defendant, H., was the son-in-law of the tavern owner and had intervened to assist his wife, who was serving customers in the proprietors’ absence. The deceased, W., was a retired man who died after being struck by a car. The plaintiff alleged that H.’s act of expelling W. from the tavern caused his death and that H. should therefore be held responsible for the resulting financial loss. The District Court had already dismissed the action at first instance. The essential facts were not disputed. W. arrived at the tavern already inebriated and consumed only a negligible amount of beer while on the premises. After overturning a glass, he became argumentative and brandished a knife he carried in his pocket, threatening other patrons. The defendant’s wife, acting as manager at the time, ordered him to leave. When he refused, he became a trespasser on the premises. The defendant then intervened, took W. by the arm, and led him outside with what the court described as “gentle force.” Later that evening, another customer saw W. lying in a roadside ditch but observed him get up and continue walking. The court established that the defendant was unaware of this incident. After nightfall, W. was struck by a car on a nearby country road and killed; the driver was found not to be at fault. The Higher Regional Court dismissed the appeal and upheld the judgment of the lower court. Its reasoning focused on three key issues: the lawfulness of the expulsion, the alleged abandonment of a person in danger, and whether a general duty of care exists or not. Regarding the lawfulness of the expulsion, the court held that the defendant’s conduct was justified under § 22712 BGB, which governs legitimate defence. The defendant’s wife had exercised the right of control over the premises (Hausrecht) on behalf of the owners, and W.’s refusal to leave constituted an unlawful interference with that right, as well as a continuing threat to other patrons. The use of moderate force to remove him was necessary and proportionate to avert this unlawful intrusion. The court emphasised that the question of W.’s diminished mental capacity was immaterial, since legitimate defence may be exercised even against unlawful acts committed without culpability. The court further dismissed the claim that the defendant had committed the offence of abandoning a helpless person under §221 of the German Criminal Code (StGB). Such liability applies only when the victim is in a “helpless condition” (hilflose Lage), meaning they are unable to protect themselves from imminent 12 “Self-defence against persons (1) An act required for self-defence is not unlawful. (2) Self-defence is the defence required to ward off a present unlawful assault on oneself or another.”. XXXVIII
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