Compensation for pain after a bath day
The BGH explains that it is not enough if the bathing supervision - as in many swimming pools - only ever observes the bather on its high seat.
The Federal Court of Justice (BGH) confirmed in its judgment of November 23, 2017 (Az. III ZR 60/17) that a lifeguard is not obliged to continuously monitor every swimmer. However, she must carefully monitor the bathing operation and the associated events in the water and monitor with regular inspections whether dangerous situations exist or could exist for bathers.
Here, the BGH recognized as follows:
a) The persons employed to supervise bathing in a swimming pool are obliged to observe the bathing activity and thus also what is happening in the water and to check regularly whether there are any dangerous situations for the bathers. The location is to be chosen so that the entire swimming and jumping area can be monitored and also seen into the water (connection to BGH, judgments of October 2, 1979 - VI ZR 106/78, NJW 1980, 392, 393 and of March 21, 2000 - VI ZR 158/99, NJW 2000, 1946 f). Rapid and effective help must be provided in emergencies.
b) Anyone who has grossly neglected a special professional or organizational obligation to protect others from dangers to life and health must prove the non-causality of identified defects that are generally to be regarded as suitable to cause damage according to the type of damage that has occurred. This also applies in the event of a grossly negligent breach of the obligation to monitor swimming pool operations (confirmation by BGH, judgment of March 13, 1962 - VI ZR 142/61, NJW 1962, 959, 960 and continuation of the Senate, judgment of May 11, 2017 - III ZR 92/16, NJW 2017, 2108 Rn. 22 ff, intended for BGHZ and BGH, judgment of November 10, 1970 - VI ZR 83/69, NJW 1971, 241, 243).
(Applied standards: §§ 823 section 1, 839 section 1 section 1 BGB, section 34 section 1 GG)
In the case, the BGH negotiated, it was a question that the defendant operates a swimming pool. This is equipped with a 9 m wide and 16 m long float area in which the water depth is several meters. On the western side of this basin there is a jump rock with a surrounding jump area. This (jump area) in turn is separated from the rest of the swimming pool area by means of orange buoys. At the time of the accident, the buoys were fixed to the pool floor with flexible ropes, but this was a fatal accident for a child.
The then 12-year-old girl caught unexplained circumstances with one arm in the fastening cord of such a buoy and was thereby, at least temporarily, pulled under water. However, the bathing supervisor could not see this incident due to its location. This is noticed that one of the buoys was not in place anymore. However, she did not want to look it up. Instead, the bathing supervisor first interviewed two of the nearby girls, and then - instead of jumping into the water themselves - asked a boy if he could even swim to the buoy and see what was wrong with it. The boy noticed immediately that a girl was pulled underwater.
Had the bathing effort often gone up and down and become active, she would have been able to notice the incident and act accordingly.
The (then) 12-year-old girl suffered from the lack of oxygen significant health impairments. It is inexplicable how such behavior can be manifested when one knows that one has taken over a guarantor position for his bathers.
As a result, the victory before the BGH, and the associated pain and suffering, although pleasing. For the girl, however, it is a small consolation.
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