It is not always immediately clear who is at fault in a car accident. Courts often find that both drivers are partly to blame for the accident. An overview of the legal situation.
- After the accident: The first to-dos
- In these cases you are not at fault
- In these accidents both are to blame
- You alone are to blame for such accidents
- Provoked accidents: Beware of fraud
After the accident: The first to-dos
There was a crash? What you should do after a traffic accident. © AdobeStock
Call the police. Actually the police does not have to go out with a fender bender. But if you have the feeling that there is something wrong with the accident, it is better to call them anyway. If there is a suspicion of a criminal offense, for example, accident fraud, if the other party deliberately caused the accident, you should even use them. Make a note of the name and office of the officer for possible queries. Note: The police are not there to help with claims for damages. Often they only take the personal data. Save accident traces only in case of a reasonable suspicion of a criminal act.
Photograph everything. Take your own photos of the situation – even if the other party or the police also take pictures. It is especially important to have a general view of the accident site, preferably from different perspectives. But you should also record brake marks and the position of broken-off car parts lying on the roadway in the picture.
Clear the road. As soon as the accident has been documented, you should move your car to the side or drive it away. Do not block the road longer than necessary. Remember to wear a warning vest and a warning triangle.
Show details. Take photos of the damage to your car and the other party’s car – preferably from different perspectives.
Establish identity. Note the license plate number of the other party involved in the accident, their name and address. Let them show you his ID card.
No self-incrimination. Never make an admission of guilt immediately after an accident. Although such a statement is not legally binding, it can lead to problems with the insurer.
Make a sketch. If possible, make a sketch of the accident.
Accident abroad? Everything you need to know, whether you are driving your own car or a rented one, can be found in our Special Accident Abroad.
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In these cases you are not to blame
If you are clearly innocent of an accident, for example because your properly parked car was jostled, don’t let the opposing insurance company trick you. In our special damage settlement you will find out how you can best approach the settlement and enforce your claims.
Reverse-driving: No blame if you stop in time
Reversing drivers are not to blame for the accident if the car is no longer rolling but was braked in good time. This was the case of a woman who was backing out of a driveway. Parked parallel to the road – obscured by a bush – was another car, whose driver drove off at that moment. The woman braked and came to a halt, which was confirmed by a witness. The man drove into her car. Since the woman was standing, neither the prima facie evidence speaks against her, nor she has a contributory negligence (Land-gericht Heidel-berg, Az. 1 S 6/16).
Reversing drivers must be particularly attentive
Actually two cars, which drive backwards out of parking bays and collide, are usually both liable to the half. However, if one of the participants was able to stop quickly before the collision, it cannot simply be assumed that he was partly to blame. By stopping, the driver has fulfilled his duty to avoid an accident as far as possible, ruled the Federal Court of Justice (Az. VI ZR 6/15). In many other cases, however, reversing drivers often have bad cards after accidents. In court, prima facie evidence speaks against them, that is, they should have been particularly attentive.
In these accidents both are to blame
If it goes in the pub highly, is to be counted on with drunken ones. Car drivers must be correspondingly careful. © AdobeStock / Milenko Đilas
Even if it seems clear at first glance who was at fault for the accident – for example, because one person gave way to the other – it can happen that in some situations both parties are still partly to blame. In this case, the drivers must bear not only the damage but also a share of the costs of the expert (Bundes-gerichts-hof, Az. VI ZR 133/11 and VI ZR 249/11).
Reversing drivers are usually partly to blame
He who drives backwards is to blame – this is true in most cases, but not always. For example then not, if both cars drive backwards. The prima facie evidence speaks then namely against both, judged the district court Heidel-berg. The court apportioned half of the blame to a woman who was backing out of a parking space in an underground garage and half to a man who was backing out in the traffic lane. The verdict did not suit the woman because the man was driving against the direction of the arrow. But the Regional Court of Heidel-berg, as the next instance, reduced her guilt only to a third. She should not have assumed that everyone was driving in the direction of the arrow. Increased duty of care applies to driving backwards. At the same time, the man should have been more aware of people backing out of the parking space (Az. 2 S 8/14).
On carnival with drunken pedestrians expect
Who is on the road with the car in the night after Shrove Monday, must be particularly careful not only because of the darkness, but also because of the danger to meet drunken carnivalists. This is what the Cologne Higher Regional Court decided. The case dealt with an alcoholized man in a bear costume who was walking on a federal road at night. He ran onto the roadway, was hit by an Opel Corsa and seriously injured.
Because the bear caused the accident by his behavior grossly negligently, he is liable to 75 percent. However, the remaining 25 percent of the blame is borne by the car driver. He should have been more attentive. On the one hand because of night and weather, on the other hand also because it is not improbable to meet drunken pedestrians during carnival time. Therefore, he, or rather his car insurance, owes the carnival-goer compensation for his pain and suffering (Az. 11 U 274/19).
Drunk people are also likely to be in front of pubs
The following applies in front of pubs: slow down and be ready to brake, advises the German Bar Association (DAV) following a decision by the Kaiserslautern Regional Court. In the case at hand, a drunk man had run out of the pub onto the roadway, where he was hit and killed by a car. In the action for damages brought by the surviving dependents, the court was of the opinion that the car driver was not at fault for the accident, but nevertheless had to bear 25 percent of the damage sum. According to the court, the accident was not an unavoidable event, since it was recognizable from the illuminated sign that a restaurant was located there (Az. 2 S 97/00).
Speeders are generally partly to blame
Driving at 200 km/h. Speeders who drive faster than the speed limit of 130 kilometers per hour must pay part of the damage themselves, even if they are involved in an accident through no fault of their own. The Coburg Regional Court, for example, sentenced a driver traveling at 200 kilometers per hour to pay 20 percent of the damage himself, even though he was not at fault for the actual accident. The speeding driver had collided with a longer car while overtaking, which suddenly moved from the right lane to the left lane in order to overtake a vehicle itself. If the speeding driver had kept to the speed limit, the accident could have been avoided, the judges said (Az. 12 O 421/05).
No scope for accident avoidance. The Higher Regional Court in Koblenz took a similar view when a slow driver suddenly changed to the left lane in gross violation of traffic regulations and a speeding driver was unable to brake in time. Although the lane-changer was held fully responsible, the speeding driver still had to pay 40 percent of the damage. Reason: The driver exceeded the speed limit of 130 km/h by about 60 percent. The scope for avoiding an accident was thus almost nil, the judges found (Az. 12 U 313/13).
Drivers facing jail time in built-up areas
A speeding driver who drove 109 km/h instead of the permitted 50 km/h in built-up areas and was therefore unable to react in time when a car in front of him signaled and changed lanes not only bore full responsibility for an accident, but was also sentenced to two years and nine months’ imprisonment (Federal Court of Justice, Case No. 12 O21/05). 4 StR 501/16).
Car drivers often get a contributory negligence in bicycle accidents
Drivers must expect and be prepared for irregular behavior by cyclists. If a cyclist uses the bicycle lane against the intended direction of travel, he is not solely to blame for an accident, but the car driver is also half to blame. He should have taken the "ghost cyclist" into account and would therefore have been obliged to look in both directions (OLG Hamm, Az: 9 U 12/98). In a similar case, the Higher Regional Court of Munich found a driver 25 percent at fault. The cyclist was on the bike path in the wrong direction when the car came out of a side street. Although the cyclist is 75 percent liable for the resulting accident, the remaining 25 percent is borne by the car driver, since according to the court he was also guilty of a minor breach of duty of care (Az. 10 U 4616/15).
Those who radically insist on their right are partly to blame
Road users must try to avoid accidents – even if they have the right of way, for example. Who insists on his right, however, is also liable, decided the district court Munich. A Mercedes driver was approached by a Porsche in a narrow street where cars were parked only on his side. Both stopped. Although the Porsche driver still had room on the right, he insisted that his opponent shift into reverse gear. But the driver squeezed through between him and the parked cars and got nasty scrapes. Now the Porsche driver has to pay for two thirds of the damage. Because he could see the Mercedes already with turning and could have waited already there. In addition, the Mercedes could not back up because there were other cars behind it, while behind the Porsche everything was free (Az. 343 C 3667/09).
Whoever relies solely on -indicators – has a share of the blame
In road traffic, one must never rely solely on the flashing lights of another vehicle. A motorcyclist waited in front of a stop sign and wanted to turn left into a priority road. A car came from the right that was flashing its lights. She thought that it would turn and drove off. However, the car continued straight ahead. For the accident the woman is responsible to two thirds, so the higher regional court Dresden. Despite the blinker, the car had the right of way. The court made it clear: You can only rely on the -indicator if another factor comes into play – for example, that the -other party starts to turn or becomes much slower. In the case, the car was still traveling at 40 kilometers per hour, while the speed limit was 70 kilometers per hour. That was not enough for the court. (Az. 4 U 1354/19).
Two drivers turn into the same road – shared blame
If two vehicles collide when turning onto a road from opposite exits, both drivers are equally responsible for the accident. Unless it can be proven that one side is more at fault than the other. The traffic flowing on the road has the right of way, but not a vehicle entering from the opposite side (Ober-landes-gericht Karls-ruhe, Az. 9 U 64/14).
By the way: If there is a collision in a parking lot, both drivers are often at fault if one of them does not observe the right-of-way rules. The reason for this is that, strictly speaking, there is no "right before left" rule there, despite the road traffic regulations in force. You can read more about this in our special section on parking lot accidents.
In such accidents you alone are to blame
Whoever hits the car is to blame? In many cases the sentence actually applies. © AdobeStock / Benjamin Nolte
A rear-end collision and an admission of guilt
Only briefly not paying attention and it is already happened. But even if a driver takes all the blame directly after an accident, this has little significance for the clarification of the question of guilt. That decided the higher regional court Dussel-dorf. In the case, a 77-year-old man had braked violently due to an error. The result was a rear-end collision. Afterwards, the driver in front called himself "the one who caused the accident" and took all the blame. Later, however, the court determined that the person behind was too close – and must bear two-thirds of the damage himself. The court did not take into account the 77-year-old’s admission of guilt. An acknowledgement can only serve as an indication of misconduct in the proceedings, according to the ruling (Az. I-1 U 246/07).
Tip: Even if the initial shock is great and an admission of guilt is not binding, it is better not to say anything about the question of guilt at the scene of the accident.
Opened doors: The parked car is usually to blame
Danger of accident. Who gets out, must look around. © Picture-Alliance / dpa
If someone opens his car door to get in, he is to blame for the resulting accident. A driver who carelessly opens the driver’s door is so negligent that he or she is usually solely to blame. Drivers who pass by at a reasonable speed and at a distance according to the rules may trust that a car door will not open unexpectedly (Land-gericht Stutt-gart, Az. 13 S 172/14). A safety distance of half a meter ensures that parked car drivers can carefully open their door a crack wide to see the traffic behind before getting out of the car. The person entering the car must behave in such a way that there is no danger to moving traffic (Hagen Regional Court, Ref. 3 S 46/17).
Example. A woman had parked her car in a parking bay at the edge of a street. Traffic on the road was at a standstill. She got in. There was a truck next to her. As she was sitting in the driver’s seat, the truck drove up and hit the car door with its rear part. The damage amounted to 3,500 euros, which the woman wanted to be reimbursed. However, she must pay for the accident herself, ruled the Munich Local Court (Ref. A. 331 C 12987/13).
By the way: Only after 30 meters is a car parked out fully in flowing traffic. If the accident occurs within these 30 meters, the prima facie evidence is against the driver who has pulled out of the parking space (Amts-gericht Munchen, Az. 344 C 8222/11).
Those who drive on the shoulder get the sole blame
Drivers who want to get ahead faster in a traffic jam on the highway and therefore drive on the shoulder are fully to blame in the event of an accident. In one case, a VW driver collided with a truck on the shoulder of a three-lane highway. The truck driver stated that he had only swerved a little to the right to make room for an emergency lane. The district court in Reck-linghausen ruled that the truck driver should have looked in the right-hand side mirror before swerving. Then he would have seen that several cars overtook him long-samely on the right side. But according to the court, this mistake took a back seat to the VW driver’s double violation: driving on the shoulder is just as forbidden as overtaking on the right. Therefore, the car driver got the sole blame (Az. 55 C 210/13).
Lowered? Only oneself to blame!
Extremely lowered cars can be expensive. A man whose BMW coupe was stuck on a gate rail on his employer’s premises with only seven centimeters of ground clearance could not demand repair costs from his boss. The company owner was not to blame for the accident, since cars with normal ground clearance had no problem with the gate rail, ruled the Coburg Regional Court (Ref. 32 S 87/03). He did not have to warn about the rail either. The driver must judge for himself whether he can overcome the obstacle.