Árpád Geréd February 25 2010 Contributory negligence in product liability cases BMA Brandstätter Rechtsanwälte GmbH | Product Regulation & Liability - Austria Árpád Geréd Product Regulation & Liability Supreme Court decisions that overrule previous decisions by creating new legal rules are rare. However, Supreme Court decisions that overrule previous decisions without creating new legal rules are even rarer. A recently published Supreme Court ruling is one of these uncommon cases.(1)The defendants had either produced or (partially) assembled a filter system for the plaintiff's swimming pool. While performing the recommissioning procedure after the winter, the plaintiff forgot to open a valve, which resulted in overpressure of 0.1 bar in the filter tank. This small amount of overpressure was enough to cause the tank to explode and injure the plaintiff badly.The claim was granted on its merits by the Vienna Regional Court, which denied any contributory negligence on the plaintiff's part. After this judgment was affirmed by the Vienna Higher Regional Court, the defendants appealed to the Supreme Court, arguing that due to his failure to open the valve, the plaintiff should bear a substantial share of the responsibility for the accident.The Supreme Court dismissed the appeals as inadmissible, ruling that questions of individual responsibility and contributory negligence must be decided on a case-by-case basis and therefore cannot constitute a material point of law (which is a mandatory requirement for the admissibility of an appeal to the Supreme Court).This opinion itself is not new. In connection with product liability it was first held in Supreme Court Decision 7Ob201/03i, which was cited in the present ruling. However, this time the Supreme Court went much further: it decided that due to the individuality of each case, it is impossible to establish general rules on the weighting of responsibility, and that such general rules cannot even be deducted from any previous Supreme Court decision.So what does this mean in practice? First, the legal opinion that questions of individual responsibility and contributory negligence need to be decided on a case-by-case basis and therefore cannot constitute a material point of law has been confirmed and may therefore be regarded as binding, at least in product liability cases. As a result, any product liability-related appeal to the Supreme Court which deals only with individual responsibility and contributory negligence should be dismissed as inadmissible.Second, as far as product liability cases are concerned, the courts are now free to consider the existence and amount of individual responsibility and contributory negligence, and need only consider legal provisions. They are no longer bound or constricted by any general rule which may be derived from a higher court's decision; such decisions can now be dismissed by simply referring to the new Supreme Court ruling. However, rules established by a similarity between individual cases are not affected. Since the line between individual rules and general rules can be blurred at times, there is still a chance that some courts will not diverge too far from existing decisions, or that they will at least distinguish the case at hand from similar former cases decided by higher courts.Since product liability is not exclusive to any senate of the Supreme Court, it cannot be ruled out that another senate will overrule this decision and find that general rules may be deducted even from case-by-case decisions on contributory negligence. On the other hand, it is also possible that this legal opinion will be adopted for other areas of law, such as traffic law or general tort law.It remains to be seen what will happen in the future. For now, it is clear that contributory negligence in product liability cases is significantly less predictable than before.For further information on this topic please contact Árpád Geréd at BMA Brandstätter Rechtsanwälte GmbH by telephone (+43 1 535 16 30), fax (+43 1 535 16 30 40) or email ([email protected]). Endnotes(1) Decision 3Ob171/09g, October 22 2009.