Health authorities in Germany are still trying to trace the source of an outbreak of E. coli 0104 that has sickened hundreds and killed at least three, possibly five. But it’s not too soon for me to wonder: Who gets sued in Germany? Who is held accountable for all that sickness and tragedy?
So, out of sheer curiosity, I did a little research into German tort law. I wanted to know what potential claims German victims and their families could establish in order to recover for the injuries they sustained from eating Spanish cucumbers or whatever ultimately proves to be the source. (update: One week after this piece was published, Spanish cucumbers were ruled out as the source of the outbreak.) My research findings seem to indicate a few avenues of recovery.
Similar to tort law in the United States, the law in Germany provides that a claim against a manufacturer or distributor falls under the broad category of product liability. And the German law of product liability is based on three theories: contractual liability, negligence, and strict liability.
From what I gathered, contract law doesn’t seem to be a successful route in German product liability actions. Contractual liability only arises where the claimant and the defendant are in a specific contractual relationship, so a consumer would not be able to sue the manufacturer of a defective product, in this case contaminated food.
More likely, a German would sue under a negligence theory. Germany follows a civil law system based on a set of laws set forth in the German Civil Code, or Bürgerliches Gesetzbuch (BGB). Derived from Roman law, the BGB is broken down into 5 main parts or “books.” The Law of Obligations, or Recht der Schuldverhältnisse, found in Book 2 of the Civil Code, contains the laws surrounding obligations between persons, including tort law.
Section 823(1) of the BGB states, “A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this.” This section serves as the basic, catchall provision for most tort claims.
Reading carefully, however, shows that the law requires the injury to be not only negligent, but also unlawful. Plaintiffs must prove their injuries occurred as the result of an unlawful breach of a duty of care, or Verkehrspflicht. With regard to product liability, the Federal Supreme Court of Germany has held that, “A person acts unlawfully if, during the production or distribution of the product, he or she does not exercise the diligence which is objectively due” and allows a defective product to enter the marketplace. Under this theory, a supplier of a defective product can be held liable even if the producer cannot be identified.
If the claimant is able to establish negligence, the BGB dictates, “Liability to compensate for damage resulting from a tort directed against the person extends to the disadvantages the tort produces for the livelihood or advancement of the injured person.” Essentially this means that a claimant may be awarded pecuniary, or economic damages, and non-pecuniary damages, or what we refer to in the U.S. as damages for pain and suffering. But such pain and suffering awards are far more conservative in Germany than they are in the U.S.
The third basis upon which to bring a product liability claim would be strict product liability. The German Product Liability Act (PLA) provides for a strict liability regime in which certain persons or entities may be held liable for a claimant’s personal injuries regardless of fault. Interestingly, the PLA typically permits recovery of economic and non-economic damages as well; it sets stricter limits on recoverable damages and who can be held liable.
And what about punitive damages, designed to impose sanctions on the defendant in addition to the actual damages? Alas, punitive awards are not recoverable and, in fact, are considered contrary to public policy.© Food Safety News