Literature
Bergamni, Patrik, Haftung des Bergbahnunternehmens bei Sommersport-Unfällen im Einzugsgebiet der Bahn, Diss. St. Gallen 2000; Brehm, Roland, Berner Kommentar zum Schweizerischen Privatrecht, Das Obligationenrecht, Allgemeine Bestimmungen, Die Entstehung durch unerlaubte Handlungen, Kommentar zu Art. 41-61 OR, 2nd ed, Bern 1998; Bühler, Sophie, Radsport, in: Schneuwly, Anne Mirjam/Strub, Yael Nadja/Koller Trunz, Mirjam (eds.), Sportverbandskommentar; Bütler, Michael, Zur Haftung von Werkigentümern und Tierhaltern bei Unfällen auf Wanderwegen, Sicherheit & Recht 2/2009, p. 106 ff. Cavegn, Remo, Zur Haftung bei Unfällen auf Mountainbikerouten, in: Fachstelle für Langsamverkehr Graubünden (ed.), Handbuch graubündenBIKE, Chur 2011, p. 1 ff.; Ehrenzeller, Kaspar, Fahrradfahren auf Wanderwegen, AJP 2023, p. 958 ff.; Gaulrapp H./Weber A./Rosemeyer B., Injuries in mountain biking, Knee Surg, Sports Traumatol, Arthrosc 9/2001, p. 48 ff.; Lustenberger, Erik, Die Eigenverantwortung im Alpinismus, in: Klett, Barbara (ed.), Haftung am Berg, Olten 2013, p. 115 ff; Müller, Rahel, Haftungsfragen am Berg, Diss. Bern 2016 (cited Diss.); dieselbe, Bergsportrecht: Einführung und Grundlagen, in: Schneuwly, Anne Mirjam/Müller, Rahel (eds.), Bergsportkommentar (cited Bergsportkommentar); Niggli, Alexander Marcel/Probst, Thomas/Waldmann, Bernhard (eds.), Basler Kommentar zum Strassenverkehrsgesetz, Basel 2014 (cited BSK SVG-Bearbeiter*in); Widmer Lüchinger, Corinne/Oser, David (eds.), Basler Kommentar zum Obligationenrecht I, 7th ed, Zurich 2020 (cited BSK OR I-Bearbeiter*in); Toneatti, Michael, Wettkampf in den Bergen, in: Schneuwly, Anne Mirjam/Müller, Rahel (eds.), Bergsportkommentar; Zollinger, Marco, Zugang zu den Bergen, in: Schneuwly, Anne Mirjam/Müller, Rahel (eds.), Bergsportkommentar.
Materials
Message on the Bicycle Path Act of May 19, 2021, BBI 2021 p. 1260 ff.; Biking in the forest, work aid 8.2/1, Office for Forests of the Canton of Bern (cited KAWA, work aid Biking in the forest); technical documentation "Mountain bike facilities" of the Swiss Council for Accident Prevention (bfu), 2019 edition (cited bfu Mountain bike facilities); Department of Economic Affairs/Cantonal Forestry Office Schwyz, Liability in the event of accidents on hiking trails - principles, 2008 (Liability in the event of accidents on hiking trails - principles).
I. General (public law)
A. Introduction
Cycling is a versatile sport that can be practiced in a wide variety of ways and can be described as a classic popular sport(Bühler, para. 1 ff.). Cycling distinguishes between cycling on paved roads (often simply called cycling) and mountain biking on unpaved roads.
In the area of mountain biking, the following three types of practice can be distinguished: Mountain bike routes, flow trails and downhill trails and dirt and pump tracks. Mountain bike routes include mountain bike tours, single trails and freeriding. This is the most common type of mountain biking practiced throughout Switzerland. The other types of practice are specialized areas. They generally require specific equipment for the athletes or artificial installations and are usually supervised by operators. Flow trails and downhill trails often use lifts or cable cars for the ascent and usually have additional structures and predefined routes with special jumps, curves and transitions. Such trails can be found both in the mountains and - mainly - in the forest. The so-called dirt and pump tracks, on the other hand, are located in purpose-built facilities and parks(KAWA, Arbeitshilfe Biken im Wald, p. 4).
The following commentary deals with the sport of mountain biking and is limited to practicing on mountain bike routes and, in some cases, on flow and downhill trails. In addition, this commentary is limited to private practice and in particular does not include the commercial organization of guided mountain bike tours or races, or the use of bike parks.
B. Terms
1st mountain bike
Mountain bikes are legally covered by the definition of bicycles (Art. 24 VTS). All provisions relating to bicycles and their use are therefore equally applicable to mountain bikes (BSK SVG-Rindlisbacher, Art. 43 N 16).
However, mountain bikes differ from everyday bicycles both in terms of their appearance and their intended use. Mountain bikes are particularly suitable for off-road use due to their chunky tires, typically smaller frame and reinforced suspension(Swiss Cycling). This leads to a need for a differentiated understanding of the term "bicycle" and "mountain bike".
2nd way
There is no legal definition of the term "road" in the law. It can be assumed that the term "road" refers to public roads in accordance with Art. 1 Para. 1 SVG (Road Traffic Act). The provisions of the SVG therefore apply to the demarcation of paths (BSK SVG- Rindlisbacher, Art. 43 N 4; in particular for the demarcation of bike routes and hiking trails, see para. 50 ff. below).
Cycle paths are regulated in the new Cycle Path Act. In particular, mountain bike routes are regarded as cycle paths for recreational use (Art. 4 Para. 2 of the Cycle Path Act).
C. Applicable law
Various laws and standards under public law must be observed in the area of mountain biking. In particular, the Cycle Path Act (Cycle Path Act; SR 705), the Road Traffic Act (SVG; SR 741.01), the Signalization Ordinance (SSV; SR 741.21), the Forest Act (WaG; SR 921.0) and the Federal Act on Footpaths and Hiking Trails (FWG; SR 704) are authoritative.
Anyone using a mountain bike affects a large number of legal areas. A major difficulty with regard to the use of paths (see para. 51 ff.) is that the legal regulation is carried out at cantonal level or the cantons are obliged by the federal government to implement it at cantonal level. As a result, the use of trails in forests and in the mountains in particular is regulated very differently from canton to canton. As a result, it is practically impossible for individual mountain bikers to know which regulations apply at any given time. In the following, the focus is placed on federal legal norms and only in Chapter V. is occasional reference made to cantonal regulations.
1st Cycle Route Act
The new Cycle Route Act came into force on January 1, 2023. Among other things, this law stipulates that the cantons must ensure that cycle paths in Switzerland are interconnected (Art. 6 lit. a Cycle Path Act). If it is necessary and appropriate for traffic safety, cycle paths must be built separately from motorized traffic and pedestrian traffic. The cycle paths must have a homogeneous construction standard and the cycle path network for recreational use must have a high recreational quality (Art. 4 para. 1 and Art. 6 lit. c-d Cycle Path Act). Mountain bike routes in particular are explicitly mentioned as recreational cycle paths (Art. 4 para. 2 Cycle Path Act; BBI 2021 1260 ff, p. 16). The competent authority, in this case the canton, is responsible for the maintenance and legal safeguarding of public use (Art. 8 Cycle Path Act). Installation and maintenance include both operational and structural maintenance as well as signaling (BBI 2021 1260 ff., p. 20). For implementation, in particular for the creation of plans in accordance with Art. 5 para. 1 Cycle Route Act, a period of five years applies (Art. 19 Cycle Path Act).
2. federal law on footpaths and hiking trails(FWG)
Analogous to the Bicycle Path Act, the Federal Act on Footpaths and Hiking Trails stipulates the obligation of the cantons to draw up a plan of the footpath and hiking trail network and to review and maintain it (Art. 4 and Art. 6 FWG). In particular, cantons must ensure that footpaths and hiking trails are as safe as possible to walk on (Art. 6 para. 1 lit. b FWG). This provision is important with regard to the shared use of hiking trails by hikers and mountain bikers.
3. signalization ordinance (SSV) (Art. 54a)
The relevant standard for mountain bikers in the Signalization Ordinance is Art. 54a. This article reads as follows:
"Art. 54a Signposts for bicycles and vehicle-like equipment
1 Signposts with white lettering on a red background are used for bicycles, mountain bikes and vehicle-like equipment.
2 (...)
3 The signpost "Route for mountain bikes"(4.50.3) indicates routes that are particularly suitable for mountain bikes and obliges their users to show special consideration for pedestrians; where safety requires it, they must give warning signals and stop if necessary.
(...)."
Example of signage:
4.50.3 Signpost "Route for mountain bikes" (example) (Art. 54a)
4 Forest Act (WaG)
Section 3 of the Forest Act (Art. 14 and 15 WaG) regulates access to and use of the forest. In principle, everyone has free access to the forest. The cantons must ensure that the forest is accessible to the general public (Art. 14 para. 1 WaG). The accessibility of the forest can and must be restricted by the canton if this is necessary for the conservation of the forest or due to other public interests (Art. 14 para. 2 lit. a WaG). The cantonal forest laws and forest ordinances are therefore decisive in the individual areas.
In contrast to motor vehicles, mountain bikes are therefore generally permitted in the forest, subject to the above-mentioned restrictions.
5 Road Traffic Act (SVG)
All types of bicycles are means of transportation that participate in road traffic. The Road Traffic Act regulates traffic on public roads in accordance with Art. 1 Para. 1 regulates traffic on public roads. Para. 2 also states that all traffic regulations (Art. 26-57a SVG) apply to bicycles. Bicycles and, accordingly, mountain bikes are therefore explicitly covered by the scope of the SVG.
For mountain bikes in particular, Art. 43 Para. 1 SVG is a key standard. This states: "Paths that are not suitable for traffic with motor vehicles or bicycles or are obviously not intended for this purpose, such as footpaths and hiking trails, may not be used with such vehicles" (for details on the demarcation, see margin no. 50 ff.).
However, the liability of cyclists is governed by the reference provision of Art. 70 SVG, the liability of cyclists is not governed by the Road Traffic Act, but by the Swiss Code of Obligations (see para. 39 f.).
II Private law
Mountain bike accidents can have various causes. Most accidents occur on descents and are usually caused by mountain bikers misjudging the terrain or overestimating their speed. In addition, accidents regularly occur in connection with exhaustion or fatigue as well as collisions with animals or other riders(Gaulrapp/Weber/Rosemeyer, p. 48 ff.).
As a result, various bases of liability under private law come into consideration in mountain biking.
A. The personal responsibility of athletes
When mountain biking, athletes are exposed to an increased risk of accidents and injuries due to uneven surfaces, steep routes and the resulting high speed. This risk is greater than with everyday cycling on cycle paths and roads due to the factors mentioned above. Mountain bikers are fundamentally responsible for their own actions and can only hold a third party liable in the event of an accident in special cases.
Damage can only be attributed to a third party if it is unlawful or in breach of contract. The damage must be in a so-called adequate causal connection with an action of the third party - the liable person - and requires fault on their part. There is therefore a so-called delimitation of risk spheres between mountain bikers and possible third parties(Cavegn, para. 18; Müller, Diss., para. 31).
In the mountains, the principle is that everyone is responsible for themselves. Personal responsibility is therefore of great importance in all mountain sports(Lustenberger, p. 116; Müller, Diss., para. 31). In the context of personal responsibility, mountain bikers in particular also bear the risk of natural hazards and the usual conditions that can be found in the mountains on hiking trails and in nature in general. The usual conditions include, in particular, unevenness of the trail or places that require special attention to pass through, as well as changes in the ground due to weather conditions. No one is obliged to remove typical terrain difficulties that are recognizable to mountain bikers and which they can master with due care (e.g. holes, hollows, individual rocks, roots, etc.; see Liability in the event of accidents on hiking trails - principles, p. 4; Cavegn, para. 20).
Mountain bikers are expected to adapt the routes to their abilities and physical condition and to be prepared and equipped accordingly. They must exercise due care and common sense and concentrate on this throughout the entire ride(Cavegn, para. 21). You are also expected to carry a first-aid kit and bicycle tools(Bergamin, p. 17).
Personal responsibility has its limits, especially when it comes to the so-called danger rate. Mountain bikers are not responsible for atypical obstacles or dangers. A dangerous condition caused by atypical obstacles or dangers is when these cannot be recognized or cannot be recognized in time even with due attention. This refers to obstacles and dangers that are not foreseeable according to general life experience and the usual course of events and therefore do not conform to the route. Mountain bikers must either be protected from such obstacles or dangers or at least warned in good time (Liability for accidents on hiking trails - principles, p. 4; see BSK OR I-Kessler, Art. 58 N 15). Anyone who creates or maintains a correspondingly dangerous condition must take all necessary and reasonable protective measures to prevent injury to mountain bikers and third parties (BK OR-Brehm, Art. 41 N 201). If this is not done, responsible third parties are liable - from the set of risks - for the damage caused to mountain bikers.
B. Liability from contract
Contractual liability is governed by Art. 97 OR. However, this does not apply to the private practice of mountain biking, but to commercial practice in the form of guided mountain bike tours, the organization of races and the use of bike parks, etc. For liability in the case of competitions in the mountains, see the article by Toneatti.
C. Liability of the owner of the work
1. character of the work
In Art. 58 CO stipulates the liability of the owner of the work - as strict causal liability.
A hiking and mountain bike trail is considered a work of art if it is artificially paved or equipped with facilities such as bridges or jumps. Consequently, a significant change in the terrain is required for a trail to have the character of a work(Lustenberger, p. 123). In principle, a path is artificially paved or created by substantial excavation, blasting or filling(Müller, Diss., para. 77).
A path that has been deliberately prepared as a mountain bike route can certainly be regarded as a work within the meaning of CO 58 (Liability for accidents on hiking trails - principles, p. 12).
2. general liability (private individuals)
Owners of works are liable for damages arising from a defect in the work (Art. 58 para. 1 OR). Such a defect in the work exists if the work does not offer sufficient safety when used as intended (BSK OR I-Kessler, Art. 58 N 13; with further reference: BGE 130 III 736, 741 f.; 130 III 193, 196). It is a prerequisite that the accident is due to defective construction or defective maintenance and that it would have been reasonable to remedy the defect(Müller, Diss. para. 79 f.). Defects that arise directly from the nature of the work and its normal use are to be prevented (Müller, Diss. para. 81).
The purpose and destination of the work must be taken into account. Therefore, the designation of the trail - as a hiking trail or mountain bike trail - and its actual use are decisive. Classification as a hiking or mountain bike trail is generally based on good conditions and use in daylight. Use in poor conditions is entirely the responsibility of the mountain biker(Müller, Diss., para. 82ff.).
However, the owner of the work only has a duty to ensure safety if and to the extent that this is proportionate and reasonable(Müller, Diss., para. 86). Accordingly, the above-mentioned personal responsibility of mountain bikers constitutes a limit to the work owner's duty to ensure safety(Lustenberger, p. 120; see BSK OR I-Kessler, Art. 58 N 16, with further references: BGer, 15. 1. 2015, 4A_286/2014, E. 5.2). Another barrier to the duty to provide security is reasonableness(Lustenberger, p. 120). Reasonableness - the question of what can reasonably be demanded in an individual case - requires a weighing up of the opposing interests. The effectiveness of the measure, including its costs and disadvantages, as well as the probability of the risk and the extent of the expected damage are taken into account (BSK OR I-Kessler, Art. 58 N 15a, with further references: BGE 126 III 113, 116).
The owner of the work cannot reasonably be expected to incur expenses that are disproportionate to the purpose of the work - in this case the hiking and mountain bike trail (BGE 130 III 736 E. 1.3., 742). In addition, the owner of the work can expect reasonable users and only has to deal with normal risks corresponding to general life experience.
3. liability of the community
As stated in the laws mentioned at the beginning - the Bicycle Path Act, the Federal Act on Footpaths and Hiking Trails, the Forest Act and the Road Traffic Act - the maintenance of the road and path network is basically a sovereign task of the community - in this case the canton - and is part of the administrative assets in the broader sense (BK OR-Brehm, Art. 58 N 164, with further reference: BGE 70 II 85/87 f.). The relevant legal texts are public law. Nevertheless, the case law is based on the liability of owners under civil law. Damage that was not directly caused by the exercise of a sovereign power must therefore be considered to have arisen as a result of the performance of an act under private law. The private law causal liability provision of Art. 58 CO is therefore also applicable to the community (BK OR-Brehm, Art. 58 N 165; regarding the right of access and the basic use of public property, such as forests, pastures and mountains, reference is made to Zollinger, para. 4 et seq.)
The municipality is liable on the basis of ownership of works in accordance with Art. 58 CO if facilities belonging to administrative assets or in public use are defective and third parties suffer damage as a result. This is confirmed by the constant case law of the Federal Supreme Court(Bütler, p. 113, with further references: BGE 115 II 237 ff., E. 2b; BK OR- Brehm, Art. 58 N 161 ff.). According to the case law of the Federal Supreme Court, the liability requirements are not very strict for road defects and even less so for defects on hiking and mountain bike trails. The reason for this is the intended purpose and, in particular, reasonableness, which is governed by public law(Bütler, p. 113).
D. Liability for fault
1. liability arising from the maintenance of a mountain bike route
In addition to liability arising from ownership of the work within the meaning of Art. 58 CO, the liability of the person responsible for maintaining the path (who is not also the owner) is also relevant. In this constellation, tortious liability pursuant to Art. 41 OR. In contrast to Art. 58 OR, this is not a causal liability, but a fault-based liability.
The relevant principle is the principle of risk, which has already been mentioned several times, according to which the person who creates or maintains a condition that could cause damage to another and which he would be obliged to avoid is liable for damage (see Lustenberger, p. 118). If there is a duty to maintain a trail offered as a mountain bike route and this duty is not fulfilled or is only fulfilled inadequately, then there is objective fault within the meaning of the law of risk. In the event of an accident on such a route, fault-based liability pursuant to Art. 41 OR(Bergamin, p. 150). Road maintenance includes both ongoing maintenance and periodic maintenance(Bütler, p. 114). If third parties - auxiliary persons - are called in to carry out maintenance work, the person responsible for maintenance is liable under Art. 55 OR for misconduct and damage caused by the auxiliary persons(Bergamin, p. 150).
So-called traffic safety obligations are to be regarded as a concretization of the set of risks(Bütler, p. 112). The degree of care on which the injured party could and should have relied under the given circumstances is decisive for liability according to the standard of danger. Ultimately, therefore, the principle of danger is about the protection of justified trust in standard behavior(Lustenberger, p. 119).
2. liability of mountain bikers
Art. 70 SVG states: "Cyclists are liable in accordance with the Code of Obligations". This norm is a reference norm from the SVG to the OR. By definition, a bicycle is not a motor vehicle. The strict liability according to Art. 58 SVG does not apply to damage resulting from the misconduct of cyclists (BSK SVG-Landolt, Art. 70 N 1).
Injured parties can assert a liability claim against cyclists on the basis of the applicability of the Swiss Code of Obligations under the conditions of fault-based liability in accordance with Art. 41 OR(BSK SVG-Landolt, Art. 70 N 4).
If mountain bikers cause damage to a third party while practicing the sport - be it personal injury due to injury to the person themselves or damage to property due to injury to structures on the route or to animals - the four requirements of Art. 41 OR - tort, damage, causality, fault (intentional or negligent).
III Criminal law
In addition to responsibility under private law, the criminal law component also plays a central role in mountain and sports accidents. In this context, negligent bodily injury (Art. 125 StGB) and negligent homicide (Art. 119 StGB).
Negligent bodily injury and involuntary manslaughter play a particularly important role in related areas such as mountain sports accidents, falls, skiing accidents, etc. Such criminal proceedings are rare for mountain bike accidents(Cavegn, p. 6). Since the present commentary excludes commercial practice, the fulfillment of criminal offences due to the responsibility of a guide etc. are excluded (for the assessment of criminal law issues in competition, see Toneatti, para. 87 ff.).
The facts of negligent bodily injury and negligent homicide must be examined, for example, if a collision occurs between mountain bikers or with pedestrians. However, case law has so far hardly commented on or dealt with this.
IV Social security law
A. General information on accident insurance
An accident is "the sudden, unintended harmful effect of an unusual external factor on the human body that results in impairment of physical, mental or psychological health or death" (Art. 4 ATSG).
The legal basis for accident insurance is generally found in the Federal Act on the General Part of Social Insurance Law (ATSG; SR 830.1). Its applicability is limited where the Federal Law on Accident Insurance (UVG; SR 832.20) expressly provides for deviations (Art. 1 para. 1 UVG).
One such deviation is the reduction or refusal of benefits in the event of an accident caused by gross negligence (Art. 37 UVG) or by an absolute or relative risk (Art. 39 UVG in conjunction with Art. 50 UVV; see the explanations in Müller, Bergsportkommentar, para. 65ff.).
B. Risk and gross negligence when mountain biking
An absolute risk is to be assumed above all if a dangerous sport is carried out competitively (BGE 141 V, 37, 41, E. 4.2.). A downhill race on a mountain bike, including training on the race track, is considered an absolute risk (judgment of the Social Insurance Court of August 31, 2022, E. 4.1.). In contrast, the hobby practice of mountain biking is not a risk, as mountain biking, in contrast to dirt biking, does not involve spectacular jumps at high speed and therefore no unreasonable risk potential can be assumed (see BGE 141 V, 37, 41f., E. 4.4.).
Whether a mountain bike accident is a case of gross negligence or even a risk can only be determined on a case-by-case basis. The riding style and the corresponding skills for riding the specific route are assessed here (see judgment of the Social Insurance Court of August 31, 2022, E. 2.2.). Accordingly, it must be examined in each individual case whether the specific circumstances were appropriate to the objectively existing risks and dangers. This can be affirmed, for example, by the completion of a driving technique course or many years of experience (judgment of the Social Insurance Court of 31.08.2022, E. 4.2.1.). It must therefore be examined whether all precautions were taken to avoid accidents and whether no particular danger can be assumed (see judgment of the Social Insurance Court of August 31, 2022, E. 2.2.).
Mountain bike routes are classified according to their difficulty into blue (easy), red (medium) and black (difficult) trails (bfu "Mountain bike facilities"). When assessing whether an accident was caused by gross negligence or even recklessness, it must be taken into account whether the rider is an experienced mountain biker who is also capable of mastering higher challenges (see judgment of the Social Insurance Court of 31.08.2022, E. 4.2.3.). For example, the Federal Supreme Court denied a relative risk in the event of a fall of a mountain biker on a blue slope that did not exceed his abilities (BGer judgment 8C_715/2019 of 6.10.2020).
V. The use of hiking trails by mountain bikers
An important and sometimes extremely controversial topic in the area of mountain biking is the use of hiking trails by mountain bikers.
It is prohibited for motor vehicles and bicycles to use roads that are not suitable or obviously not intended for their use (Art. 43 SVG). This driving ban (cf. Art. 5 Para. 1 SVG) arises directly from the federal law and applies even without explicit signaling (BGE 101 Ia 565, 573 E. 4.b.; BSK SVG-Rindlisbacher, Art. 43, N. 3 and 27). However, the fact that this standard dates back to 1958 is relevant with regard to the suitability of such paths and their possible use by mountain bikers. In the meantime, the bicycle, and mountain bikes in particular, have developed to such an extent that technically experienced and good mountain bikers can now ride on practically all trails. There has therefore clearly been a shift in terms of suitability, which has also been taken on board by the Federal Office for Accident Prevention and has already found its way into case law. It can be stated that in the absence of a specific prohibition sign, the assessment of the suitability or purpose of the path in question must be made by the respective users/mountain bikers on the basis of external indications such as appearance, layout and function (BSK SVG-Rindlisbacher, Art. 43, N. 5).
Mountain bikers are therefore permitted to use all paths that are permitted and suitable for bicycles. Due to the special off-road capability of mountain bikes, the range of paths suitable for them is significantly extended. A general riding ban applies in principle on footpaths that are signalized as such (BSK SVG-Rindlisbacher, Art. 43, N. 6f.). On hiking trails, however, such a ban does not apply from the outset and it must be assessed on a case-by-case basis whether the trail is suitable for the mountain biker in question (BSK SVG-Rindlisbacher, Art. 43, N. 9ff.).
The Bicycle Path Act, which came into force in 2023, obliges the cantons to provide paths for mountain bikers. The law forms the legal basis that allows the cantons to address the needs of cyclists, which have existed for a long time, and to create solutions.
Even before the Cycle Route Act came into force, individual cantons were already looking closely at mountain bike infrastructure and legal regulation. In current practice, there are different solutions in the cantons and municipalities. The canton of Graubünden was a pioneer, having successfully coexisted with hikers and mountain bikers for many years. Valais, Jura, Fribourg and the canton of Uri, which has its own bike trail law, have also already addressed the issue. Most cantons have spoken out in favor of the principle of coexistence between hiking and mountain biking and have already enshrined it in law or are in the process of doing so.
In the Canton of Zurich, practice was shaped in particular by the so-called "Uetliberg ruling" of the District Court of Affoltern am Albis in September 2022, in which mountain biking in the forest and the applicable law were assessed (District Court of Affoltern ZH, GB220001-A/U/ak, 20.9.2022). In principle, the (federal and cantonal) Forest Act and the Forest Ordinance are applicable in the forest area. However, the aforementioned judgment also refers to Art. 43 SVG is also taken up. It is therefore stated that both the Federal Road Traffic Act and the Cantonal Forest Act apply in the forest. The passability of a road within the meaning of Art. 43 SVG is interpreted more broadly by the district court than previously. The court justifies this broad interpretation by the change in mountain bikes due to technical progress. In addition, suitability and destination are undefined legal terms and these are particularly related to the personal skills and experience of the individual mountain bikers. The aforementioned ruling is decisive in the canton of Zurich and allows mountain bikers to ride on all trails shown on maps, provided they are not explicitly prohibited. Due to the new interpretation of federal law (SVG), the effects of the ruling are not limited to the canton of Zurich alone, but to the whole of Switzerland.
Today, it can be assumed that driving on hiking trails is generally permitted if the trail is considered suitable and there is no explicit prohibition.
However, the principle still applies that mountain bikers must always show consideration for pedestrians, even on paths marked as mountain bike routes. Accordingly, pedestrians must be given priority over mountain bikers on shared paths (see Art. 54a Para. 3 SSV).