High court on the move

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(Bild: stock.adobe.com/Ilham - stock.adobe.com)

Max (16) died in 2020 after a drug party in Innsbruck. The Supreme Court (OGH) is now dealing with a question that is highly interesting for future care.

In the form of a six-part series, the "Krone" reported on the tragic case of Max at the end of August and beginning of September 2022. His life came to an abrupt end when he was just 16 years old.

Before the night of his death, the teenager was at a drug party in Innsbruck. This took place in an apartment that was looked after by a Tyrolean youth facility. "In principle, it is clearly the task and obligation of child and youth welfare services to supervise young people - even those who are only guests like Max - accordingly. In this case, however, this did not happen," emphasized Markus Abwerzger, lawyer for Max's parents, at the time. For this reason, they filed a claim for damages. The legal department of the state of Tyrol took a completely different view.

"OLG has allowed an ordinary appeal"
Since then, the case has been the subject of court hearings. The latest act: the judgment of the Innsbruck Higher Regional Court (OLG) is now available. "Although it has confirmed the negative first-instance decision, it has allowed an ordinary appeal - that's interesting," says Abwerzger. The Innsbruck Higher Regional Court is therefore assuming that a legal issue that arose in these proceedings has not yet been decided by the Supreme Court. This could now be clarified.

The controls were inadequate and the supervision was not complete.

Anwalt Markus Abwerzger

"This is about damage to a third person"
"The case in question has far-reaching significance beyond the individual case. In principle, a breach of duty of supervision can only exist towards the person who is subject to supervision. In this case, a breach would be assumed if a young person who was in the care of Jugendwohnstart had come to harm," clarifies Abwerzger, "but here we are talking about damage to a third party - namely Max. Whether and under what conditions there is a breach of duty of supervision here and whether this is extended - including to third parties - is now the decisive legal question."

Lawyer speaks of "creating a source of danger"
According to the lawyer, the Tyrolean youth facility had created a source of danger and was therefore liable. Specifically: "It was known that drugs were being consumed in the apartment in question and allowed this to happen. The checks were inadequate and the supervision was not complete. The legal requirements may have been met by the facility, but this obviously did not do justice to the actual circumstances."

"Then care would have to be rethought"
Abwerzger gives a concrete example: "If I, as the father of a family, know with my eyes open that my child is having drug parties at home and I allow it, then the representatives of the child and youth welfare services are the first to tell me that I have to stop it. But they don't do it themselves. There is a double standard here, which is in no way comprehensible."

If the Supreme Court actually comes to the conclusion that there has been a breach of supervisory duties towards third parties in such cases, this would also be a far-reaching decision for childcare facilities throughout the country. "Because then childcare would have to be completely rethought," emphasizes Abwerzger. The decision is expected in around three months.