Tram against man - Who is liable?

There have recently been an increasing number of reports of collisions between cyclists or pedestrians and trams. At the beginning of March 2024, two collisions with fatal injuries occurred on the same day in the city of Zurich; one between a tram and a cyclist and one between a tram and a pedestrian. According to the city of Zurich's traffic accident statistics, there were more accidents involving personal injury on public transport in 2023 than the average for the previous years (2014-2022). 163 accidents with personal injury were caused by the involvement of at least one public transport vehicle (traffic accident statistics 2023 of the city of Zurich).

The tram company can be held liable for the consequences of a collision with a tram. The liability of the tram company is regulated in the Railway Act. According to this, the owner of a railway company is liable for the damage if the characteristic risks associated with the operation of the railway result in the death or injury of a person or damage to property (Art. 40b EBG). However, the owner is exonerated from liability if a circumstance that cannot be attributed to him has contributed so much to the occurrence of the damage that it is to be regarded as its main cause (Art. 40c para. 1 EBG). Such causes are, for example, force majeure or gross negligence on the part of the injured party or a third party (Art. 40c para. 2 EBG). In the event of traffic accidents involving a tram, the tram company is therefore generally liable. This applies not only to collisions between a tram and other road users - cars, cyclists, pedestrians - but also if a passenger is injured inside the tram, for example due to abrupt braking.

In such cases, it is often disputed whether the injured party was at fault. This is because the tram has the right of way over pedestrians and other road users (Art. 38 Para. 1 SVG). This even applies to pedestrian crossings (Art. 47 Para. 2 VRV). Therefore, if the tram driver does not violate any signalling or traffic regulations and there is no technical fault, the pedestrian is generally at fault in the event of a collision (BGE 148 III 343, E. 3.4).

Gross self-culpability exists if an injured person disregards elementary rules of care that a reasonable person in the same situation would have observed. The injured person must not merely be inattentive; rather, they must act with extreme carelessness (BGE 148 III 343, E. 3.4). The Federal Supreme Court assumed gross self-culpability, for example, if a pedestrian looking at a mobile phone crosses the tram tracks unexpectedly and does not pay attention to the tram traffic (BGE 148 III 343).

Because the Federal Supreme Court does not often deal with collisions between pedestrians and trams, it also referred to judgements from 1927 and 1931 in the above-mentioned judgement. In the older case, a pedestrian entered the tram track without looking around beforehand; in the more recent case, a woman entered the tram track while she was engrossed in a conversation with a friend. It is fair to ask whether these comparisons are valid. Back then, the volume of traffic on public transport was not as high as it is today. Not only has traffic become denser, it has also become much more complex with new means of transport and new public transport lines. In addition, the everyday lives of road users are likely to have become more hectic. Digitalisation has also fundamentally changed the behaviour of road users. The lower cantonal court - whose judgement was overturned by the Federal Supreme Court - had at least partially taken these circumstances into account. The cantonal court had emphasised that mobile phones are the distraction of our time par excellence and that pedestrians bent over their mobile phones are part of the urban street scene (BGE 148 III 343, E. 4.2.2). The cantonal lower court therefore did not consider the pedestrian's behaviour to be gross self-inflicted negligence.

Everyone can ask themselves the question of whether they devote their full attention to road traffic at all times. Precisely because traffic has become heavier and distractions on public transport have increased - also due to a change in lifestyle and new habits - the operational risk of public transport has become significantly greater. In other words, the likelihood of the operational hazard having an impact has increased. This is particularly the case where tram tracks are not separated from other traffic, for example with barriers - as is sometimes the case abroad. The city of Zurich has responded to this change by installing "Caution tram" markings at pedestrian crossings on school routes or crossings over more than two lanes.

A change in traffic volume and a new lifestyle go hand in hand with new risk conditions. These are not taken into account if the higher risk is placed solely on pedestrians. Distraction caused by a mobile phone should therefore only justify gross negligence in absolutely exceptional cases.