Is there a design flaw

Are designers personally liable for design errors?

2. Civil Liability to Third Parties

Liability under civil law - for example of a company (Figure 1, 2a) or one of its employees (2b) - presupposes, firstly, that an obligation has been violated (e.g. construction or manufacturing obligation) and, secondly, that this was done negligently, i.e. through "Failure to exercise due diligence in traffic" (§ 276 BGB in Germany) or "From culpable ignorance, or from lack of due attention or due diligence" (§ 1294 ABGB in Austria).

Because the chance of success is much greater, an injured party will primarily claim damages from the manufacturer - i.e. the company - and not an employee for two reasons:

  • First, the manufacturer - i.e. the company - is liable regardless of fault if the Product Liability Act (in Germany ProdHaftG and in Austria PHG) is applicable
  • Second, the employer - that is, the company - must also be largely responsible for mistakes made by employees "take".

But since 1975 the Federal Court of Justice (BGH) has ruled that injured parties can not only claim damages from the manufacturer, but from every employee who has a "holds a prominent and responsible position"(BGH, judgment of 3.6.1975 - VI ZR 192/73). If one sues an employee,

  • First, you have to prove your leadership position,
  • Second, you are only successful if this employee has violated his duty and
  • Thirdly, this employee must have acted culpably = negligently, because no-fault liability always applies only to the manufacturer, i.e. the company, but not to its employees - not even to the managing director!

Employees could be sued in particular,

  • if the company is insolvent and
  • if the injured party - for whatever reason - wants to bring about a sanction against an employee.

If an employee is sued, he has - because he did not act privately but in the company's interest - a so-called indemnity claim according to the principles of internal compensation (see 1.) against his employer.

For an employee there is protection or security on several levels:

  • initially, of course, because he did not breach any legal obligation or at least no breach of duty was recognizable to him, i.e. he did not act negligently,
  • in fact because you are more likely to sue the company,
  • legally because the lawsuit against an employee is much more difficult and
  • "Insurance-related" through the internal compensation for damages, which he can improve in the employment contract in his favor.

Because of these different protections "In the end, only in extremely rare cases should an employee face a serious risk of having to pay out of his own pocket for damage that he has caused in the course of his work for third parties" (According to Richter a.D. Peter Anhalt, Liability for defective products and for (consequential) damage caused by them, 2003, 66.4.3, p. 220.), but this cannot be ruled out, as examples from practice show:

Case study 1 - Explosion of a liquefied gas system 1:

The manufacturer built a liquefied gas system in 1989. In June 1990 a ministry circular provided that "A redundant, as diverse as possible safety device must be available". In November 1990, the manufacturer's technical manager converted the system. In doing so, he did not inform the operator about the new safety requirements, possibly because he was not familiar with them or because he was not aware that they had an impact on the retrofitting. The operations manager was seriously injured in an explosion and an expert determined that the accident would have been avoided with the second safety level. The operations manager successfully sued the technical manager for compensation for pain and suffering.
The court ruled:

  • First, there is no grandfathering because existing systems must also be retrofitted,
  • Second, the manufacturer does not have any operator obligations, but the technical manager does "Should have pointed out the new requirement, particularly on the occasion of the retrofitting in November 1990, and installed such a safety device"because he "Was the one who had the necessary expertise and he should have advised" and
  • Thirdly, the technical manager is liable according to the principles of personal product liability because he is the project manager in "Prominent and responsible position" was.

1Judgment of the Düsseldorf Higher Regional Court in October 1998. See the case discussion "The explosion of the liquid gas system, liability for damages of the technical manager for construction errors," acquittal "of the executing manufacturer employee and contributory negligence of the injured operator employee" Cordula and Thomas Wilrich, in: Journal for Occupational Prevention and Accident Insurance (BPUVZ) issue 2/2015.

Case study 2 - Explosion of a drying plant 2:

The manufacturer builds a drying system and later supplements it with a heat exchanger. An employee puts the system into operation on site. The system explodes due to an incorrect flap position. The property insurer successfully claims the (insolvent) manufacturer and the employee for reimbursement of the damage amounting to a little more than € 1,000,000. The expert said "The situation in Germany could only have been correctly assessed by 10-20 particularly skilled people". The court assumed that the employee had the "Could not recognize the tragic dimensions and effects"that "But that does not release him from fault liability".


2Judgment of the Higher Regional Court of Celle from May 2004.


3. Criminal product liability

The third liability risk is criminal sanctions. It says: “Not only the members of the management can be punishable, but also every employeewho is involved in the development, manufacturing and marketing process " - and: "Anyone in a team that agrees to a decision that causes a product defect and which later leads to an infringement of legal interests can be criminally responsible for it" (Eisenberg / Gildeggen / Reuter / Willburger, Produkthaftung, 2008, pp. 149 and 152).

That is true, but these statements are also very general. Because liability always has numerous requirements that have to be proven, especially again

  • the breach of duty,
  • negligence, i.e. recognizability and avoidability and
  • the causality of the breach of duty for the damage, i.e. that the breach of duty by the designer caused the accident.

On the one hand, the state has to prove all of this to the designer with a probability bordering on certainty - otherwise the following applies: "In doubt for the accused" ("In dubio pro reo"). On the other hand, the situation in criminal law is somewhat stricter than in civil law damages law (described under 2.)

  • First, there is none "Internal compensation for damages" - a convicted person must always bear the punishment himself. The voluntary acceptance of the punishment of an employee by the company is not always easy because managing directors cannot give away company money.
  • Secondly, individual criminal law applies and employees and not companies are convicted (in Germany only and in Austria also - despite the VbVG).

Since there is no specific penal norm on product liability, it is almost always about negligent bodily harm or negligent homicide. A distinction must be made between two case constellations:

  • the placing on the market of defective - unsafe - products and
  • the non-recall or the non-retrofitting of defective - unsafe - products.

Not recalling or retrofitting products that are known to be dangerous or should be recognized can be very risky - e.g. in the well-known leather spray judgment of the Federal Court of Justice because of more deliberate convicted of dangerous bodily harm (BGH, judgment v. 07/06/1990 - Ref. 2 StR 549/89). But the placing on the market of unsafe products is more tragic because it involves design or manufacturing defects that were initially not recognized (otherwise they would have been avoided), but later - in the event of damage - the accusation comes of having acted negligently, precisely because they Errors have not been recognized. This accusation hits the designer deeply in his engineering honor.

There are two key questions:

  • Breach of duty: Has the designer violated his design, manufacturing or instruction obligation?
  • Fault: Was the breach of duty negligent, i.e. a company employee "the care required in traffic is neglected" (This is how it is formulated in Section 276 of the German Civil Code) or caused the damage "from culpable ignorance, or from lack of proper attention or diligence" (This is how § 1294 of the Austrian ABGB formulates it)

It can be difficult to determine whether an obligation has been violated. Of course, this is particularly about what the relevant safety standard is (recognized rules of technology or state of the art) and to what extent aids - such as technical standards - reflect this standard correctly. When, after 52 days of negotiation, the process after the ICE accident at Eschede was also suspended against employees of the bike manufacturer, the judge said: "The statements of all experts so far have impressively shown that the assessment of the adequate safety of the wheel tire is not accessible to simple solutions. Depending on the approach, a large number of influencing variables must be taken into account, which are often complex in relation to one another". Just as difficult as the complex technical questions is then the decision as to whether a designer can be accused of negligence, that is, that he acted carelessly. In the Monza-Steel judgment, which was about car tires, the LG Munich says , in the case of negligence, an expert does not have to be measured by average requirements, but rather by "Optimal, what can be achieved in the concrete life situationn "(LG Munich, judgment v. April 21, 1978 - IV Kls 58 Js 5534/76). Again the judge in Eschede: The decision on individual attribution of a breach of duty can “Being hit solely on the basis of facts, not emotions, however understandable they may be. This particularly requires dealing with technical issues ". The question of guilt = negligence is also initially about technology - i.e. the assessment of whether the faulty product was recognizable. Because negligence first and foremost requires recognizability. But then - indisputably - valuations of justice come into play that are not always calculable.

Which employee can be punished cannot be specified in the abstract, but depends specifically on the possibilities for influencing the respective project. In the case of "climbing frame in the kindergarten" of the AG-Ahaus (AG Ahaus, judgment v. 7/9/2013 - 3 Ls-91 Js 1664 / 12-7 / 13. See the case discussion by Thomas Wilrich in BPUVZ issue 11/2013) the "simple" employee on site has also been convicted: The distances between climbing aids and the ceiling in a kindergarten were - contrary to the DIN standard - too small, so that a child got stuck and suffocated. In addition to the contractor's manager, the project manager and the local carpenter was convicted on charges of her “Also overlooked the insufficient distance and non-compliance with the DIN regulation. If they had exercised the necessary care, they would also have been able to recognize this defect, especially since the contractor's managing director pointed out the relevant DIN regulations to them several times ".

In the area of ​​criminal law, there are the following protection options, but also protection gaps:

  • There are no possibilities of limitation of liability in the purchase contract, because it is about the state criminal claim, which cannot be influenced contractually.
  • There can be no advance agreement between the designer and the employer that he will pay the fine.
  • Liability can be controlled to a small extent through - project-related - contract drafting, because the required - and also criminally relevant - security standard also depends on the "Security Expectations" (e.g. § 3 of the German and § 5 of the Austrian Product Liability Act (ProdHaftG or PHG) for civil law), which are not only to be determined objectively according to the state of the art, but also - at least to a certain extent - subjectively through agreements (e.g. a higher degree of security can be expected from more expensive products than from cheap products).
  • One cannot protect oneself against the punishment by insuring oneself.
  • One could protect oneself against the legal costs of criminal proceedings with - sometimes not cheap - (legal protection) insurance.
  • Of course, one can best protect oneself by carefully determining the relevant safety standard and thus using the "Proper attention" and des "Due diligence".
  • One could at least mitigate the penalty by making amends for the damage - by paying the injured person compensation for pain and suffering, because this is taken into account in the sentencing.

What is usually not taken into account when assessing the criminal risk are the facts accused by the prosecution itself of being responsible for the injury or even the death of one or more people. The associated self-reproaches and especially the stressful situations caused by court proceedings usually outweigh the often comparatively small fine. Jurists say: "The process is the punishment".

Caution is advised to use the relatively small fines in press reports as an opportunity to estimate the liability risk as low. A criminal conviction leads to the fact that in many cases in civil proceedings the question of guilt is "preprogrammed" - since it has already been determined by a judge in the criminal proceedings more will be published in press reports!

Connection with the Machinery Directive

As shown above, it is important to carefully determine the relevant safety standard!
Many designers are not aware that the statutory protection goals for machines and the methodology for meeting these goals during design are essentially defined in Annex I of the Machinery Directive. In Annex VII it is regulated that the technical documents, among other things "A description of the hazards identified or the protective measures taken to reduce risks" must contain.

As a rule, several people are involved in the development processes for machines or systems. As part of the daily construction activities, it is decided how certain functions are actually implemented. Design engineers determine the places where holes are drilled, which screws are used to fasten components, which ball bearings, hoses, motors or other components are used, and much more. It is obvious that design errors can occur if the safety-related features are not already taken into account at the precise point in time at which the functional aspects are determined by the designers.

Therefore, the Machinery Directive requires the integration of safety considerations into the design processes. The reason why designers have been ignoring the law that applies to them for the development of sufficiently safe machines to an alarming extent for more than twenty years is due to the current time and cost pressure - which would be counterproductive arguments in the liability dispute - and to the supposed Complexity of the legal requirement. Expressed in one sentence, the Machinery Directive only requires that those people who develop and build a machine should not only ensure that it is functional, but also that the residual risks associated with the machine are reduced to an acceptable minimum.

What is often not known: A qualitatively carried out risk assessment can reduce both engineering costs and equipment costs, starting with the first project.