Facts
On March 21, 2016, [A.] , an 86-year-old man, was pushed under the incoming commuter train of the Swiss Federal Railways (SBB) at the Affoltern am Albis/ZH train station by [B.] , a third party deemed incapacitated, and was dragged several meters. [A.] suffered severe injuries. The District Court of Affoltern declared [B.] not guilty due to drug addiction and a psychiatric disorder.
[A.] filed a claim against the SBB for the payment of compensation in the amount of CHF 35,000 plus interest. The Commercial Court of the Canton of Zurich obligated the SBB to pay, as the characteristic risk associated with the railway operation had materialized and an exemption or reduction of the compensation due to the third-party intervention was excluded.
Considerations
The Federal Supreme Court upheld the judgment of the Commercial Court. It stated that the SBB is subject to strict liability under Art. 40b of the Railway Act (EBG), which does not require fault or an infringement. The grounds for exemption under Art. 40c EBG, in particular the behavior of the incapacitated third party, do not justify an exclusion of liability in the present case.
The Federal Supreme Court explained that the behavior of the incapacitated third party should be considered as a partial cause, but not to such an extent that it displaces the characteristic operational risk of the…