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Matthias Zezula em.
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Subject of decision
10 Ob 57/18g
loss of earnings;
Partial withdrawal of action / withdrawal of action with waiver of claim.
5 Ob 11/18f
Ski accident due to collision: The defendant is driving downhill and the plaintiff is driving in the opposite direction.
Objection of contributory negligence because the defendant did not comply with the rules of conduct for skiers.
Causal attention offense of the plaintiff not to exclude. However, the plaintiff's contributory negligence, if any, is associated with a particularly gross violation of the defendant's requirement to drive on sight.
2 Ob 223/15f
The plaintiff pushed head-on against an uphill shidoo, severing a leg. The first defendant was the driver of the shidoos, the second defendant operates the (only) drag lift and is the owner of the shidoos.
The chairman of the second defendant allowed the plaintiff to ski on the slope, but not in the defined area. During the racing break, the plaintiff nevertheless drove into the closed-off area where the accident occurred.
The contract concluded between the plaintiff and the second defendant party had to do with the transportation of the plaintiff with the ski lift as well as the use of the open runway, not however the closed part of the runway.
Analogous application of the EKHG is out of the question.
First defendant's appeal:
The appellate court had incorrectly resolved the question of the "risk connection". The rotating lamp of the shidoos did not have the purpose of warning irresponsible skiers, who enter a runway dedicated to racing and closed to everyone, of the dangers arising from the preparation of the runway.
The first defendant had no contractual relationship with the plaintiff. For him, therefore, only tortious liability can be considered.
the existence of a possible violation of a protection standard within the meaning of §1311 ABGB (Austrian Civil Code) or violation of the duty to ensure safety on the road was denied.
2 Ob 180/16h
Rejection of the audit, since the value of the subject matter of the decision exceeds EUR 5,000, but not EUR 30,000, and the ordinary audit is not admissible.
Application for amendment of the decision of the Court of Second Instance pursuant to §508 (1) ZPO.
9 Ob 19/16h
The defendant, who is resident in Germany, was first treated in an outpatient clinic after a skiing accident and, after discussing in which hospital the operation was to be carried out, was transferred to the plaintiff's private hospital.
The principles on the duty of doctors to provide information with regard to the special nature of the medical service - intervention in the physical integrity of the patient - have been developed, apply with regard to the contractual aspect of the costs.
7 Ob 102/15y
Shortly after his accident of 19 December 2007, the plaintiff asserted claims based on Article 7 AUVB 2006 arising from accident-related permanent invalidity.
If the policyholder suffers an accident-caused disability within one year of the date of the accident, but the degree of the disability is not clearly determined and does not initially reach at least 50%, a pension entitlement arising only as a result of the reassessment in accordance with Article 9.2. AUVB 2006 does not depend on the requirements of Article 9.1. AUVB 2006.
The request for a reassessment within the meaning of Art 9.2 AUVB 2006 is not tied to any particular form.
If there is a new assessment as defined in Art 9.2 AUVB 2006, the degree of disability at the time of the new assessment shall be decisive.
If the policyholder is not satisfied with the out-of-court result in the event of a reassessment, he has the option of bringing an action within the limitation period of § 12 VersVG. The degree of disability determined in such litigation is then not only a factual determination, but also the last part of the reassessment procedure, from this point of view the "final assessment" of the degree of disability within the meaning of Art. 9.2. AUVB 2006 and in this respect binding for further claims for benefits.
8 Ob 141/15s
Due to a not unusual unevenness, the plaintiff was placed in a reserve, which made him stand out.
Existence of an atypical danger which is not easily recognisable or controllable for a skier on a prepared slope.
Content of any concrete obligation on the part of the ski slope operator to ensure safety on the slopes.
2 Ob 186/15i
Fatal ski accident
Obligation to secure the slopes.
The crash site should have been protected by fishing nets as an atypical danger site.
8 Ob 90/15s
The Court of Appeal allowed the appeal on the grounds that there was no case law on the question of whether a snowboarder had to choose a route from which she could see the children without interruption because of children standing about two and a half metres outside the piste, or whether she had to refrain from overtaking another female skier in approach to the children.
2 Ob 108/15v
The defendant came from behind and drove into the plaintiff.
Exceeding the discretionary scope in the assessment of pain and suffering compensation
Requests for a declaratory judgment concerning future damages should have been dismissed, because according to the statements of the court of first instance a complete healing is to be expected and permanent damages are to be excluded.
7 Ob 235/16h
The claim put forward by the applicant within the period laid down in Paragraph 12(1) of the VersVG, namely to have the result of the reassessment carried out before the expiry of the four-year period reviewed, is admissible.
2 Ob 77/16m
Fall from chair lift
Rejection of the appeal in the absence of a substantial question of law: Insofar as the defendant claims in its appeal that the Court of Appeal deviated from the established case-law of the Supreme Court on the question of whether the accident occurred during the operation of the chair lift, it is not in a position to cite a single appropriate decision of the Supreme Court on a case-by-case basis.
8 Ob 95/14z
The first defendant ski association organized and carried out the race training. It was therefore the organiser or operator of this professional race training.
Due to the increased dangers inherent in competitive sport, the operator of such competition events as well as those of training events are subject to an increased obligation to avert dangers. He must not only counter every (ex ante) conceivable danger, but also take such reasonable safety measures that an intelligent and prudent person, cautious within reasonable limits, may consider sufficient to protect other persons from harm.
At the same time, however, it must be taken into account that falls and driving errors during skiing cannot be ruled out. It is also decisive whether and to what extent the skier himself is able to counter the risk of an accident.
8 Ob 81/17w
The applicant and the defendant approached each other in a very flat line without there being any contact between them. The defendant, who had noticed the plaintiff, tried to avoid it by a valley swing to the left, but fell and slipped further down the valley. The plaintiff, whom the defendant had not at all consciously noticed before the encounter, fell by swinging downhill and suffered a fracture of the pubic bone, a torn capsule ligament at the metacarpophalangeal joint of the thumb and bruises.
Subsequently, it declared the ordinary appeal admissible pursuant to § 508 (3) ZPO on the basis of the plaintiff's motion, because it appeared possible that it had ignored facts admitted by the defendant regarding the causal cause of the damage in its decision.
The Supreme Court nevertheless denies the admissibility of the appeal, since a claim for damages presupposes not only the causality of a conduct, but also illegality and fault on the part of the opponent. In case of doubt, according to § 1296 ABGB the presumption applies that a damage has arisen without the fault of another party.
7 Ob 148/14m
When assessing the binding nature of an expert opinion on the amount of damage in accordance with § 14 of the General Conditions for Vehicle Comprehensive Insurance (AKB), it is not the individual items that are decisive, but the overall result of the expert opinion.