03.05.2010 - Ausgabe: 1/2010

Federal Court of Justice, obligatory supervision:

Leave children to play in peace
Don’t constantly supervise children

Decree of the Federal Court of Justice
German Civil Code § 832 Para. 1
A normal-developed child aged 7 and a half is generally permitted to play outside without supervision, if the parents are able to get a general view of what is going on the majority of the time. The VI Civil Senate of the Federal Court of Justice, with the verbal negotiations on 24 March 2009 via the Vice President Dr. Müller, magistrates Zoll and Wellner, magistrate Diederichsen and judge Stöhr recognises: The cost of revising the Decree of the 9th Civil Division of Bochum Court of Law of 25 June 2008 is to be borne by the claimant.

Fact: The claimant is claiming against the defendants for infringement of obligatory supervision of their son M. On 9 July 2003, the 7 years and 7 months-old “M.” and the five years and four and a half months old “P.” both scratched 17 cars, parked in a car park belonging to the housing complex where the defendants and their son live. One of the damaged cars was the claimant’s car. A playground, where M. and others had played before the incident, also belongs to the housing complex.
The district court ordered M. to pay the claimant damages of 678.74 EUR.
The claim against his parents was refused. M. appealed using the appeals procedure; the claimant’s appeal against the claim against the parents - exclusive judgement - was rejected. With the revision, which was granted by the appeals court, the claimant pursued her claim further in her quest to order the parents of M. (hereafter: defendant) to pay damages of 678.74 EUR as co-debtors along with M.
Rationale behind decisions: I. In the appeal court’s opinion, the claimant had no entitlement to damages from the defendant under § 832 Para. 1 German Civil Code. Indeed, the preconditions of § 832 Para. 1 clause 1 German Civil Code were fulfilled because the son of the defendant scratched the claimants’ car. The claimants, however, would have been subject to obligatory supervision in the terms of § 832 Para. 1 clause 2 German Civil Code. With children, the degree of necessary supervision, according to age, character and personality, and also dependant on the predictability of the harmful behaviour and afterwards, determines what reasonable measures responsible parents must take according to reasonable requirements in concrete situations. Here, it constituted a normal degree of obligation of supervision for the defendants - an obligation which isn’t made any more problematic because of dangerous, mitigating circumstances. In particular, M. hadn’t displayed any similar behaviour previously and hadn’t got up to any pranks or displayed aggressive behaviour. The defendants had sufficiently complied with their obligation of supervision. They claimed they had always brought M. up to respect other people’s property. Particular instructions with respect to the specific dangers of handling glass shards was not required because children of M.’s age already understand for themselves that other people’s cars should not be damaged.
Also the supervision itself, in this specific situation, was satisfactory. The defendants had given M. specific instructions not to enter the car park. According to the stage of development of a seven-year-old child, with regards to supervision, you may leave a child to play on a playground unsupervised over a period of up to two hours after instructing them that they not leave the playground. An obligation for constant supervision was not required from the concrete definition of the play situation because it didn’t involve a particularly risky environment. In these circumstances, random supervision was enough, where - between the spot checks - there could be gaps of up to two hours. There was no obligation for any particular intervention because M. was playing and hiding in shrubs near the playground, which is typical behaviour of a child.

II. The statements made by the appeals court hold up against a legal revision.
1. The appeals court assumes that § 832 Para. 1 German Civil Code incorporates with the supervision obligations a shifting of the burden proof of this if – like here – the objective facts of an illegitimate action in terms of § 823 Para. 1 German Civil Code are fulfilled by those in need of supervision. The person responsible for providing supervision must explain and prove what he or she did to fulfil the supervision obligation.
According to constant jurisdiction of the cognitive Senate, the degree of required supervision, according to the child’s age, character and personality as well as afterwards, determines what can be expected of parents in terms of their respective relations. It is important what response parents have to have according to reasonable requirements to prevent the damage to third parties caused by their child. In terms of adhering to § 832 German Civil Code it always depends on whether the duty of supervision was sufficient according to the particular concrete circumstances (cf. Senate’s Judgement BGHZ 111, 282, 285; of 11. June 1968 – VI ZR 144/67 – Insurance Law 1968, 903; of 10 July 1984 – VI ZR 273/82 – Insurance Law 1984, 968, 969; of 1 July 1986 – VI ZR 214/84 – Insurance Law 1986, 1210, 1211; of 7 July 1987 – VI ZR 176/86 – Insurance Law 1988, 83, 84; of 19 January 1993 – VI ZR 117/92 – Insurance Law 1993, 485, 486). Thus it is not important whether the legal guardian generally fulfilled his or her duty of supervision or not; it is far more important whether this happened in concrete terms and in relation to the unlawful damage-inflicting circumstances. (cf. Senate’s Judgement Federal Court of Justice in Civil Matters 111, 282, 285; of 24 November 1964 – VI ZR 163/63 – Insurance Law 1965, 137, 138; of 11 June 1968 – VI ZR 144/67 – ibid.; of 27 November 1979 – VI ZR 98/78 – Insurance Law1980, 278, 279).
2. According to these principles, it doesn’t constitute reversible error that the appeals court viewed the fulfilment of the parental obligation of supervision, on the defendants’ part, as adequate. Contrary to the concept of the revision, it wasn’t viewed as being connected to § 529 Para. 1 No. 1 Civil Process Order or the legal valuation of the district court. As a chapter for a statement, which extends beyond the district court, it transpires that its own legal judgement formed the basis of its decision.
a) In checking whether the defendants have complied with their obligatory supervision, according to the appeals court, the standard of a normally-developed child aged seven and a half is to be applied. Circumstances which could lead to an increased obligation of supervision, like in the case of M., render the revision ineffective.
b) The appeals court must agree - with the underlying development status - that the unsupervised play on the playground over a period of up to two hours and also with the specific instructions of not to leave the playground, is unobjectionable in view of the supervision obligations.
The ruling Senate has shown in its parallel decision recently reached with respect to the other wrong-doer P. (VI ZR 51/08, additional conditions of the contract) that children aged five years old should be able to play without constant supervision outside, for example on a playground and on sports grounds or in a light-traffic street on the pavement and only have to be observed occasionally. Often a supervision gap of 30 minutes at the most is enough in order to supervise the game of the - previously inconspicuous - five-year-old child outside the parents’ flat (cf. also Senate’s Judgement of 19. March 1957 – VI ZR 29/56 – insurance law 1957, 340, 341; of 19 November 1963 – VI ZR 96/63 – insurance law 1964, 313, 314; Bernau Network Access Act 2008, 329 f.; Scheffen/Pardey, “Schadensersatz bei Unfällen mit Minderjährigen” (entitlements to damages for accidents involving minors), 2nd edition, B marginal note 270; Staudinger/Belling/Eberl-Borges, German Civil Code, revised edition 2008, § 832 marginal note 61, respectively with further verification)
This is mainly correct, to a larger extent, for independent children aged between 7 and 8. At this age children don’t require supervision “at every turn” or regular checks at short, approx. half-hourly intervals as with smaller children.
Fundamentally, for children this age, if they are normally developed, playing outside must be granted without supervision in an area, which doesn’t allow parents immediate access or interference. Part of children’s play is discovering and “conquering” new territory. In general this can’t prohibit you if there are no associated dangers for the child or others. In fact it’s enough for children of this age group, who make their own way to school, as a rule, and for parents to overlook the general goings-on, as long as there is no concrete cause for special supervision. Otherwise each rational development of the child would be checked, particularly the learning process and exposure to dangers (cf. Senate’s Judgement of 10 July 1984 – VI ZR 273/82 – ibid with further verification; of 7. July 1987 – VI ZR 176/86 – ibid; of 18. March 1997 – VI ZR 91/96 – Insurance Law 1997, 750).
Adhering to these principles, it can therefore be assumed in the case in question that, as there are no special circumstances pertaining to the development of M or the design of the play area, another appraisal would be required.

c) As it really depends on the child’s characteristics and his or her educational status, to what extent general instructions and rules are enough or when supervision is required (cf. Senate’s Judgement of 19 November 1963 – VI ZR 96/63 – ibid; of 10 July 1984 – VI ZR 273/82 – ibid), for the satisfactory fulfilment of the parental supervisory obligations, all that was required was that the defendant’s son was constantly warned to respect other people’s property. Also after viewing the revision, a child that was instructed not to damage other people’s property would also understand that he or she was not allowed to damage a car with a shard of glass. As the defendants were essentially informed about the whereabouts of their child and had also told M. not to leave the car park, they had done what any responsible parents could reasonably have done to prevent damage to third parties by their child. A further instruction - that scratching a car panel with a glass shard repeatedly can cause considerable damage and the child was not to play near cars with balls, branches, stones and/or throw them and, in particular, not to paint on or scratch cars - was not required, contrary to the concept of the revision in a larger housing area with a car park. With a child aged 7 or 8, you can, in any case, take for granted the ability to follow rational judgements and listen to instructions which aren’t dealt with in the acts addressed in the revision.
d) The appeals court concluded that an infringement of the supervisory obligations did not apply because M. – possibly against his parent’s instructions – was hiding and playing in a shrub near the car park. The appeals court is to accept that this act of hiding and playing in a shrub was just normal child behaviour which is usually close to a playground, and given his age, required no intervention from the parents. As this was typical child behaviour, there is no raised danger, even if this took place near a car park. In particular, the person supervising could not have anticipated that this prohibited behaviour and actions would take place.
3. After everything, the revision of the claimant was rejected. The order for payment of costs is as per § 97 Para. 1 code of civil procedure.

(Federal Court of Justice, Decree of 24 March 2009 – VI ZR 199/08; LG Bochum, Lexetius.com/2009, 847)