The injury was triggered by operating a motor vehicleMaking a claim from § 7 StVG to have, the damage must be Company of a Motor vehicle be causally triggered. The operation of a motor vehicle is defined as follows:
The Operation of a motor vehicle is the putting into use, the starting of the vehicle, which usually ends only with the fact that the vehicle is duly parked on a private property or a garage and is thus no longer in the road traffic.
As long as the vehicle is operated, one assumes a "Operational risk" from. This means that the operation of a vehicle alone gives rise to an abstract risk, which is charged to the owner of the vehicle.
In fact, the end of the operation is not reached by the fact that the vehicle has been parked on public roads. This is because even in the unused condition the vehicle "dangerous" can be. Of course, under these circumstances, a car accident becomes less likely. However, a case has already been decided in which the explosion of a car when ignited was assumed to be "in operation". (OLG Munich, 12.10.09, 17 U 3159/09)
There is no case of force majeure
The attribution of the damage is excluded, however, if a case of the force majeure present. In addition a "external, from the outside by elementary Forces of nature or by action of a third party caused events are based, that even with absolute due diligence would not have prevented can be. A hurricane takes your car with it. Drop him on a cyclist. Even if you had stopped the car immediately and the handbrake was on, your car would have fallen on the cyclist. In this case the accident was caused by force majeure.
No force majeure: A hurricane takes a poster with it. While you are driving, the poster puts on your windshield. Since you can't see anything for three seconds, you drive up to the car in front of you. It is true that the hurricane is an elementary force of nature. However, if you had immediately reduced the speed, you could have prevented the accident. Therefore there is no case of § 7 Abs 2 StVG before, and you must stick.
It is not a black ride without fault
Finally, the owner of a car is not liable if the car was driven by a third party, this happened against the will of the owner, and he could not have prevented this. So if your car was stolen, you are not liable from the damage caused with the car. If, on the other hand, you have left the key in the car and your underage son makes a splash, you are liable because you have not carefully prevented this splash.
A liability from § 7 StVG can (almost) always be answered in the affirmative in the case of car accidents, the Exceptions are very restrictively. It is a matter of § 7 StVG to a so-called "guilt-free" Liability. So, if you are the injured party in a car accident, you must not prove, that the driver of the other car has culpably injured you. The latter can only get out of liability if he can prove that there was a fare evasion or a case of force majeure. So that § 7 StVG in contrast to § 823 BGB more damaged-friendly after a car accident.
Further liability facts:
Another Basis of liability, which is often met in a traffic accident is § 823 Abs. 1 BGB.
Who premeditated or negligent who unlawfully injures the life, body, health, liberty, property or any other right of another is liable to compensate the other for the damage resulting therefrom.
Similar to § 7 StVG must also be bodily injury exist to your disadvantage. Other than § 7 StVG but you have to give the other party an attributable Breach of duty can be accused of. This is present, for example, if the other driver does not sufficient distance has stopped, and therefore hits you, or he gives you the takes right of way. This must be at least negligent, so the other party must have a Breach of duty of care have culpably committed. In some cases § 7 StVG relevant, § 823 I BGB but not.
Example: The person who caused the accident behaved completely in accordance with traffic regulations. When suddenly a child runs across the road, he has to steer the car into a vehicle placed at the side of the road in order not to run over the child. The driver is in this case no fault if steering into the parked vehicle is the only possibility to avoid the accident, a liability according to § 823 BGB is therefore eliminated. However he is liable nevertheless after § 7 StVG, because it is irrelevant for this purpose whether the damage is to be blamed on the owner of the car personally.
Further liability facts, which can play a role regularly with traffic accidents, but are not to be discussed here further, are:
§ 18 StVG, imposing liability on the driver if he is not also the owner of the car.
§ 823 Abs. 2 BGB, if a criminal offense has been committed, such as negligent bodily injury or damage to property.
They are similar to the liability bases already mentioned.
So now that the question of Liability in principle after answered, it is now to Height of the liability go. This does not refer to the amount of claims that you, as the injured party, can claim after a car accident, but to the question of whether you are allowed to claim the entire damage from the person who caused the accident, or just a Part can demand compensation. In other words: We now come to the point of contributory negligence.
Contributory negligence in road traffic
In principle, in the case of a claim for damages, the other party involved in the accident is only liable for the damage the share of the damage carry must, which he yourself has caused. In addition, you must also bear the share that you have inflicted on yourself, so to speak. One speaks here of "Contributory negligence against themselves". Central standard for this is the § 254 BGB:
If the fault of the damaged party has contributed to the occurrence of the damage, the obligation to compensate as well as the extent of the compensation to be paid shall depend on the circumstances, in particular on the extent to which the damage has been caused predominantly by one or the other party.
So was a behavior by both Accident parties causes, the extent of the damage is determined according to the Extent the damage contribution limited.
Example: You are riding your bicycle on the street and overlook the fact that you do not have the right of way at the next intersection. A car going too fast shoots out of the muzzle and knocks you off your bike. The injuries suffered are compensated by an abstract payment of 5.000,00€ as adequate compensation. Through your own Accident contribution, the one on 30 % to be estimated, however, you will receive from the other party only 3.500,00 €.
With regard to the determination of a degree of contributory negligence, a watchful eye is required, especially in the case of insurance companies: In many cases, the insurance company pays out with reference to its own Contributory negligence lump sum at 50 % of the actual claim limited pain and suffering compensation, even if the fault of the other party in the accident is more. In these cases, it is worthwhile to Assistance of a Witness or other evidence to prove that one's own fault was clearly lower is.