The other day a German classmate was yanking his laptop plug out of the outlet by the cord. I was sitting near the outlet so I mockingly complained that he was liable to smack me in the face with the plug when it finally ripped out.
"Oh yeah," he said, "I should be careful around you. You're American. You would sue."
"Right," I said. "All I've got to do is figure out how to get you into an American court, and you'd be toast."
Well, conflict of laws aside (which would explain how I might be able to get him to an American court, should the need arise for me to actually sue him...), I got to thinking about whether I'd be able to sue him in Germany, should I become injured from his negligent plug-pulling. The question is not academic: I'm going to be tested on it on Tuesday...
Tort law in Germany is not like it is in America, where it is a distinctive area of the law. Instead it is enabled through various statutes spread throughout the German civil code, although mostly in the area of the Law of Obligations, which is where contracts are also regulated.
One section that gives grounds for tortious liability is Sec. 823 BGB par. 1:
Anyone who intentionally or negligently injures life, body, health, freedom, ownership, or any other right of another in a manner contrary to law shall be obliged to compensate the other for the loss arising.
So there is an unlawfulness requirement - an invasion of one of those articulated legal interests, e.g., life, body, health, freedom, etc. - and a requirement for culpability, meaning that there had been either an intentional or negligent act. In my plug example, had it swung up and hit me in the face, the injury I would have suffered would likely have constituted an invasion of my body, and perhaps also my health. As for culpability, if he had an exculpatory justification for his action, he would likely be off the hook. Of course it's not likely that self-defense or necessity could have justified the yanking of the cord. He may have wanted to leave quickly, but he certainly didn't HAVE to... So while I wouldn't suspect that he was trying to injure me on purpose, his cord yanking was clearly negligent. A reasonable person would certainly have grabbed the plug close to the base of it, which he did not.
So there you go. It looks like I can sue him in Germany. And for my injury I can get the costs of curing it, and because it's a bodily injury, money also for pain and suffering. If it has horribly disfigured me and now prevented me from my otherwise gainful employment as a supermodel (stop laughing...), I might even be able to get money for impairment of earnings. However, unlike in the US, it would be paid to me in an annuity and not as one lump sum. Also, unlike in the US, I'd not be able to get any punitive damages. No triple amounts or anything to punish the wrongful plug-puller for his wrongful plug-pulling. Germany finds them offensive to public policy and would not enforce such an award even if I had managed to win it in the US.
There would be another possible avenue for suit in Germany, under Sec. 823 BGB par. 2, if his bad plug-pulling had violated a statute on plug-pulling written to protect people like me. There is a similar principal in American tort law, and like in American law the requirements for its applicability in Germany are fairly narrow. This statute could derive from any area of public or private law, including criminal law, but like all German law, it must very specifically delineate that this particular act is the kind of act it applies to. Furthermore the statute needs to have been written to forestall the kind of harm suffered. Thus, for instance, had there had been a plug-pulling statute designed to prevent outlets from shorting out, then even if his plug-pulling had been forbidden by the statute it would still not enable me to recover for my bodily injury, since that was not the kind of harm the statute tried to prevent.
And there is yet another avenue for liability in Germany under Sec. 826 BGB par. 3, which says that a person is liable if he "intentionally causes harm to another in a way which offends contra bonos mores." This section addresses behavior so shocking and offensive that no resulting harm could possibly be given a free pass. If the person intended to cause harm, or should have known harm might result, he'd be liable for it. However, I don't think the plug-pulling necessarily would be covered by this section. It just doesn't seem all that egregious.
But one other feature of German tort law, a logical extension of the fact that tort law lives in German law so close to contract law, is that courts can often construe contractual duties between a tortfeasor and an injured party. This construal is aided by the fact that there is no doctrine of consideration in German contract law, which means that contract law can function as sort of a gap-filler when the tort statutes don't seem to be providing redress to an injury on their own.
Still, I don't think such a construct is going to help me here. A court would have to go to great lengths to find a contractual link between me and my classmate. This practice of finding contractual liability is more useful when there's a question of vicarious liability. German law tends to allow for it only in very limited circumstances. It first requires that the party who caused the injury actually be the defendant's servant. Moreover, the term "servant" has a specific definition, being limited to only those under the defendant's supervision or control. (Or, as in the case of professionals, to those who are part of the defendant's organization.) Then the harm needed to have been caused during the course of the servant doing his assigned task. There's some leeway on this requirement: it doesn't mean that the servant had to have been directly told to do the specific action, but if it was part of the servant's ordinary duties then it would count.
Still, the same action may not subject a master defendant to liability if the servant performed the task on his own accord and not as part of his job. The master defendant also has the ability to defend himself by showing that it took proper care in selecting, training, and supervising the servant. This is where the courts' ability to construe a contract helps plaintiffs, because as long as the defendant still somehow owed the plaintiff a duty, then it doesn't matter how much care he took if the resulting injury still essentially constituted a breach of that contractual duty.
Of course, this legal construct will not help my claim for the plug-pulling injury. My classmate was not anyone's servant, nor were we otherwise contractually involved. What a shame.
But I guess that's ok. Disaster was averted and it turns out the plug was pulled out without causing serious bodily injury to anyone after all.
Now, about that modeling career...