operator, for which the package organiser would have to take responsibility. The first instance court dismissed the claim. The piece of paprica had fallen to the floor shortly before the accident; even if the hotel employees had been checking the floor continuously, it is uncertain whether they would have been able to remove the paprica before the plaintiff’s accident, because it had fallen to the floor just before that. Continuous inspection and cleaning of the floor before the breakfast buffet, ensuring the immediate removal of any food residues from the floor, would be an excessive demand on the duty of care of a hotel operator. Every pedestrian is expected to ‘watch their step’. The appelate court confirmed that ruling. Even though it came to the conclusion that the piece of paprica was already lying on the floor when a waiter passed by the buffet to check it, whereby he overlooked the piece of paprica and therefore did not remove it, there was insufficient evidence to assume that the piece of vegetable had been lying on the floor for so long that overlooking it could be considered a breach of the duty of care. The Supreme Court overturned the ruling. If a waiter had not removed a clearly visible piece of paprica which he could have assumed would pose a hazard to guests at the breakfast buffet, even though this could reasonably have been expected of him, the length of time the vegetable had been lying on the floor was irrelevant. Rather, the waiter would have been obliged to pick up the piece of pepper and thus eliminate a dangerous situation.11 2.1.7. A group photo in front of the monastery restaurant An interesting case concerned liabilty of the operator of the famous monastery of Melk.12 A group of tourists who had vistited the monastery had lunch at the resaturant. After leavint the resaturant, they lined up for a group photo in front of a baroque fountain. Due to renovation works, the fountain pool was empty but uncovered. When the plaintiff took one or more steps backwards for the photo, she fell into the empty pool and fractured her arm. The first instance court dismissed the claim. The baroque fountain did not constitute a source of danger requiring safety measures. Visitors to old gardens could or even should expect to encounter such fountains. The plaintiff should have exercised particular caution when walking backwards and should have informed herself in advance about any obstacles in her path. 11 OGH order of 27.09.2016, 1 Ob 158/16s. 12 Also mentioned in Umberto Eco’s famous novel “The Name of the Rose” in which the main character, Adson, was a a novice of this monastery. 194 MICHAEL WUKOSCHITZ
RkJQdWJsaXNoZXIy MTE4NzM5Nw==