Liability of Railway Operators and Gross Negligence of Pedestrians
The Swiss Federal Tribunal ruling 148 III 343 provides significant insight into the limits of railway operators' liability when faced with the gross negligence of victims. This decision impacts the interpretation of Articles 40b and 40c of the Railway Traffic Act (LCdF) and raises critical issues for both victims and operators.
In February 2019, a pedestrian was seriously injured in a collision with a tram operated by the city of A. The victim filed a lawsuit, claiming CHF 30,000 for moral damages under Article 40b LCdF. This provision establishes strict liability (liability based on the inherent risk posed by the existence or operation of railways) for railway operators. However, the Federal Tribunal upheld the city's appeal, granting an exemption based on the pedestrian's gross negligence.
The victim’s behavior was analyzed under Article 40c LCdF, which allows for the exclusion of operator liability in cases of force majeure or gross negligence by the victim. The Federal Tribunal found that the pedestrian, distracted by their mobile phone and failing to follow traffic rules, acted recklessly. This gross negligence, sufficient to justify an exemption, was assessed in connection with specific circumstances, including the layout of the location, traffic conditions, and the victim’s situation.
Previous cases, such as ATF 143 II 661 and ATF 57 II 585, had already established that a victim’s gross negligence can justify an exemption even under a strict liability regime.
In contrast, in ATF 131 III 667, the Federal Tribunal ruled that a pedestrian who zigzagged and suddenly stopped on the tracks without reason did not exhibit an unforeseeable behavior that would justify an exemption from liability.
The ruling ATF 148 III 343 reaffirms that exemption from liability relies on an objective assessment of the severity of the fault and the specific risks associated with railway operations—not on a subjective evaluation. Consequently, railway operators' liability is not absolute. A clearly demonstrated gross fault may justify a complete exemption.
This ruling weakens the traditional benefits of strict liability for victims, providing railway operators with greater legal flexibility while imposing a higher duty of care on pedestrians. It raises an essential legal question: Does the current balance between pedestrian protection and limiting risks for railway operators remain appropriate for today’s needs?
Me Renato CAJAS