On 7 October 2016, the Dutch Supreme Court ruled that the Municipality of Nijmegen, as the road authority, was not liable under Article 6:174 or Article 6:162 of the Dutch Civil Code (”BW”) for injuries caused to the plaintiff by tripping over electricity cables from a market stall.
Facts of the case
On 3 January 2009, the plaintiff fell down on the sidewalk after tripping over an electricity cable from a farmers market stall. The cables belonged to the market stall owners and were located on the surface of the road. As a result of her fall, the plaintiff suffered injuries to her knees.
The plaintiff claimed damages from the Municipality, arguing that the Municipality was liable under Article 6:174 Civil Code (deficient superstructure (‘’gebrekkig opstal’’)) and Article 6:162 Civil Code (tort). She argued that the Municipality, as the road authority, was liable under 6:174, as the cables were located on the surface of the road. In case Article 6:174 did not apply, the plaintiff claimed in the alternative that the Municipality, as the road authority had violated its duty of care because the Municipality was aware of the location of the electricity cables, which constituted a dangerous situation.
In its defence, the Municipality argued that Article 6:174 did not apply as the cables did not form part of the road and their presence therefore could not constitute a deficiency within the meaning of this article. Additionally, the Municipality argued that it had not violated its duty of care.
The District Court rejected both of the plaintiff’s claims.
The Court of Appeal confirmed the District Court’s verdict. It ruled that the cables laid down by persons who own a market stall, are not part of the superstructure as defined by Article 6:174, because they are not attached to the road or its constituent structures and do not serve any purpose with regard to the road. Additionally, the Court of Appeal held that placing cables on a road during the opening hours of a farmers’ market, did not fall short of meeting the standard required by the particular circumstances and did not cause danger for persons or objects within the meaning of Article 6:174. After all, farmers’ markets often include many objects that hinder free passage and consequently pedestrians must be cautious. Moreover, the cables were easily visible on the road surface.
Regarding the claim under Article 6:162, the Court of Appeal decided that the situation must be tested against the legal criteria for hazardous negligence (”Kelderluikcriteria”). The Court of Appeal ruled that these criteria were not met, given that (i) the chance of pedestrians tripping over easily visible cables was slim, (ii) the chance of any such incident leading to an accident was slim, (iii) it had been insufficiently proven that measures by the Municipality could have prevented similar accidents, and (iv) it had been insufficiently proven that the risk of injury warranted the Municipality to take far-reaching measures.
Supreme Court judgment
On 7 October 2016, the Supreme Court confirmed the Court of Appeal’s decision.
It ruled that the liability of the road authority under Article 6:174 is limited to deficiencies in the road which are connected to its purpose in the public domain. The presence of an object that does not belong to the road as defined in Article 6:174, which causes danger for persons or objects, is not a deficiency within the meaning of 6:174. Given this fact, there was no need for the Court of Appeal to investigate whether the road satisfied the standard required by the particular circumstances.
If the road authority was aware of the presence of the cables, it could however be liable under Article 6:162, as it has a general duty of care. Whether this duty had been violated must be tested against the legal criteria for hazardous negligence (”Kelderluikcriteria”). The following factors must be considered: the likelihood pedestrians failing to be cautious, the likelihood of accidents, the seriousness of the likely consequences of an accident and the extent to which taking measures would be onerous. Additionally, the Supreme Court considered the origin, nature and function of the objects and the position, function, physical condition and expected use of the road were all important factors.
The Municipality was not liable under Article 6:174 and 6:162 of the Dutch Civil Code in its capacity as road authority for the injuries sustained by the plaintiff by tripping over cables attached to a farmers’ market stall. In its judgment, the Supreme Court considered that the liability of the road authority under Article 6:174 is limited to deficiencies in the road which are connected to its purpose in the public domain. Additionally, the Supreme Court ruled that whether the Municipality had violated its duty of care under Article 6:162 must tested against the legal criteria for hazardous negligence (”Kelderluikcriteria”).