Cellar Hatch(HR 05- 11 - 1965 ,NJ 1966, 136 )
Mr. Sjouwerman was an employee of the Coca-Cola Company. He was making a delivery
to ‘De Munt’, an Amsterdam pub. He left the cellar hatch of the pub open whilst making his
delivery and left some crates with bottles next to the door by way of a precautionary
measure, a warning about the hole in the floor left by the open cellar hatch.
Mathieu Duchateau was a customer having a beer at ‘De Munt’. Despite the crates next to
the door, Mr. Duchateau fell through the open cellar hatch when he was on his way to the
men’s room, and he had to be taken to hospital. Mr. Duchateau claimed compensation from
the Coca-Cola Company, posing the question whether Mr. Sjouwerman had taken sufficient
precautions when he left the cellar hatch open.The Dutch Supreme Court adopted a clear principle: some circumstances can
require special precautionary measures because individuals cannot always be
expected to pay sufficient attention to their environment and circumstances.
Which factors should then be taken into account? The Court provided a number
ofaspectsto be considered:
thedegree of probabilitythat the required attention and care could be disregarded, but also
thedegree of likelihoodthat this might lead to accidents, thegravity of the consequences of
such accidentsand theburden of adequate precautions(emphasis added).
InKelderluik, the Supreme Court judged that Sjouwerman could be blamed for
not having taken into account the possible and legitimate carelessness of customers
and thus for neglecting to takesufficientprecautionary measures. As a consequence,
the Coca-Cola company was liable for damages. (In Sect.6.5, we will see why the
Coca-Cola company was liable for the damage caused by Sjouwermans.)
Cellar Hatch Factors The criteria developed by the Dutch Supreme Court in
Kelderluik led to the following general rules of thumb in connection with
endangering situations:
- The level of the precautionary measures required in endangering situations is
directly proportional to the degree in which the potential victim is likely to
neglect his care of and attention to his personal safety—the greater the likelihood
that the potential victim will neglect his personal safety in the situation, the
higher the standards of precautionary measure that are expected of the agent
causing the danger. - The higher the likelihood of an accident resulting from the endangering action,
the higher the standard of precautionary measures that are required. - If the seriousness and the extent of the possible risk are greater, a higher standard
of care should be used. - If a certain behavioral pattern is more dangerous, a higher standard of care
should be taken into account. - The endangering agent, when considering the precautionary measures to be
taken in the particular circumstances, has to take these precautionary measures
whenever they are less burdensome (in terms of time, cost, and effort) than the
magnitude of possible risk.
110 G.E. van Maanen and J. Hage