City of Zurich not liable for tram accident caused by pedestrian distracted by his mobile phone

Swiss Federal Supreme Court Decision 4A_179/2021

On 20 February 2019, a pedestrian was seriously injured in a collision with a tram (streetcar). The pedestrian was standing at a tram stop with his back to the approaching tram and his eyes on his mobile phone when he abruptly entered the track area without looking to the left. In doing so, he was hit by an incoming tram. He demanded compensation from the City of Zurich as the owner of the transport company on the basis of Article 40b Para. 1 EBG (Federal Railway Act). Both the District Court and the Cantonal Appellate Court affirmed the liability of the City of Zurich. The Federal Supreme Court, however, upheld the federal appeal filed by the City. The issue in dispute before the Federal Supreme Court was whether the city can discharge itself from liability on the basis of gross negligence on the part of the pedestrian.

The Court considered that a third party's conduct only constitutes a main cause for the collision where such conduct must be seen to be the prevailing factor, such that the cause attributable to the liable party no longer appears to be legally relevant for the injury that occurred. The accident had occurred at a clear location and in good weather. Furthermore, the pedestrian was familiar with the location and aware of the dangerous situation, which he had brought about unnecessarily. The pedestrian's conduct was therefore considered to be violation of traffic regulations and thus seen as the main cause of the accident. Hence, the Court found the City of Zurich not be liable for the accident.

Commentary: The Federal Railway Act (EBG) provides for non-contractual strict liability. This means that fault is not a prerequisite for liability. The owner of a railway company is thus not afforded the possibility of attempting to exonerate himself by proving that he exercised due care. The only possibility for the owner to exempt himself from liability arises from Article 40c EBG which requires gross negligence on the part of a third-party. Looking to the left and to the right before crossing a roadway is considered an elementary traffic rule. The failure to observe this simple precautionary measure in our view rightly amounts to gross negligence.

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