On the right of recourse of a fire insurer against a chimney sweep and his journeyman after a fire in a detached house due to improper removal of soot.
The defendants are ordered as joint and several debtors to pay the plaintiff EUR 96,792.69 plus interest in the amount of 5 percentage points above the respective base interest rate since September 17, 2002.
Orders the defendants to pay the costs.
The judgment is provisionally enforceable against provision of security amounting to 120% of the amount to be enforced in each case.
Facts:
The plaintiff is claiming damages from the defendants for fire damage to I2 in N2 on the basis of subrogated rights.
The plaintiff is the fire insurer of the property, which is owned by the policyholder Marlene U. The defendant 1) is the responsible district chimney sweep, the defendant 2) his journeyman, who swept the L2 of the house on December 20, 2001. The house had a solid fuel stove, which was fired with normal or egg briquettes. The inspection opening of the chimney connected to it was covered with a metal plate. Another panel that was originally behind the metal cover had been missing for years.
The soot present on the C of the chimney after the sweeping on December 20, 2001 was not removed by the defendant (2) himself. Instead, the plaintiff’s policyholder offered to clean the L2. The defendant 2) agreed to this. On December 27, 2001, a C2 emerged from an adjoining room in the kitchen of the house, which was used as a storage room. Flames developed behind a travel cot placed there in front of the inspection opening of the fireplace and spread to the upper floor via the staircase, which formed the rear and upper partition of the adjoining room. As the fire progressed, the detached house burned out almost completely. Immediately after the C2, the investigating criminal investigation department found white-grey soot on the C of the chimney, which was 10 to 13 cm high. This corresponds to about 2.6 liters of soot. During an examination of the chimney through the inspection opening on 29.12.2001, the expert L also found larger N of fine-grained soot.
The applicant submits:
The cause of the C2 was the ignition of soot on the C of the chimney. The source of ignition could only have been the inspection opening. In particular due to the color of the soot found after the C2, it was clear that this was reburned soot, i.e. soot that was present before the C2 and was ignited and reburned in connection with it. After the sweeping of the chimney on 20.12.2001, however, there should have been practically no soot left on its C. Consequently, the soot had not been properly and professionally removed from the L2 after the sweeping. Otherwise, there could not have been soot on the C of the chimney again on 27.12.2001 in the quantity determined after the C2. The soot had not been removed or had not been removed to the extent necessary. On the day of the damage, the soot that had not been removed was ignited at the bottom of the fireplace by smoldering soot particles escaping from the stove in the living room, e.g. during filling or stoking. In this respect, the defendants could not successfully claim that they had made an agreement with the plaintiff’s policyholder to the effect that the latter would remove the soot that had been swept away. Such a transfer of the task incumbent on the district chimney sweep was not possible. The metal plate of the inspection opening on L2 was also perforated due to corrosion. The defendants should have informed the plaintiff’s policyholder of this and of the missing additional plate. After the outbreak of the fire at the base of the chimney, the inspection hatch heated up very strongly and transferred the heat to the travel cot placed in front of it, which would not have been the case if there had been two metal hatches. In addition, no fireplace inspection had been carried out by the defendant 1) for more than five years before the fire. If the defendants had complied with their obligations, the C2 would not have broken out. The defendants were therefore liable to pay compensation for the damage caused by their failure to do so. Compensation in the amount of 83,559.38 euros, clean-up and demolition costs in the amount of 4,638.21 euros, loss of rent in the amount of 3,770.00 euros, mitigation costs in the amount of 3,344.41 euros and expert costs totaling 1,480.69 euros are to be paid. For details, please refer to the damage assessment by Dipl.-Ing. T (p. 80 et seq. of the file).
The applicant claims as recognized.
The defendants request that the action be dismissed.
You present:
The C2 had been caused by the fact that hot smoke had escaped downwards through the inspection flap due to the inversion weather conditions instead of following the chimney thermal upwards. Before the C2 or at the time the fire broke out, there was no soot on the chimney floor. The homeowner U had – in accordance with the agreement with the defendant 2) – herself removed the soot produced by sweeping the chimney with a shovel. Why approx. 2 liters of soot had been found at the C of the chimney during the fire site inspection was unclear. In any case, the defendants were not liable for any failure to remove the soot properly. This was because the defendant 2) had effectively transferred the obligation to remove the soot to the homeowner U, which was in principle incumbent on the defendants, which was also permissible. The removal of the soot was an insignificant part of the chimney sweep’s work, which could also be carried out by persons outside the profession. For many years, the defendants had already had the soot removed by the house owner U or her husband as agreed, who had always fulfilled this duty reliably and properly. The metal plate in front of the inspection opening of the chimney had only corroded due to the high heat of the C2 and the use of extinguishing water. Neither its condition nor the absence of the second metal plate were the cause of the ignition of the guest bed and the resulting damage. The homeowner U was ultimately solely at fault for the damage because she should not have placed the guest bed directly in front of the inspection opening. Defendant 2) had also pointed out to her that the inspection hatch should not have been blocked with objects. Moreover, the fireplace inspection had been carried out regularly, the last time in 1997.
For further details of the facts of the case and the dispute, reference is made to the written submissions exchanged between the parties and the annexes.
The court took evidence in accordance with the order to take evidence of April 2, 2004 (p. 185 of the file). Please refer to the minutes of the hearing of 23.06.2004 (p. 193 of the file) for the result of the taking of evidence.
Reasons for the decision:
The action is well-founded.
The plaintiff has a claim for damages against the defendant 1) in the amount awarded for positive breach of contract of the sweeping contract concluded between the defendant 1) and the homeowner U in conjunction with § 67 I 1 VVG. This is because the defendant 2) breached the duties of a district chimney sweep arising from this contract with regard to § 8 III of the sweeping and inspection regulations (KÜO) NW. This breach of duty must be attributed to the defendant 1) in accordance with § 278 BGB and § 15 I 2 Schornsteinfegergesetz (SchfG).
The legal relationship between the master chimney sweep and the homeowner is subject to the rules of private law, whereby a contract for work and services within the meaning of Sections 631 et seq. BGB is to be assumed. The district master chimney sweep acts under private law within the scope of the sweeping work (OLG I NJW 1972, 2088 ff.). The content and scope of the duties to be observed during the sweeping work result from §§ 12 ff. SchfG and the provisions of the KÜO. § Section 8 III KÜO stipulates that incineration residues from installations subject to mandatory sweeping must be removed by the district chimney sweep and stored in such a way that no fire hazard arises. The defendant 2) violated this removal obligation with regard to the L2 of the I-Weg in N2.
According to the results of the taking of evidence, the Chamber is convinced that the C2 fire on December 27, 2001 was caused by soot on the C of the chimney reigniting. This was established beyond doubt by the examination of witness L, an expert witness on the causes of fire, in conjunction with the undisputed facts, which were confirmed once again by witnesses C3 and Hippler.
It is undisputed that after the C2, approx. 2.6 liters of white-grey, fine-grained soot were found at the C of the chimney from which the C2 originated. According to the statements of witness L, which are comprehensible in this respect, it can be assumed on the basis of the color of the soot that this was reburned soot. The color of simple soot should have been black. Furthermore, the fine-grained nature of the soot found also suggests that it was reburned. Witness L was unable to detect any lumps in the soot, such as pieces of wood, which could have fallen from the roof structure during the extinguishing work, for example. When the witness inspected the scene of the fire, the soot he examined was still smoldering.
Based on the amount of soot found by the police in the L2 immediately after the C2, it can also be assumed, with the statements of the expert witness, that it must have been soot that had been swept off. According to the witness – which is also undisputed – an L2 of the size in question here produces around three liters of soot during half a year of operation and up to five liters during particularly cold winters. However, since more than two liters of reburned soot were found in the L2 that caused the fire here, there must have been a correspondingly larger quantity of soot swept away in front of the C2. Accordingly, the witness L concluded comprehensibly that in the course of the sweeping on December 20, 2001, no soot, at most a small amount, was removed from the L2. The amount of soot that was found on the C of the chimney after the C2 could not have been produced within a week. In this respect, the witness was also able to rule out the possibility that soot could only have fallen during the fire. Nor had there been a chimney fire. On the contrary, the L2 had looked swept clean overall.
According to the result of the taking of evidence, it is therefore clear that the cause of the C2 on 27.12.2001 was the ignition of soot on the C of the chimney.
At the same time, it follows from this that the sweeping on 20.12.2001 was not carried out properly because, contrary to § 8 III KÜO, the combustion residues remaining in the L2 after the sweeping were not removed to the required extent.
Nothing to the contrary emerges from the defendants’ submissions. Insofar as they claim that the homeowner U – in accordance with the agreement with the defendant 2) – herself removed the soot produced by sweeping the chimney with a shovel, their submission must already be assessed as unsubstantiated, since they do not explain exactly how much soot the homeowner claims to have removed. However, this would have been to be expected in view of the specific quantities stated by the plaintiff regarding the soot found and usually produced. The questioning of witness U would therefore amount to an inadmissible investigation of facts. In addition, it appears questionable whether the witness could have stated that she actually carried out the removal of the swept soot properly, as the cleaning of a plant subject to mandatory sweeping requires special expertise and specialist knowledge, as can be seen in particular from § 7 KÜO. Whether the witness could have made the decision that the plant should have been cleaned with special cleaning methods or by burning out, because the combustion residues could possibly not have been removed with the usual sweeping tools, seems at least doubtful. In any case, the defendants do not explain how the undisputed amount of soot found after the C2 should have entered the L2, if the witness U completely and properly removed the swept soot from the L2 during the sweeping on December 20, 2001. The defendants do not provide an explanation for this. Consequently, in accordance with the statements of the expert witness L, it can only be assumed that the removal of the soot swept away by the defendant 2) on December 20, 2001 was not carried out properly. The defendant 1) is liable for this.
Defendant 2) is to be accused of a breach of duty with regard to the improper removal of the soot, for which defendant 1) is responsible. In this respect, he cannot successfully argue that the fulfillment of the obligation incumbent upon him pursuant to § 8 III KÜO was effectively transferred to the homeowner U by the defendant 2) with the consequence that he was released from liability for the failure to clean or insufficient cleaning of the chimney. In any case, such a transfer would not have exempted the defendant 1) from liability.
This follows from the regulatory content of the provisions of the SchfG and the KÜO. According to § 1 I SchfG, the owners of properties and rooms are already obliged to clean and inspect the systems subject to sweeping and inspection in a timely manner. In contrast, the district master chimney sweep is responsible for carrying out the work prescribed by the KÜO in accordance with § 13 I No. 1 SchfG. In order to fulfill the tasks assigned to him, he must employ a journeyman in accordance with § 15 I 1 SchfG. According to § 15 I 2 SchfG, however, he remains responsible for the proper execution of the sweeping work. § Section 15 I 2 SchfG is intended to ensure that the master district chimney sweep always supervises at least the work of a journeyman, despite the presence of a journeyman. Nothing else can apply if he uses the assistance of a homeowner to fulfill the tasks incumbent upon him. Even then, the responsibility of the district master chimney sweep remains (even more so), who is subject to the competent supervisory authority in accordance with §§ 26 ff SchfG. The latter can require him to fulfill the duties and tasks incumbent upon him by means of supervisory measures, § 27 SchfG. Accordingly, the defendant 1) should at least have ensured that the cleaning activities of the property owner U were monitored. The fact that § 7 KÜO only subjects special cleaning procedures to personal execution or permanent supervision by the district master chimney sweep does not contradict this. The provision does not state that other cleaning work can be transferred to third parties without the district master chimney sweep being released from the duty of supervision derived from § 15 I 2 SchfG.
According to § 9 I KÜO, homeowners are only responsible for ensuring free access to cleaning and inspection openings T2; § 9 II KÜO stipulates that they must provide non-combustible, leak-proof containers for collecting the soot produced when sweeping the flue gas systems. Contrary to the view of the defendant, it does not follow from this that the homeowners can also clean the chimney themselves without further ado. Rather, as already mentioned above, this requires special expertise and specialist knowledge (cf. only § 7 KÜO). The fact that § 8 KÜO is entitled “other duties” of the district master chimney sweep also does not mean that these duties can be transferred to the respective homeowner as a layperson without further ado. The duties standardized in § 8 KÜO are precisely those of the district master chimney sweep, even if they are in addition to the duties regulated in §§ 2 ff. KÜO, they may also be referred to as “other” duties. The fact that the removal of soot from a swept L2 is not merely an insignificant partial activity of the chimney sweep, which can also be carried out by persons outside the profession, is shown by the present case. The improper removal of soot poses a not inconsiderable risk of fire, which may be underestimated by laypersons. If the master district chimney sweep nevertheless assigns this work to a layperson, he remains responsible for it due to his superior expertise and
specialist knowledge and bears the associated risk.
Accordingly, the homeowner U could not effectively waive the liability of the defendant 1). There is a considerable public interest in fire safety, including in the context of chimney cleaning and the associated disposal of combustion residues. In the interest of public fire safety, the essential tasks in the context of chimney cleaning are assigned exclusively to the district master chimney sweep. The performance of these tasks by him serves the public interest in fire safety. This legal interest is – as the plaintiff rightly points out – not disposable.
Defendant 1) is therefore liable for the damage caused by the C2 of December 27, 2001. The amount of the damage is clear from the damage assessment by Dipl.-Ing. T submitted by the plaintiff (p. 80 et seq. of the file). After the defendants disputed the amount of the damage because the condition and age of the house before the fire was not proven, the plaintiff stated that the insured property was built in 1924. They also explained when which renovation measures had been carried out (p. 149 of the annex); the condition of the building before the damage occurred corresponded to a normal state of preservation, taking into account the age of the building and the renovation work carried out.
The defendants have not countered this with anything substantiated. Their blanket denial of the amount of damage is therefore irrelevant.
In the present case, the plaintiff is also not to be charged with contributory negligence on the part of the homeowner U pursuant to Section 254 I BGB because she had placed a travel cot directly in front of the inspection opening of the fireplace. According to the defendant’s own submission, the metal cover in front of the inspection opening did not constitute a defect and had not been objected to by the homeowner. It was therefore entitled to assume without further ado that the cover was not a fire hazard. When and under what circumstances the defendant 2) should have pointed out to her that the inspection hatch should not have been covered with objects, however, cannot be inferred from the defendant’s submission. It is therefore also to be assessed as unsubstantiated in this respect and therefore irrelevant. In addition, the defendant 2) would have noticed the travel cot and pointed out the increased risk of fire, at least if he had cleaned the fireplace properly himself. It could then be assumed that the homeowner acted in accordance with the advice given by putting the bed to one side. The fact that she relied on the harmlessness of the bed placed in front of the inspection opening in the present case cannot therefore be to the detriment of the plaintiff. In any case, any contributory negligence on the part of the homeowner would be secondary to the overwhelming fault of the defendant 2), for which the defendant 1) is responsible.
Defendant 1) is therefore obliged to compensate the plaintiff for the fire damage in the total amount of EUR 96,792.69.
Based on the above considerations, the defendant 2) is also liable for the damage incurred. The plaintiff’s claim against him arises from § 823 II BGB in conjunction with § 8 III KÜO, § 67 I 1 VVG. He has violated his direct duty to remove the soot after sweeping the chimney and has thus violated a protective law within the meaning of § 823 II BGB. The above statements on the non-transferability of the duty incumbent on him to the homeowner
and on the scope of liability apply accordingly here.
The plaintiff’s claim to interest arises from § 288 I 1 BGB (old version) in conjunction with § 67 I 1 VVG.
The decision on costs is based on Section 91 I 1, 1st half of the ZPO. The decision on provisional enforceability follows from section 709 sentence 1, 2 ZPO.
Value in dispute: 96,792.69 euros
(Kleve Regional Court, judgment of July 16, 2006, Ref. 1 O 431/03)