Liability in the Event of a Skiing Accident

Liability in the event of a skiing accident refers to the civil and, where applicable, public law responsibility for personal injury and property damage that occurs in connection with skiing. It includes fault-based claims under the ABGB, contractual liability to the client arising from transport, instruction or rental agreements, no-fault strict liability, in particular under the EKHG for cable cars and snow groomers, and product liability under the PHG for defective equipment.

Operators of ski resorts and lift systems have far-reaching traffic safety obligations, while ski instructors and mountain guides must meet increased due diligence requirements. Contributory negligence, rules on the burden of proof and international links under Rome I and Rome II additionally govern the enforcement of claims.

Principles of Liability

In the event of a skiing accident, very different types of liability can become relevant. Depending on the specific situation, the spectrum ranges from criminal and civil liability to strict liability and product liability.

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Criminal Liability

Criminal law applies when the behavior on the slopes injures or endangers others. The decisive factor is whether someone acted intentionally or negligently. In Austria, one is criminally responsible from the age of 14.

Typical offenses are:

• Negligent bodily harm (§ 88 StGB): Anyone who injures another through carelessness or speeding is liable to prosecution.
• Negligent homicide (§§ 80 ff. StGB): If there is a fatality, the person who caused the accident bears criminal responsibility.
• Endangering physical safety (§ 89 StGB): Even reckless behavior that seriously endangers others can be punishable.

Civil Liability

Civil law is about monetary compensation for damages suffered. The basis is § 1295 ABGB: Anyone who culpably and unlawfully causes damage must compensate for it.

Compensable are, among other things:

• Healing costs and rehabilitation measures
• Loss of earnings in the event of prolonged inability to work
• Pain and suffering for pain suffered
• Care and support costs

If the victim has violated rules themselves, the claim is reduced accordingly (contributory negligence according to § 1304 ABGB).

Contracts also play a role:

• In the ski course or in rental agreements for skis, the contractual partner is liable if they breach their obligations. According to § 1298 ABGB, fault is presumed – the contractual partner must exonerate themselves.
• Ski schools or alpine schools are liable for the behavior of their teachers, as they are considered vicarious agents (§ 1313a ABGB).
• As a road maintenance manager, an operator is liable (§ 1319a ABGB) if they provide a slope or path and grossly negligently or intentionally fail to eliminate hazards.

Strict Liability (EKHG)

The Railway and Motor Vehicle Liability Act (EKHG) introduces liability without fault. The owner of a vehicle or cable car must pay for damage resulting from the typical operating hazard.

That means:

• Cable cars and lifts are legally considered railways.
• Snow groomers and snowmobiles are considered motor vehicles.

There is no escape unless the accident was caused by an unavoidable event. In practice, this exonerating evidence is rarely successful.

Product Liability (PHG)

Defective equipment or technical defects can also trigger an accident. This is where the Product Liability Act (PHG) comes into play.

Important points:

• Manufacturers and importers are liable even without fault.
• Examples: a binding that does not release, a helmet strap that tears or a defective lift part.
• All personal injury and property damage to privately used items are compensable – but with a deductible of 500 euros.
• Claims become statute-barred after three years from knowledge of the damage, but no later than ten years after it was placed on the market.

Administrative Liability

In addition to the general laws, there are special regulations in administrative law. They primarily regulate the duties of operators and ski schools.

• The Cable Car Act and associated regulations define safety and maintenance obligations.
• State laws prescribe the training and supervision of ski instructors and mountain guides.
• Sports law provisions specify the safety obligations of slope holders.

A violation of these requirements not only results in administrative penalties, but can also be a clear indication of civil fault.

Private International Law (Rome I / Rome II)

Since many guests come from abroad, it is often necessary to clarify which law applies. The EU regulations Rome I and Rome II apply here.

• Rome I: In the case of contracts, such as for a ski course or a ski pass, the law at the service provider’s registered office generally applies – usually Austrian law.
• Rome II: In the case of tort claims such as a collision, the law of the place of the accident is generally decisive. If the accident happens in Austria, Austrian law applies – even if both parties are foreigners.
• Exception: If both have the same habitual residence abroad, their home law can also be applied.

Liability between Skiers

Clear rules of conduct apply on the slopes. Anyone who disregards them and thereby causes an accident must generally be liable for the damage. The internationally recognized FIS rules, which are also used by Austrian courts as a standard for the duty of care, are decisive.

Important Principles:

• Every skier must be considerate of others and must not endanger anyone.
• Speed and driving style must be adapted to the ability, the condition of the slopes and the density of traffic.
• The driver coming from above bears particular responsibility because they have the overview.
• Overtaking is only permitted if sufficient distance remains.

Typical Accident Constellations:

• A skier drives too fast into an unclear curve and collides with a child. → Fault of the driver.
• Two snowboarders ride parallel, one abruptly changes direction and collides with the other. → Fault depending on the specific situation, possible contributory negligence of both.

If an accident occurs, the injured party must generally prove the fault of the other. If it turns out that both have violated rules, the damage will be divided proportionally (contributory negligence).

Contractual Liability

In addition to liability for misconduct, a contract can also trigger an obligation to pay compensation. Anyone who concludes a contract assumes certain protection and due diligence obligations.

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The purchase of the ski pass creates a transport contract. The operator must not only ensure transport, but also safety when getting on and off.

• If a passenger slips on an icy exit point, the operator is liable if no adequate safety measures have been taken.

Ski School and Ski Instructor

Anyone who books a ski course concludes a training contract. Ski instructors must correctly assess the ability of the group and must not overtax the participants.

• If a ski instructor leads beginners onto a black slope and there is a fall, there is a breach of the contractual obligation.

Mountain Guide and Event Organizer

Mountain guides and alpine organizers are also liable for the safe organization of a tour. This includes correctly assessing the avalanche situation, selecting a suitable route and emergency precautions.

• If a group is led on a dangerous route despite an acute avalanche warning, the organizer is liable.

Rental and Lease Agreements for Equipment

When renting skis or helmets, the lessor owes flawless and safe equipment.

• If they issue bindings that are incorrectly adjusted or have significant defects, they can be liable for injuries.

Special feature of contractual liability:
According to § 1298 ABGB, fault is presumed. This means that the contractual partner must prove that they are not at fault. For injured parties, the enforcement of claims is therefore often easier than in the case of purely tortious liability.

Liability of Operators and Slope Holders

Anyone who operates a ski area is responsible for the safety of the slopes and facilities. This results in far-reaching traffic safety obligations. The operator must eliminate or secure all hazards that a prudent skier cannot recognize or avoid themselves.

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Traffic Safety Obligations

• Regular inspection and maintenance of the slopes.
• Clear markings and difficulty information.
• Securing dangerous areas with nets or padding.

Typical and Atypical Hazards

• Typical hazards such as icy patches or trees on the edge of the slope are known to every skier and do not need to be specially secured.
• Atypical hazards such as suddenly occurring breaking edges, unprotected lift supports or cables from snow groomers must be secured or identified.

Avalanche Protection

Operators are obliged to monitor avalanche hazards in the area of open slopes and, if necessary, close them or carry out safety measures (e.g. blasting). The skier is responsible for themselves away from the marked slopes.

Lift and Slope Systems

Safety must also be guaranteed when using lifts and slope infrastructure.

• Example: Icy exit area at the chairlift → Liability of the operator.
• Example: Catch net insufficiently tensioned so that a fall is not stopped → Liability of the operator.

Outside of Operating Hours

After the lifts close or during night preparation, increased personal responsibility applies. Anyone who uses the slope despite the closure and collides with a snow groomer can hardly hold the operator liable.

Product Liability in the Event of Skiing Accidents

Not only other skiers or operators can be responsible, but also the manufacturers of equipment. If a product is defective and an accident occurs as a result, the Product Liability Act (PHG) applies.

Defective Bindings and Skis

If a binding does not release despite correct adjustment or a ski breaks during normal driving, a product defect is likely.

Protective Equipment

Helmets, protectors or ski boots must also meet the usual safety requirements. If a helmet strap tears without any particular reason, this can make the manufacturer liable.

Lift Systems and Technology

Products are not only sports equipment, but also components of lift systems. If, for example, a fuse on the chairlift fails due to a material defect, the manufacturer of the component is liable.

Limits of Product Liability

• Personal injury is always compensable.
• Property damage is only compensable for private property and is subject to a deductible of 500 euros.
• The manufacturer is only liable up to a maximum of ten years after it was placed on the market.

Strict Liability in Detail

In addition to classic fault liability, there are situations in which an injured party does not need proof of misconduct. This is where strict liability comes into play. It is based solely on the particular danger posed by certain systems or vehicles. In the area of winter sports, the Railway and Motor Vehicle Liability Act (EKHG) is central.

Application of the EKHG to Cable Cars

Cable cars and lifts are legally considered railways. If an accident occurs while using a gondola or chairlift, the operator is liable simply because the typical operating hazard has materialized.

• Example: A chair suddenly stops and a passenger is injured while getting off. → The operator is liable, even without fault.

Piste Bashers and Snowmobiles

Piste equipment and snowmobiles are also covered by the EKHG because they are considered motor vehicles.

• If a skier collides with a snow groomer, it is sufficient for liability that the accident occurred during the operation of this vehicle. Whether the driver made a mistake is not decisive.

Exonerating Circumstances of the Holder

The holder can only be released if they prove that the accident was caused by an unavoidable event. This means that the damage was unavoidable even with the greatest care. In practice, this proof is rarely successful.

• Example: A completely unforeseeable avalanche hits a gondola despite comprehensive safety measures. → An unavoidable event could exist here.

Liability of Minors and Duty of Supervision

Children and adolescents are often at the center of accidents on the slopes. However, the law treats them differently than adults.

Capacity of Children to Commit Torts

Children under the age of 14 are generally considered to have no capacity to commit torts under civil law. This means that they are not liable like adults because they lack the necessary fault.

Duty of Supervision of Parents

If a child hits another skier, it is usually not the child who is liable, but the parents or other supervisors if they have violated their duty of supervision. The younger the child, the stricter the requirements for supervision.

Equitable Liability

In exceptional cases, a child can also be liable themselves. The court then decides according to equity whether and to what extent compensation is appropriate. The yardstick is whether the child has already understood how dangerous their behavior was.

• Example: A 13-year-old rushes into a group far too quickly despite repeated warnings and seriously injures someone. → Partial liability of the child may be considered here.

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Burden of Proof, Documentation and Deadlines

Anyone who wants to enforce claims after a skiing accident must secure evidence. Without evidence, it will be difficult to prove fault and damage.

Important Evidence at the Scene of the Accident

• Photos of the scene of the accident, slope conditions and safety devices.
• Data from witnesses, slope rescue or lift personnel.
• Sketches or markings of the accident traces.

Documentation of Injuries and Costs

• Medical reports and hospital reports.
• Invoices for medical treatments, medication and rehabilitation measures.
• Proof of loss of earnings or necessary care.

Limitation Periods

Claims are limited in time.

• Civil law claims (ABGB): three years from knowledge of the damage and the liable party.
• Product liability (PHG): three years from knowledge, at most ten years from the product being placed on the market.
• Strict liability (EKHG): also three years.

Anyone who misses deadlines permanently loses their claims. Therefore, prompt action is particularly important.

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Insurance and Coverage

After a ski accident, the question of who bears the costs quickly arises. Various insurance policies may be involved, each covering different types of damage.

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Private Liability Insurance

Covers damages culpably caused to another party.

Example: A skier crashes into a group without braking; the injured parties can directly pursue claims against his liability insurance.

Operators’ Public Liability Insurance

Ski resort operators, ski schools, and rental companies generally have public liability insurance. This covers damages resulting from breaches of duty or defects in the facility.

Accident Insurance

Private or occupational accident insurance covers one’s own damages such as disability, permanent injuries, or rescue costs. It applies regardless of whether another party is liable.

Legal Expenses Insurance

Legal expenses insurance covers the costs for legal counsel and proceedings when claims arising from a ski accident need to be enforced. This is particularly crucial in complex cases involving multiple parties, as significant litigation and expert costs can arise.

In practice, the appointed lawyer usually submits the coverage request directly to the insurance company. For those affected, this means they do not have to handle the administrative process themselves and have clear cost security from the outset.

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Practical Tips for Affected Individuals

After a ski accident, it is crucial to take the right steps quickly. Those who secure evidence early and seek legal advice significantly improve their chances of successfully enforcing claims.

Immediately after the Accident:

• Notify ski patrol and ensure initial medical attention.
• Note down names and contact details of witnesses, parties involved in the accident, and lift personnel.
• Take photos of the accident scene, piste conditions, and equipment involved.

In the Days Following:

• Carefully retain medical reports, X-rays, and invoices.
• In case of injuries or prolonged incapacity to work, inform your employer and secure relevant documentation.
• Notify insurance companies promptly to adhere to deadlines.
• We will handle communication with insurance companies for you and ensure that no claims are lost.

Long-term:

• Collect all cost receipts (treatment, medication, rehabilitation, travel expenses).
• Obtain medical certificates in a timely manner for any consequential damages.
• Do not sign any settlements without legal review.
• We represent you in all negotiations and proceedings, enforce your claims, and ensure maximum compensation.

Your Benefits with Legal Assistance

A ski accident often entails complex legal and economic questions. In addition to clarifying the question of fault, insurance companies must be informed promptly, deadlines met, and damages fully quantified. At the same time, the personal burden after an accident is significant, as affected individuals should focus on healing and recovery. Without professional assistance, there is a risk that claims may be reduced or even rejected.

Legal assistance from a law firm specializing in liability law provides you with security and ensures that your interests are consistently represented from the outset.

Our law firm:

• examines whether the relevant liability provisions (ABGB, EKHG, PHG, or criminal law) are applicable in your case,
• guides you through the entire process and handles communication with all parties involved,
• ensures legally sound structuring and implementation of all necessary steps,
• assists with the calculation, enforcement or defense of claims,
• consistently safeguards your rights and interests against insurance companies, operators, and other parties involved in the accident.

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Frequently Asked Questions – FAQ

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