The concept of an unclear traffic situation plays a role in overtaking procedures; because overtaking is generally not permitted if a so called "traffic jam" occurs. Unclear traffic situation exists.
However, the question of when a traffic situation is unclear is answered differently, which is also reflected in the sometimes divergent case law.
Keywords related to overtaking
Waiver of the right of way – priority waiver
Special rights – Emergency vehicles – Rescue vehicles – Right of way vehicles
Misleading false flashing of the person with the right of way
KG Berlin v. 04.06.1987: An unclear traffic situation in the sense of StVO § 5 Abs 3 Nr 1 exists, if the overtaking driver cannot reliably judge what the road user in front will do immediately. An unclear traffic situation in this sense does not already exist when the vehicle in front slows down. Even if the driver in front of the vehicle has already moved somewhat towards the middle of the lane, this does not lead to the conclusion for the driver of the motor vehicle following in the required objective consideration that the driver in front of the vehicle will soon turn left without consideration for the following traffic, without first indicating this properly and in good time (no joint liability of the driver overtaking).
KG Berlin v. 13.08.2009: An unclear traffic situation is only given if the left direction indicator is activated on a preceding or stationary vehicle, the following traffic could recognize this and the following overtaking vehicle driver was still able to react appropriately – without danger braking. On the other hand, an unclear traffic situation does not already exist when the vehicle in front slows down, even if it should already have moved a little to the middle of the lane.
AG Krefeld v. 28.01.2010: A traffic situation does not become unclear just because the person in front merely slows down or steers his vehicle to the edge of the roadway. This also applies to a – as such recognizable – driving school car. Precisely because a driving instructor is present during practice rides and exercises control over the driving behavior of his or her students, other road users must be aware of this, even if increased consideration or. Patience is indicated, do not expect the latter to perform unforeseen driving movements at any time. As soon as with a preceding and/or. If, however, the vehicle in front of you has signaled in time to turn or pull out, the traffic situation will generally be such that it is no longer safe to overtake.
KG Berlin v. 16.08.2010: The concept of unclear traffic situation within the meaning of § 5 para. 3 no. 1 StVO essentially refers to the traffic to be overtaken and possible cross traffic, because the oncoming traffic is already covered by § 5 Abs. 2 sentence 1 StVO is protected.
LG Berlin v. 04.06.2012: The traffic situation is unclear if the overtaking driver cannot reliably judge what the road user in front will immediately do. The traffic situation can be unclear if the road user in front slows down the journey. It does not have to be unclear if he only delays driving or the left-turning driver does not indicate his intention by operating the direction indicators and does not move to the center. However, the aforementioned provision does not only apply to the unlawful overtaking of a left-turning vehicle, but also to any overtaking maneuver in an unclear traffic situation for the overtaking vehicle.
OLG Saarbrücken v. 16.11.2017: An unclear traffic situation does not exist if it was not concretely recognizable for the overtaking driver that the vehicle in front of him – here: Tractor-trailer combination – would start an evasive maneuver because of a passenger car parked at the edge of the road.
OLG Hamm v. 14.06.2018: Only a relative slowing down or slowing down of the driving of the preceding vehicle without other failures or the occurrence of further circumstances does not constitute an unclear traffic situation in the sense of § 5 para. 3 no. 1 StVO.
Overtaking in general:
Keywords related to overtaking
KG Berlin v. 25.04.2001: 1. A traffic situation while overtaking is unclear if, under all the circumstances, it cannot be expected that the overtaking will not be dangerous. If the ambiguity refers only to the recognition of possible oncoming traffic and its behavior, then only StVO § 5 Abs 2 S 1 comes into consideration, but not Abs 3 Nr 1, because the latter provision concerns only the cross traffic and the traffic to be overtaken.
2. According to StVO § 5 Abs 2 S 1 only those are allowed to overtake who are able to overlook that during the whole overtaking process any obstruction of the oncoming traffic is excluded. The decisive factor is that the overtaking driver must be able to see at the start of the overtaking maneuver that any obstruction by oncoming traffic can be ruled out over the entire distance that he needs to overtake, including the distance that an oncoming driver can cover during the overtaking maneuver.
KG Berlin v. 25.11.2021: 1. Violations of the duty of care by overtaking in an unclear traffic situation with an (intended) subsequent lane change are not attributable if the overtaking process is interrupted in time and the overtaking vehicle still stops in its (terminating) lane.
2. Road users are (only) obliged to take increased care towards vehicles with yellow flashing lights and therefore have to pay attention to the special danger, here because of the overlength, accordingly.
Approaching driving school car behind truck:
AG Erkelenz v. 14.07.2009: A conspicuous slow driving and getting into the middle of the lane without activating the direction indicator alone does not create an unclear traffic situation. The traffic situation is unclear if the overtaking driver cannot expect a safe overtaking maneuver under the given circumstances, i.E. If the traffic situation is unclear and its development cannot be assessed under objective circumstances. This is the case if a driving school vehicle stands in the middle of the lane behind a truck for a longer period of time and then starts to move. In this case, the driver must refrain from overtaking the driving school car (liability distribution 2/3 to the detriment of the overtaking driver).
Stopping the person with the right of way for one who is required to wait:
Waiver of right of way – Waiver of right of way
AG Pforzheim v. 20.09.2010: If a road user waives his right of way to a road user who has to wait and who wants to turn left out of a driveway, this only means the waiver of his own right of way. The waiver of the right of way does not release the driver who has to wait from his duty of care towards the other road users who have the right of way. If the road user with the right of way has stopped in the middle of the road, there is an unclear traffic situation for the following traffic, which is why following vehicles are not allowed to pass the stationary vehicle. In the event of a collision between the vehicle entering the road and a vehicle following behind, a 50/50 apportionment of liability is therefore correct and reasonable. OLG Schleswig v. 21.04.1993. LG Frankfurt (Oder) v. 21.04.1993. Frankfurt (Oder) Regional Court v.04.1993 and LG Frankfurt (Oder) v. 22.06.2000: An unclear traffic situation already exists if the driver in front of him moves to the middle of the road and slows down.
KG Berlin v. 07.10.2002: Slowing down and moving into the middle of the road of a vehicle in front does not constitute an unclear traffic situation for an overtaking driver.
OLG Cologne v. 28.01.2003: If a motorcyclist overtakes a slowly moving convoy at the beginning of a right-hand bend and collides with a motor vehicle that is properly turning to the left and was possibly hidden by a pick-up truck, then in this unclear traffic situation the motorcyclist is liable for 80%, while the driver of the motor vehicle is liable for 20% due to failure to take a second look.
OLG Koblenz v. 26.01.2004: An unclear traffic situation, which according to § 5 Abs. 3 no. 1 of the German Road Traffic Regulations (StVO) prohibits overtaking if, under all circumstances, safe overtaking cannot be expected. This is also the case if it is not possible to assess with certainty what the vehicle in front will do immediately. This is the case when the left turn signal is activated in the case of a vehicle in front and the following road user was able to recognize it. On the other hand, an unclear traffic situation does not already exist if the vehicle in front slows down, even if it should already have moved somewhat to the middle of the lane.
KG Berlin v. 15.08.2005: An unclear traffic situation exists if it is not possible to judge with certainty what those in front will do immediately. This is the case if the left direction indicator is activated when a vehicle is ahead or stationary and the following road user was able to recognize this and the overtaking vehicle driver was still able to react appropriately – without danger braking.
OLG Celle v. 15.05.2005: The mere fact that a vehicle in front slows down and moves to the right does not create an unclear traffic situation to the effect that its driver intends to turn left or even to turn around in a prohibited manner.
AG Bad Segeberg v. 31.01.2013: An unclear traffic situation in the sense of § 5 para. 3 no. 1 of the German Road Traffic Regulations (StVO) only applies if the overtaking driver cannot expect a safe overtaking maneuver under the given circumstances, i.E. The traffic situation is unclear and its development cannot be judged on the basis of objective circumstances. This is not already the case if a vehicle stops behind a parked vehicle and the brake lights are on.
Munich Higher Regional Court v. 25.04.2014: Against the left-turning driver speaks the prima facie evidence for a violation of § 9 I StVO. The left-turning driver must therefore prove that he has fulfilled his second duty to look back. If the left-turning vehicle violates the second duty to look back, it is jointly liable at 30% if it has moved to the middle of the lane in good time by flashing its left hand lights, because in this case overtaking in an unclear traffic situation is to be assumed with a liability share of 70% to the detriment of the overtaking vehicle.
LG Wuppertal v. 09.01.2015: If a preceding vehicle flashes on the right, reduces its speed and swings out to the left with the vehicle partially using the designated left-turn lane to enter a property on the right, there is an unclear traffic situation for the following vehicle. This prohibits overtaking on the right and leads to a joint liability of 30% at the expense of the overtaking vehicle in the event of a collision.
OLG Dresden v. 18.02.2015: If a motorcyclist in a line of vehicles initiates an overtaking maneuver even though the queue of vehicles in front of him had already reduced their speed due to traffic conditions, it is to be assumed that overtaking is taking place in an unclear traffic situation.
OLG Frankfurt am Main v. 26.01.2016: Reducing the speed of a left-turning vehicle to approx. 10 km/h shortly before the collision with an overtaking truck does not justify the assumption of an unclear traffic situation.
Yellow flashing light:
Special rights – Emergency vehicles – Rescue vehicles – Right of way vehicles
OLG Düsseldorf, v. 04.04.2017: The meaning of a yellow flashing light does not go beyond the warning of danger, § 38 para. 3 sentence 1 StVO. In the case of a cleaning vehicle, the warning refers only to hazards posed by the vehicle resp. The work carried out by it. – An unclear traffic situation i.S. Of § 5 para. 3 no. 1 StVO is not justified by the yellow flashing light alone.
KG Berlin v. 12.08.2010: If a vehicle approaching from the edge of the carriageway, which was enabled to approach by a car in the right-hand lane by stopping, collides with a moving vehicle which has overtaken the car in the right-hand lane on the left, the person approaching is solely liable, even if the overtaking vehicle has then moved back to the right. There is no unclear traffic situation due to the stop. For neither is the approaching vehicle being "overtaken" in the sense of § 5 StVO nor is overtaking in an unclear traffic situation (§ 5 para. 3 no. 1 StVO; furthermore, neither overtaking bans nor § 7 Abs. 5 StVO the protection of road users approaching from the edge of the carriageway.
OLG Saarbrücken v. 16.11.2017: When passing an obstacle (§ 6 StVO) – in this case a stopped car – the overtaking driver has the same duty of care towards the following traffic as the overtaking driver. However, the overtaking party's standard of care is higher than that of the passing party, because the latter has to "pay attention" to the following traffic while the overtaking driver must behave in such a way that any danger to the following traffic is "excluded" is.
Obstacle, flashing warning light:
Narrowing of the road – passing an obstacle
OLG Brandenburg v. 08.07.2010: In the case of an unclear traffic situation with a concrete warning by warning lights, the principle that the non-recognition of obstacles which are unusually difficult to see and which are not indicated by anything is not reproachable does not apply. If a following motor vehicle driver drives into the scene of an accident, which is already secured by hazard warning lights, as a result of excessive speed, he is not entitled to any claims for damages against the person who caused the accident in the first place.
LG Saarbrücken v. 19.07.2013: If a tire puncture occurs while driving on a highway, causing the carcass of the tire to come loose and lead to an accident of the following traffic, there is no prima facie evidence against the driver that he has fulfilled his duty under § 23 para. 1 sentence 2 StVO to check the tires before starting the journey not resp. Has not properly complied with. The rear-end collision cannot shake the prima facie evidence against him by referring to the difficulty of recognizing the tire part if, with regard to a switched-on hazard warning light, there is an unclear traffic situation in which the traffic must also expect obstacles that are unusually difficult to see.
Column behind a slow vehicle:
OLG Dresden v. 30.01.2004: However, an unclear traffic situation does not already exist for the last driver in a line of vehicles behind a slower vehicle because he cannot trust that no other road user in front of him will pull out to overtake.
OLG Rostock . 23.02.2007: Overtaking a convoy by a van on a federal highway immediately behind a village does not yet constitute overtaking in unclear traffic conditions.
OLG Saarbrücken v. 16.10.2014: An unclear traffic situation is given – regardless of the reasons – if, according to the objective circumstances, safe overtaking cannot be expected. The traffic situation is particularly unclear when a convoy is driving ahead and a vehicle is expected to pull out and turn left from the convoy.