Swiss Cantonal Court of Schwyz Must Investigate Cause of Mosquito Infestation
- 03 Oct 2023 9:41 am CET
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The Swiss Cantonal Court must further investigate the cause and extent of an alleged mosquito infestation on a rooftop terrace. The Federal Court has accused the court of insufficiently assessing evidence in a neighborhood dispute and making an arbitrary decision. Neighbors faced each other in court, with their apartments having a rooftop terrace. On one terrace, a four-square-meter pond has been standing since 2001, which is said to cause regular swarms of mosquitoes. The complainants filed a lawsuit demanding that the pond be removed, but were unsuccessful in their attempts at the District Court of Höfe despite a private expert opinion and an inspection, and in a second instance at the Cantonal Court of Schwyz. The Federal Court partially accepted the appeal of the alleged mosquito victims, as can be seen from the judgment published on Tuesday. However, it did not address the question of whether there is actually an excessive nuisance caused by mosquitoes from the pond. This must now be examined by the cantonal court. The cantonal court accused the complainant neighbor of not sufficiently substantiating the alleged mosquito infestation. They had neither claimed to have been actually stung by the insects nor explained what was meant by "enormous swarms of mosquitoes". The Federal Court has ruled that the cantonal court has exceeded the requirements placed on the complainants in its assessment. The complainants had to demonstrate when and under what conditions the swarms would appear. If the lower court was implying that the complainants had to count each individual mosquito, this cannot be accepted. The allegedly mosquito-damaged complainants also requested a court-ordered expert opinion, a request which was denied by the cantonal court. The Schwyz court argued that an expert opinion could not determine whether the swarms of mosquitoes were actually caused by the pond or if there was another cause. The Federal Court described this argument, which anticipated the result of the expert opinion, as "arbitrary". The cantonal court did not have the necessary expertise to make this assessment. Rather, an expert opinion appears to be an objectively suitable means of proof in this case. (Judgment 5A 86/2023 of 22 August 2023).