Facts
Mrs. Giger, a temporary sales assistant, fell backwards through a completely unsecured floor opening into the basement of a railway station kiosk in Zug in January 1977 and suffered a spinal cord fracture with paraplegia. The kiosk belonged to the Swiss Federal Railways (SBB) as the landowner, but was leased to AZED AG, which had carried out the interior construction.
Mrs. Giger sued the SBB for damages based on Art. 58 CO. The Court of Appeal of the Canton of Bern dismissed the claim, as it did not consider the SBB to be the owner of the work within the meaning of Art. 58 CO, since the interior construction was the responsibility of the lessee.
Considerations
The Federal Supreme Court overturned the judgment of the Court of Appeal and referred the matter back to the lower court for the determination and calculation of the damages. It stated that the kiosk as a whole, including the basement access, was a work within the meaning of Art. 58 CO, the owner of which was the SBB as the landowner. The fact that the interior construction was the responsibility of the lessee did not absolve the SBB of liability under Art. 58 CO.
The Federal Supreme Court emphasized that the owner is generally liable for damages due to defects in a work, even if parts of the work were designed by a third party, such as the lessee.…