Austrian civil law regulates the so-called “innkeeper’s liability,” which primarily includes hotels and other accommodations. Innkeepers accommodate strangers and are thus liable as custodians for the things brought in by the guests, unless they can prove that the damage was not caused by the staff or by strangers entering or leaving the establishment. Items are considered “brought in” if they have been handed over to the landlord or one of his staff or if they have been brought to a designated place (e.g. a hotel safe).
The businessperson is also liable if he keeps stables and storage rooms (e.g. a ski locker), for the animals, vehicles and equipment placed with them. Owners of bathing establishments are considered equal to landlords in respect to the usual things brought in by the bathers.
However, restaurants, cafés, pubs, discotheques and nightclubs are not considered landlords in this sense. Hence the sign “Keine Haftung für Garderobe” (“No liability for wardrobe”) – although, in fact, this would not even be necessary under Austrian law.
A Serious Distinction
The responsibility of the landlord is justified in contrast to the “danger of the open house”: In a hotel or inn, it is often possible for the landlord to trace back the damage. A catering business is different. Here, a larger number of people go in and out uncontrollably, the guest does not know the enterprise and is therefore in a “proof emergency.”
The innkeeper, by contrast, runs the inn in his own name and on his own account, if not as owner, then as leaseholder. The liability of the innkeeper presupposes the accommodation of guests, at hotels, inns, guesthouses, private health resorts, retirement homes and even whorehouses. In the absence of accommodation, restaurants and coffeehouses as well as pubs, discotheques, nightclubs, etc. are not included.
The liability exists for brought in items which have been handed over to the innkeeper or one of his people. With this handing over, a so-called “safekeeping contract” takes place between the innkeeper and the guest, resulting in the liability of the innkeeper for lost, stolen or damaged things.
Restaurants or Coffeehouses
Unlike hotels, restaurants and other catering establishments do not deposit guests’ belongings. Basically, the guest may keep his coat or bag with him in the restaurant (jacket on the back of the seat, bag under the table etc.). The operator of a restaurant may not require the guest to hand in a coat or bag. If he sets up a separate checkroom (e.g. in a supper slub) and requires guests to hand over their coats, a contract of safekeeping is concluded, establishing the restaurant operator’s liability.
The following distinction is essential: If there is no obligation to check his things, with or without payment, the guest can take them with him to the table and keep them with him. In this case, no safekeeping contract is concluded. If the guest’s things are now lost, damaged or soiled, the restaurant operator is not liable, because he has not undertaken any safekeeping nor has he asked the guest to do so. The guest is, therefore, responsible for his or her own belongings. This also applies if he hangs his coat on a hook provided by the restaurant. A sign attached there by the restaurateur “Keine Haftung für Garderobe” does no harm, but is also not necessary, as the restaurant operator is not liable for freely deposited belongings.
The situation is different if there is a specially equipped checkroom, where the guest is asked to hand over his or her things – possibly for a fee. In this case, the guest does not have a choice. In this situation a contract of safekeeping is concluded and the restaurant operator is liable for lost, damaged or soiled belongings of the guest.
Injuries to the Guest
Let’s take a common example: When clearing the table, the waiter drops a pile of dishes, leaving the floor dirty and wet and the cleaning staff is not immediately available to mop it up. Getting up from the table, one of these guests slips on the floor and injures himself. The question arises whether the restaurant must take responsibility and compensate the guest.
Under Austrian law, the principle of liability for fault is anchored in the compensation for damages. According to this principle, an injuring party is liable for the culpable behavior and any damage resulting therefrom. In contractual relationships, however, the damaging party may demonstrate that he has exercised reasonable care. For any harm occurring under the implied contract between the guest and the restaurateur, the restaurant operator may present evidence that he has exercised reasonable care. For example, the restaurant might be cleaned and tidied up regularly, and any dirt or moisture on the floor would normally be removed as quickly as possible.
In the case in question, the waiter would therefore have been obliged to either clean the floor himself or to instruct the restaurant’s cleaning staff to do so after he dropped the dishes. If the floor had not been cleaned, a guest should not be allowed to sit down at the table in question, or would have had to be informed that the floor was wet and there was a danger of slipping (yellow warning sign). If the restaurant can prove that although the floor was wet and slippery it would have been cleaned as soon as possible, or that the guest has been made aware of this (yellow warning sign), or that the guest has been told not to sit at the table because it needed to be cleaned, the restaurant may be released from any liability. Otherwise it would be liable for any damage caused the guest.