuccessful because, in the court's opinion, she had behaved incorrectly in three ways. She had not lined up to the left but had turned off directly from the right-hand edge of the carriageway; in addition, she had not given any hand signals and had breached her duty to look back twice. The car driver, on the other hand, did not have to expect the cyclist to turn off because of the junction on the left and she was not travelling too fast. The simple operational risk of her vehicle took a back seat to the multiple fault of the cyclist (OLG Schleswig of 15 November 2023 - 7 U 106/23, BeckRS 2023, 47037).

Visual driving requirement not observed

A racing cyclist lowered his head for a longer period of time in order to gain momentum for an upcoming hill. In doing so, he hit a car whose driver had stopped briefly on the right-hand side of the carriageway to take a phone call. The court saw no prospect of success for the claim for damages. Even a racing cyclist does not have the right to lower his head in order to negotiate a gradient and to leave the traffic situation unobserved; it is not permissible to ride virtually blind on a public road. If the cyclist had observed the visual driving requirement, he would have been able to see the stopping vehicle in good time and pass it on the left without any problems. Compared to his serious traffic offence, the operating risk of the car was completely secondary; the driver of the car was also not at fault, as he did not have to expect that a cyclist would drive practically blind because his head was lowered (OLG Naumburg, reference decision of 24 October 2023 - 9 U 74/23, BeckRS 2024, 45552).

Cycling on the pavement

An e-bike rider was travelling on a pavement against the direction of travel between two lines marked on the pavement under the assumption that he was on a cycle path. He saw a car coming out of a driveway from the left; the cyclist fell in the collision and broke his leg. His claim for half of the damages and compensation for pain and suffering was unsuccessful. The court ruled that there had been an infringement of Section 2 StVO because the plaintiff had been cycling on the pavement. He was not allowed to interpret the markings as a cycle path, as there were no such signs. The car driver only had to expect authorised pavement users and road users approaching from the left on the carriageway, but not an unauthorised cyclist riding on the pavement. By driving in the wrong direction, the plaintiff created an additional element of surprise for the car driver, who had no view to the left and right before entering the pavement; therefore, he was unable to see the cyclist coming from the right. As a result, the operating risk of the car was completely secondary to the cyclist's grossly unlawful behaviour (AG Berlin-Mitte of 13.1.2023 - 110 C 76/22, BeckRS 2023, 14901).

Bump on the carriageway

A cyclist fell at lunchtime on a minor local road and injured herself. She claimed that the cause was a ten-centimetre-high, unflattened raised section of tar, which she had not been able to recognise in time. Her claim for compensation for pain and suffering was unsuccessful. In the court's opinion, there was no breach of the duty to maintain road safety. The raised tar, which served to drain surface water, was clearly distinguishable from the rest of the road surface and was therefore easily recognisable as an obstacle. As the road was not a cycle path, cyclists could not expect there to be no unevenness. After all, it was only a bump that a cyclist could safely cross at reduced speed and that did not represent a significant obstacle. The cyclist had not adapted her speed to the clearly recognisable obstacle (Regional Court of Cologne of 16 May 2023 - 5 O 16/23, BeckRS 2023, 14580).

Crash at the junction of a country lane

A cyclist was travelling on a cycle path to the left of the main road, which is open to both directions of travel and leads to the left into a country lane and is open to forestry and agricultural traffic. A car approaching the main road was coming from there. The cyclist braked, fell and injured himself; there was no contact with the car. The cyclist's claim was unsuccessful, as the court was of the opinion that the operating risk of the car had not materialised. Although the vehicle was close to the scene of the accident in terms of location and time, it had not contributed to the damage, as there was no danger emanating from the motor vehicle. The plaintiff had not provided any evidence of a critical traffic situation. There were already no objective points of reference for a reliable accident analysis; the authorised expert had not been able to establish a connection between the driving style of the car and the cyclist's fall. In his opinion, the fall over the handlebars was caused by over-braking of the front wheel in a low racing bike position. The cyclist's limited visibility due to a hedge to the left of the cycle path also spoke against a reaction of the cyclist to the car (AG Neu-Ulm of 7 March 2023 - 7 C 447/19, BeckRS 2023, 35383).

From the pavement to the road

A cyclist who had ridden over a lowered kerb of the pavement onto the road and then crossed it in the area of a pedestrian crossing was found to be half at fault for the subsequent collision with a car. The cyclist argued without success that she had been travelling at walking speed - i.e. like a pedestrian - so that the car had had to stop. In the court's opinion, the cyclist had already, prima facie, breached her duty to wait by riding over the lowered kerb onto the road, without ruling out any danger to other road users. At pedestrian crossings with traffic lights - unlike at zebra crossings - there is no priority over vehicle traffic. In this case, it remained unclear whether the cyclist had crossed the road on red. Even on a zebra crossing, priority only exists if the cyclist is walking and pushing the bicycle. The car driver had been able to avoid the collision by stopping in time, so that he had to share half of the liability. In view of the injuries and permanent consequences, compensation for pain and suffering of 20,000 euros was appropriate, whereby the petty settlement behaviour of the insurance company, which had so far only paid 3,000 euros, had to be taken into account (OLG Munich of 16 February 2022 - 10 U 6245/20, BeckRS 2022, 3890).

Branch breakage at the roadside

A cyclist was cycling along a cycle and hiking path when the crown of an oak tree standing at the edge of the path suddenly broke off at a height of six to seven metres and fell on him, causing him serious injuries. His lawsuit against the municipality was unsuccessful in both instances. Due to a lack of dedication, the path in the area in question, which runs on private forest land, was not a public road. Irrespective of this, liability also failed due to the fact that the oak tree was not a "street tree" to be assigned to the path, as it did not stand out from the edge of the forest, but was located in the area of a forest strip. A duty of care under private law was also ruled out. Although the municipality had assumed this obligation from the landowner, liability failed because the break-off of the tree crown was to be regarded as a typical forest hazard against which the forest owner was not obliged to take precautions. According to the external appearance, there is a mere forest path, the use of which is at the user's own risk with regard to typical forest dangers (OLG Hamm of 30 June 2023 - 11 U 51/22, BeckRS 2023, 19403).

The court judgements first appeared in TOUR and were selected and commented on by lawyer Prof. Dr Winfried Born.