8.4. Duty of Care The restaurant owner`s obligation is an obligation by means and by exercising care, according to the care level expected from the ordinary counterparty in the business circle140. Breach of the catering contract`s execution by the restaurant owner results in their contractual liability, as failure to show the necessary care in preparing food results in providing food that does not conform to specifications or is defective or spoiled. The burden of proving the restaurant owner’s negligence in showing the required care by performing falls on the injured party. The restaurant owner who is indebted to show the necessary care of the ordinary counterparty in this business circle can negate fault from themselves, by proving that they did everything they could in order to execute the obligation, or that they did not commit negligence in executing it. Since the services provided by the restaurant owner can be subject to a special supply or provision of services contract (with mandate and work contract elements), they commit to providing the services entrusted to them under the contract. They would have fulfilled this obligation if they had shown in executing it the necessary level of care expected from an ordinary person, or as much caution or care as is needed in performing it141. 140 See as example the decision of the Supreme Court of Georgia (10 March 2003), Beach et al. v. Lipham et al., 276 Ga. 302, 578 S.E.2d 402 (2003), on a medical malpractice action. Obligations of means impose on the party the obligation to do the best they can in furtherance of a specific goal, but without the guarantee that this goal will be reached. This is to be decided basically by the nature of the contract, which also serves as evidence or an indication of what it was that the contracting parties wanted. Finally, however, it is possible for the conclusion to be derived from the specific will of the contracting parties, provided that this does not conflict with law, that they intended the performance in a way different from what is usual in the kind of contract which they have. In any case, the distinction should not be made schematic, see Stathopoulos & Karampatzos, supra n. 10, Nos. 19, 88. 141 In general, it is a duty to act reasonably to those who are likely to be injured by our action. Assume the hole in the restaurant rug had been there for two weeks. Failure to repair it was careless; the restaurant could have anticipated that someone would be injured by it. As a result, the restaurant will be liable for the customer’s injury. Compare the ‘neighbour principle’ stated by Lord Atkin in Donoghue v Stevenson, 1932 SC (HL) 31 et seq., 44 (UKHL 26 May 1932), i.e., the foresight of the reasonable man (“The rule that you are to love your neighbour … must not injure your neighbour ... must take reasonable foresee would be likely to injure your neighbour. Who … is my neighbour? The answer seems to be persons who are so closely and directly affected by my act …”). A strict standard generally applies to the duty to ensure public safety, see the decision of German Federal Court (BGH) of 07.02.07.2019 - VI ZR 184/18, in Neue Juristische Wochenschrift – Rechtsprechungsreport (NJW-RR) 2019, 1304. For example, if there is a risk of icy conditions, the innkeeper must grit the entrance to the restaurant and a car park belonging to the restaurant more frequently than a house owner in general, see the German Federal Court (BGH) of 20.11.1984 - VI ZR 169/83, in Neue Juristische Wochenschrift (NJW) 1985, 482, 483. In a banqueting hall with a smooth parquet floor, tables and chairs may therefore not be fitted with metal glides; instead, they must be set up to be non-slip, see the German Federal Court (BGH), of 30.10.1990 - VI ZR 40/90, in Neue Juristische Wochenschrift (NJW) 1991, 921. Compare infra n. 210, 255 the definition of ‘Verkehrssicherungsplichten’ in the German, Swiss or Austrian legal order. See decisions of the Austrian Supreme Court of Justice (OGH), of 30.09.2009 Nr. 9Ob8/09f, and of 17.07.1996 Nr. 92 APOSTOLOS TASSIKAS
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