The appellate court upheld this decision. The fountain had been clearly visible. It had not been not necessary to erect a barrier around the fountain, which was located in the middle of the path. The defendant did not have to expect that a visitor would walk backwards without looking. The accident was therefore solely attributable to the plaintiff’s gross negligence. However, the Supreme Court partly reversed the judgment: Even though the Baroque fountain was clearly visible due to its size and was by no means an obstacle that can only be noticed by paying close attention to the area, the plaintiff must be granted that the attention of persons within a group of people pursuing a specific goal, such as a tour group visiting a tourist attraction, was distracted from obstacles in their path for various reasons. A fountain surround that protruded only 25 to 35 cm above the usual level of a paved path or square was particularly likely to cause careless path users to trip over it. At the very spot where the fountain was located, it was to be expected that visitors’ attention would be distracted from obstacles on the path by the proximity of the restaurant and other circumstances. The content of the building permit issued for the monastery restaurant was not relevant to the issue of safety obligations. The fountain, without any safety measures, represented an unusual hazard in front of a restaurant entrance, which was not to be expected by visitors to the monastery and restaurant. The Supreme Court therefore found the restaurant operator to be at fault for one third.13 2.1.8. Injury outside the catering tent In case 7 Ob 242/13h, the defendant operated a catering tent during a jet ski championship lasting several days. Some guests took benches out of the tent and placed them in the danger zone on the shore, only ten to twenty meters from the tent. On the third day, the plaintiff was injured while sitting on one of these benches. The OGH14 held that the defendant had been aware of the misplacement of the benches due to what had occurred on the previous days but had still not taken any measures to avoid it. The lower court had therefore correctly hald for a liability of the defendant for breach of duty to ensure guest safety. 2.1.9. Dangerous liquid Case 10 Ob 529/9415 concerned a sixteen months old child who, accompanied by his parents, was a guest at the defendant‘s restaurant. The family was seated 13 OGH judgement of 21.10.1999, 6 Ob 253/99w. 14 OGH judgment of 26.02.2014, 7 Ob 242/13h. 15 OGH judgment of 23.01.1996, 10 Ob 529/94. 195 LIABILITY ISSUES IN THE GASTRONOMY SECTOR
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