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Karlsruhe / Bochum (dpa) - After the fatal fall of a demented man from the window of a nursing home, the Federal Court of Justice (BGH) is negotiating today about the widow's claims for pain and suffering.
Her husband, who was born in 1950, fell out of a roof window on the third floor of the Bochum facility in the summer of 2014 and died months later as a result of the injury.
The widow, as co-heir, wants the home operator to pay at least 50,000 euros in compensation for pain and suffering plus interest.
Both the regional court in Bochum and the higher regional court (OLG) Hamm as previous instances have denied her the money.
The woman in Karlsruhe is taking action against this.
Whether there will be a judgment on Thursday is open (Az. III ZR 168/19).
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According to the BGH, the widow argues that the home has not taken adequate protective measures.
The distance between the floor and the window was 1.20 meters.
In front of the window there was a 40 centimeter high radiator and a window sill 70 centimeters high.
The window was not secured, so that the demented man could have opened it without any problems.
There were also indications that the man was endangering himself.
The previous instances, however, supported the home operator's view, according to which it could not be expected that the dementia patient would climb out of the window.
The fall occurred in the “normal, everyday danger area”.
The courts decided that the company had not breached its contractual duty of care or the general duty of road safety.
The duties of the homes are also limited and must be "realizable with a reasonable financial and human effort".
In its judgment, the OLG admits that radiators and window sills "made the ascent easier as a ladder, so to speak".
"Because of these climbing aids alone, the defendant's employees did not have to expect that a resident, especially the testator, would try to climb out of the window."
Even if the man had recently enjoyed spending time in the garden, the home workers should not have had to worry that he would try to get into the garden through the window - especially since you cannot see it from the window of his room.
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The SBO senior citizen facilities of the city of Bochum gGmbH did not want to comment in advance of the procedure.
The German Foundation for Patient Protection gave the plaintiff little hope: For relatives, the legal process is often hopeless, said board member Eugen Brysch of the German press agency in the run-up to the negotiation.
Each federal state regulates the protection of those in need of care and assistance in its own building code.
A decisive role is played by whether it is a new building.
"That is why fall protection, scalding and fire protection are practically regulated differently in the more than 15,000 nursing homes," explained Brysch.
"Since the porters' obligation to guarantee is also rather full of holes, there will hardly be any institutions that will be liable for damages."
Even the proof of an individual guilt by a nurse usually fizzles out.
© dpa-infocom, dpa: 210114-99-18283 / 2
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Announcement by the BGH
OLG judgment