Supervisor: dr iur dots. Janno Lahe
Opponents: prof. Lena Sisula-Tulokas Helsingi ülikoolist ja Dr. Egenia Dacoronia Ateena ülikoolist.
One expression of defining objective standard of care is the concept of duty to maintain safety, which is based on a legally binding obligation, in the form of a general clause that affects everyone, to conduct himself or herself in a way so as to not harm the legal rights of others, as protected by law, more than necessary and acceptable in the shared life of people. By summarising different definitions, the duty to maintain safety in tort law means the understanding that the person, who creates a danger or controls a dangerous situation and allows the danger to persist, is required to employ all reasonably necessary and appropriate measures in order to protect other persons and their rights against the realisation of danger. As regards the attempts to avoid risks the general assumptions, which apply irrespective of the specific facts of an individual case, three key criteria are especially relevant: the degree of severity of potential damage, likelihood of damage, and the resources needed to prevent or remove the risk. Although liability based on violations of the duties to maintain safety is an organic part of Estonian tort law, it is still quite vague and hidden due to scarcity of case law. It would therefore be worth considering of setting out legal provisions so as to better perceive the possibility of liability based on such a duties. Bunching together general citeria that compose the objective standard of conduct would help to provide such a ground and relevant regulation contained in Articles 4:102 and 4:103 of the PETL may serve as an example. In addition to the clarification of an objective standard of conduct, the current legal provisions constructing the bases of liability based on the general composition of delict should also be specified from the same perspective. Unlike the methodological teaching modelled in the BGB, in solving cases based on violation of the duty to maintain safety by Estonian law, a presumption of the violation the duty must be applied to keep in accordance with the general rule provided in §1050 (1) of the LOA. The main advantages of this approach are that the burden of proving a negative fact is removed from the injured party and the burden is placed on the party to the procedure in whose internal sphere the facts needing proof are found; simplicity of the court procedure; more reliable evidence; and preventive impact on the violation of the duties to maintain safety.