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Materials
Botschaft vom 22. Dezember 2004 zum Bundesgesetz über Seilbahnen zur Personenbeförderung, BBl 2005 895; Botschaft vom 8. Juni 2007 zur Güterverkehrsvorlage BBl 2007 4377; Internationaler Ski Verband (FIS), 10 FIS Verhaltensregeln, Ausgabe 2002/2003, 11 (zit. FIS-Regeln); SBS, Die Verkehrssicherungspflicht auf Schneesportanlagen. Richtlinien mit Erläuterungen, total überarbeitete Ausgabe 2019 (zit. SBS-Richtlinien); SKUS, Schneeportanlagen. Richtlinien für Anlage, Betrieb und Unterhalt, Aufl. 2021 (zit. SKUS-Richtlinien)
I. General
Switzerland is a skiing nation and resort skiing is very popular. However, resort skiing, by which we mean not only skiing on pistes but also snowboarding and the use of sports equipment similar to skis and snowboards (e.g. bigfoots or snowblades), is not free of risks. Every year, an average of 62,000 skiers and snowboarders are involved in skiing accidents on Swiss ski pistes (see BFU statistics).
In connection with these skiing accidents on pistes, various legal questions arise concerning the civil and criminal responsibility as well as the social insurance consequences of such accidents. In particular, the questions of liability and criminal law arise in the relationship between the users of the ski pistes themselves and between the users of the ski pistes and the operators of lifts and ski pistes. Furthermore, social insurance law issues as well as the use of ski pistes for skinning and the requirements for the operation of a ski resort are discussed. This article does not deal with general questions related to ski touring or questions concerning freeriding (see Umbricht/Koch, para. xx) or the use of freestyle parks.
A. Explanation of terms
For the purposes of this commentary, the lift operator is the company that operates the mountain railroad, funicular, cableway, gondola and ski lift infrastructure. The piste operator, on the other hand, is the company responsible for the creation, maintenance and operation of the pistes. Generally, in ski resorts in Switzerland, the lift operators are simultaneously responsible for the maintenance and operation of the ski pistes and thus also assume the role of piste operators. Accordingly, these two terms are used here as synonyms unless explicitly stated otherwise.
Furthermore, the term "piste users" refers to people who ski on skis, snowboards or similar sports equipment.
B. Legal basis and rules of conduct for users of the ski pistes
1. (Lack of) special legal basis for users of ski pistes
There are no special laws at federal level for resort skiing. In particular, the Federal Law on Mountain Guides and Other Risk Activities of 17 December 2010 (RiskG; SR 935.91) is not generally applicable to resort skiing, as it is only applicable to the activity of snow sports instructors outside the responsibility of piste operators (see art. 1 par. 2 lit. b RiskG) and to the activity of mountain guides (see art. 1 par. 2 lit. a RiskG). Thus, the RiskG could only exceptionally be relevant for resort skiing in situations where mountain guides use pistes with their guests (e.g. in the context of a ski tour).
Also on the cantonal level, there are no special legal bases for the practice of resort skiing (on the above Stiffler, Schneesportrecht, § 2 Rz. 20 ). Accordingly, the generally applicable legal bases are also applicable to resort skiing (see below point I. B.2 on the application of the SVG).
2. Applicability of the Road Traffic Act (SVG)
In principle, a signaled ski piste is to be qualified as a public road in the sense of the SVG (BGE 101 Ia 565 E. 4.a. and 4.b.). Thus, the question arises whether, in connection with skiing on pistes, the traffic rules according to the SVG also apply to piste users. A direct application of these traffic rules to piste users is out of question, because the traffic rules according to SVG are only applicable to motor vehicles and bicycles. As an exception, the case can be mentioned in which a motor vehicle (e.g. a snow groomer) registered for use on a piste is involved in an accident with a piste user (see on such a case BGer 6B_405/2013 of 19.05.2014). In this regard, Art. 58 SVG is likely to apply (see below No. II. A. 3d).
Due to the lack of direct applicability of the traffic rules to the users of the ski pistes, some scholars suggest that the traffic rules according to the SVG should be applied by analogy to the users of the ski pistes (see for instance Kraemer, §2 para. 389). However, the Federal Supreme Court has stated in the case of traffic safety obligations of ski piste operators for ski pistes that the principles of traffic safety that apply to roads should not be applied unconditionally to ski pistes (BGE 101 IV 396 E. 3.a). At the same time, in BGE 106 IV 350, the Federal Court has established a rule of conduct for users of ski pistes by analogous application of the principle of trust according to art. 26 SVG together with the FIS rules (BGE 106 IV 350 E. 3.b).
It is also worth mentioning that according to art. 3 para. 5 SVG, cantons can adopt measures for other types of vehicles and road users according to cantonal law. However, the cantons have largely refrained from enacting explicit and specific measures for resort skiing (Stiffler, Schneesportrecht, §2 Rz. 20; Kraemer, §2 Rz. 358 ff.; for an overview of the cantonal regulations see Kraemer, §2 Rz. 299).
In summary, it should be noted that an analogous application of certain traffic rules of the SVG to piste users is at least not a priori excluded. In practice, however, the jurisprudence continues to be clearly based on the FIS rules and the SKUS and SBS guidelines (see I.B.3, para. 11 et seq., I.C.2. and 3. para. 21 et seq. below), when it comes to the evaluation of the obligations of conduct and safety on ski pistes. The question of whether the SVG should be applied has concerned the courts only marginally (Kraemer, § 2 Rz. 307). Whether the analogous application of the traffic rules of the SVG appears to be reasonable, can in our opinion also not be answered in a general way for all traffic rules together. Rather, it would have to be determined individually for each individual traffic rule whether, based on the purpose of such traffic rules, an analogous application to skiing on pistes appears to be justified. This approach would also be consistent with the case law of the Federal Supreme Court, which has rejected the unconditional application of traffic rules from the SVG (BGE 106 IV 350).
3. Rules of conduct for piste users according to FIS rules
The International Ski Federation FIS has defined in the Rules of the Conduct for Skiers and Snowboarders (the FIS Rules) the basic rules for sportsmanlike conduct of careful and responsible users of the ski piste, essentially with the aim of avoiding accidents on ski pistes (see Stiffler, FIS Rules, 7).
The FIS rules in their currently valid version of 2002 include the following ten rules of conduct:
- Respect for others: A skier or snowboarder must behave in such a way that he does not endanger or prejudice others.
- Control of speed and skiing or snowboarding: A skier or snowboarder must move in control. He must adapt his speed and manner of skiing or snowboarding to his personal ability and to the prevailing conditions of terrain, snow and weather as well as to the density of traffic.
- Choice of route: A skier or snowboarder coming from behind must choose his route in such a way that he does not endanger skiers or snowboarders ahead.
- Overtaking: A skier or snowboarder may overtake another skier or snowboarder above or below and to the right or to the left provided that he leaves enough space for the overtaken skier or snowboarder to make any voluntary or involuntary movement.
- Entering, starting and moving upwards: A skier or snowboarder entering a marked run, starting again after stopping or moving upwards on the pistes must look up and down the pistes that he can do so without endangering himself or others.
- Stopping on the piste: Unless absolutely necessary, a skier or snowboarder must avoid stopping on the piste in narrow places or where visibility is restricted. After a fall in such a place, a skier or snowboarder must move clear of the piste as soon as possible.
- Climbing and descending on foot: A skier or snowboarder either climbing or descending on foot must keep to the side of the piste.
- Respect for signs and markings: A skier or snowboarder must respect all signs and markings.
- Assistance: At accidents, every skier or snowboarder is duty bound to assist.
- Identification: Every skier or snowboarder and witness, whether a responsible party or not, must exchange names and addresses following an accident.
The FIS rules apply to all users of ski pistes - every user of the ski pistes is required to know and comply with them. The FIS rules also apply to all forms of movement of piste users on ski pistes, i.e. for descending, stopping, resting or ascending in the snow (Stiffler, Schneesportrecht, § 2 Rz. 43). Other forms of skiing, such as cross-country skiing or ski touring, are not covered by the scope of application of the FIS rules (Stiffler, Schneesportrecht, § 2 Rz. 51 f.; for individual questions concerning the territorial scope of application of the FIS rules, see Ders. § 2 Rz. 55).
The FIS rules are not legal norms. However, they are relevant as a standard of care under civil and criminal law and are regularly applied for this purpose by the courts in Switzerland in the event of skiing accidents (see, for example, judgment of the KGer GR, SK2 21 21 of 30.08.2021, E. 6.2: "Where special standards serving the prevention of accidents and safety require certain conduct, the degree of care to be observed is determined primarily by these rules (BGE 143 IV 138 E. 2.1). In the field of skiing, the rules of conduct of the international skiing federation (FIS rules) can be referred to"; see also BGE 117 IV 415 E. 5.a.; BGE 122 IV 17 E. 2). Thus, piste users who cause a skiing accident in violation of the FIS rules can be held responsible for the consequences under civil and criminal law.
C. Legal basis and rules of conduct for piste operators
1. Special laws for the operation of pistes
The following special laws are relevant in connection with the operation of ski pistes:
a. Cableway Act
The Cableway Act of 23rd June 2006 (SebG; SR 743.01) mainly regulates the "construction and operation of cableways used for the transport of persons" (Art. 1 para. 1 SebG ). It also regulates the following aspects: Liability and compulsory insurance, supervision as well as penal provisions.
The SebG "applies to all cableways used for the transport of persons, namely aerial cableways, funicular railroads, ski lifts and similar transport installations with cable drive (cableways)" (Art. 2 para. 1 SebG). According to Art. 2 para. 2 SebG, the scope of application excludes (i) cableways used in mining, (ii) non-fixed cableways, (iii) fixed and mobile fairground equipment and installations in amusement parks, (iv) military cableways and (v) elevators. Thus, the SebG applies to a large number of cableways - with the exception of railroads, including rack railroads.
The SebG also regulates in particular the liability of the operator of a cableway, for which reference is made to Art. 40b-40f of the Railway Act of 20 December 1957, SR 742.101 (EBG) (Art. 20 SebG). According to this, the operator of a cableway is liable for damage "if the characteristic risks associated with the operation of the railroad [or cableway] result in a person being killed or injured or in damage to property" (Art. 40b para. 1 EBG). However, the operator of a cableway is relieved of liability if a circumstance that cannot be attributed to it, such as force majeure or gross negligence on the part of the injured party or a third party, has contributed to the occurrence of the damage to such an extent that it must be regarded as its main cause (Art. 40c EBG).
b. Ordinance on cableways for passenger transport
The Ropeway Ordinance of 21th December 2006 (Ropeway Ordinance, SebV); SR 743.011 contains "implementing provisions to the SebG as well as the implementing provisions to the PBG concerning ropeways" (Art. 1 SebV). In particular, it regulates the following aspects: Plan approval procedure and licensing, operating permit, operating organization, personnel and technical management, operation and maintenance as well as disposal of the ropeway, supervision, design, construction and commissioning of new ropeways (cf. Art. 1 SebV).
The SebV applies to all cableways within the scope of the SebG (Art. 2 SebV) and specifies the provisions from the SebG and the PBG.
2. SKUS, Guidelines for the Construction, Operation and Maintenance of Snowsport Facilities
The Swiss Commission for Accident Prevention on Snowsport Runs (SKUS) defines in its Guidelines for the Construction, Operation and Maintenance of Snowsport Facilities (SKUS guidelines) how these are to be constructed, operated and maintained (SKUS guidelines, para. 1). The SKUS guidelines are not legal standards, but nevertheless fulfill an important concretization function with regard to the content of the civil and criminal law obligation to ensure safety.
The SKUS guidelines are addressed to those responsible for the piste and rescue services (SKUS guidelines, para. 1). They cover snow sports facilities, i.e. "signaled snow sports areas secured against alpine hazards (avalanche and fall hazards), which are made available to the public by the operators" (SKUS guidelines, marginal note 5). A distinction is made between pistes (marked blue, red and black), unchecked and unprepared ski runs (marked yellow), snow sports trails intended for skiing and snowboarding, and special facilities (SKUS guidelines, para. 6 ff.).
a. Guidelines for the creation and maintenance of pistes
The SKUS guidelines prescribe how pistes and unchecked and unprepared ski runs are to be laid out and maintained by the piste operator. Notable requirements are, for example, that pistes and unchecked and unprepared ski runs are to be laid out in terrain that is as free of danger as possible (SKUS guidelines, para. 12) and are to be marked in such a way that their users can ski downhill safely even in poor visibility conditions, whereby the marking is carried out according to the degree of difficulty and should be different on the right and left side of the piste (SKUS guidelines, para. 16-20). Furthermore, pistes, piste edges and unchecked and unprepared ski runs are to be secured against obstacles that endanger the users by installing the necessary information signals (SKUS guidelines, para. 22) and removing obstacles that can be removed (SKUS guidelines, para. 28 ff.). In addition to obstacles, protection against fall hazards must also be provided by installing barriers (SKUS guidelines, para. 31 f). Finally, it is stated that pistes and unchecked and prepared ski runs are generally open during the operating hours of the transport facilities until the final inspection has been carried out. The use of closed pistes is prohibited (SKUS guidelines, para. 37 ff.).
b. Guidelines for avalanche safety
In connection with avalanches, the SKUS guidelines stipulate that pistes at risk of avalanches must be closed immediately and indicated as closed on orientation signs (SKUS guidelines, para. 33 ff).
c. Guidelines for use
In addition to the piste safety obligations for pistes and unchecked and unprepared ski runs, the SKUS guidelines also define the intended use of pistes and unchecked and unprepared ski runs. In principle, use is reserved for skiers and snowboarders (SKUS guidelines, para. 41), although alternative snow sports equipment may be permitted on pistes and unchecked and unprepared ski runs under certain conditions (SKUS guidelines, para. 42). However, multiple use is to be avoided as far as possible (SKUS guidelines, ref. no. 45). Motor vehicles are in principle not allowed on the pistes during the opening hours of the pistes (SKUS guidelines, ref. no. 46). The piste operator may allow the use of certain snowmobiles (Ski-Doo, Snowmobiles, Quads, etc.) or snow groomers during operating hours under certain conditions specified in the SKUS guidelines (SKUS guidelines, para. 48-49).
3. SBS, Guidelines on Piste Safety Obligations for Snow Sports Facilities
In its guidelines on piste saftey obligations for snow sports facilities (the SBS guidelines), the Legal Issues Commission for Snow sports Facilities of the Swiss Cableways Association (SBS) explains and substantiates the requirements from the SKUS guidelines concerning the installation, operation and maintenance of snow sports facilities (SBS guidelines, marginal note 1). The SBS guidelines, like the SKUS guidelines, are of importance for the defining the applicable civil and criminal law obligations of lift operators to ensure safety.
The SBS guidelines - as already the SKUS guidelines - are addressed to the lift operator and the persons in charge of the piste and rescue services designated by them (SBS guidelines, para. 2).
a. Concretization of the scope of the obligation to ensure piste safety
According to the SBS guidelines, the obligation to ensure safety is limited in terms of subject matter, time and space. The obligation to ensure piste safety is limited to the intended purpose of the facility (for the intended purpose, see SBS guidelines, chapter X), the personal responsibility of the users and the proportionality and reasonableness of the danger prevention (SBS guidelines, para. 6). In terms of time, the duty to ensure safety is limited to the normal operating hours of the transport facilities (see SBS guidelines, Chapter IX). Liability outside the operating hours is excluded (SBS guidelines, para. 7). Spatially, the restriction exists with regard to the marked snow sports areas made available. In the open terrain outside the snow sports facilities, there is no obligation to ensure piste safety (SBS guidelines, para. 8).
b. Concretization of the obligation to ensure piste safety with regard to the creation and maintenance of ski pistes
The pistes must be maintained in such a way that they are in good condition according to the scale of the originally prepared piste (SBS guidelines, para. 19 ff.). For example, humps must be removed depending on the difficulty of a piste (SBS guidelines, marg. no. 23). However, holes from fallen piste users must always be expected (SBS guidelines, para. 24; see also FIS Rule 2). The same applies to erosion, icing or drifts, which can only be removed as part of the piste preparation and which are only to be removed or marked at key points (SBS guidelines, ref. no. 25). However, the closure of a piste is only indicated in the event of total icing and taking into account the degree of difficulty of the piste in question (SBS guidelines, para. 26). In the case of unchecked and unprepared ski runs, which by definition are not groomed pistes (see SKUS guidelines, para. 8), the obligation to ensure piste safety goes less far. In particular, they are not classified according to the degree of difficulty, they are only laid out, prepared and controlled to a limited extent (e.g. cordoning off areas where there is a risk of falling) and no final inspections are carried out (SBS guidelines, ref. no. 31).
c. Concretization of the piste safety obligation regarding avalanche protection
According to Chapter VIII of the SBS guidelines, snow sports facilities must be designed in such a way that they are avalanche-proof under normal winter conditions, although absolute avalanche safety is not required (SBS guidelines, para. 163). Avalanche safety requires a constant and accurate assessment of local weather and snow conditions by a competent person familiar with local conditions (SBS guidelines, para. 165). The avalanche bulletin published by the Institute for Snow and Avalanche Research SLF serves as a basis for this (SBS guidelines, para. 165). Lift operators are obliged to set up an adequate safety system to prevent avalanche accidents. This requires, among other things, the designation of the person responsible for avalanche safety as well as his or her deputy, the determination of the terrain at risk from avalanches, the ongoing recording, collection and evaluation of all information relevant to the hazard assessment, the assurance of the flow of information to the person responsible, and the definition of a concept for the measures and procedures in the event of avalanche danger (SBS guidelines, para. 166).
II. Private law
When skiing on pistes, the principle of personal responsibility applies and users of the pistes are responsible for the dangers inherent in skiing. Therefore, they must also bear the consequences of a skiing accident (see also Stiffler, Schneesportrecht, § 2 Rz. 24 ff.). However, liability and criminal consequences are possible in certain cases, in particular if a skiing accident is caused by disregard of rules of conduct, e.g. disregard of the obligation of the piste operator to ensure safety on the pistes.
This commentary concerning private law liability focuses on substantive law without considering procedural law aspects (see for procedural law aspects in international relations, Riesen, p. 376 ff.).
A. Liability under private law in the relationship between lift operators as piste operators and piste users
In case of accidents on the ski piste or during the transport to the ski piste, the users of the ski piste who have had an accident will assert claims against the piste operator. Usually, piste operators are mountain railroad, cableway and ski lift companies or municipalities - in rare cases, however, also private persons. Below, the possible legal bases of liability against piste operators in case of accidents of piste users are discussed.
In the case of liability of piste operators, the decisive question - irrespective of the legal basis of liability - is whether the piste, on which a damaging event occurred, was sufficiently secured and whether the piste operator complied with its obligations to secure the safety of the piste (Friedli, p. 191; BGer 4A_206/2014 of 18.09.2014, E. 3.2 f.).
It should be noted that the SKUS and SBS guidelines, which define and concretize the essential piste safety obligations for piste operators, state at the outset that piste users act at their own risk (SKUS guidelines, para. 2; SBS guidelines, para. 7). According to this principle of personal responsibility, the SKUS guidelines only aim at minimizing the dangers inherent to skiing (judgment of the KGer VS [Criminal Chamber] of January 9, 2003 i.S. X. c. Untersuchungsrichteramt Oberwallis, ZWR 2003, 321; see also SBS guidelines, para. 5).
1. Contractual liability
a. Transport contract
Piste users who use the infrastructure of a ski resort (including cable cars, chair elevators, ski lifts or elevators) and purchase a ski pass for this purpose generally conclude a transport contract with the lift operator (Hochstrasser, Beförderungsvertrag, para. 125 f.; BGE 113 II 246 E. 3-10; BGE 126 III 113 E. 2.a. bb.; BGE 130 III 193 E. 2.2). With the conclusion of such a transport contract, the carrier undertakes to transport a person on its own responsibility, whereby it owes the transport of the passenger in good time and in good condition and the change of location is the success owed (Hochstrasser, Beförderungsvertrag, paras. 213, 219; cf. Hochstrasser, rechtliche Entwicklungen, 28).
In the event of a defect in the performance of the transport - for example in case of personal injury or death, damage to the goods or delay - the liability of the carrier plays a central role (for the whole, see Hochstrasser, Beförderungsvertrag, Rz. 796 ff.). It should be noted that in the relationship between the lift operator and a piste user, the descent following the transport by lift no longer counts as transport (Hochstrasser, Beförderungsvertrag, marg. no. 128).
b. Basis of liability
In the case of resort skiing, transport by "rope" comes into consideration. In case of liability based on this means of transport, Art. 20 SebG in connection with Art. 40b-40f EBG applies. Art. 40b-40f EBG (see above, II.C.1.a., para. ) is applicable (see also Riesen, p. 374 ff.). The strict liability according to Art. 40b para. 1 EBG is relevant for personal injuries that occur during transport in the transportation infrastructure, e.g. in the case of an injury of a piste user while being transported, e.g. in the case of a collision with an object on the route of the mountain railway or also in the case of damage during transport on a ski lift caused by a loose bar (BBl 2007 4377, p. 4481).
In the event of an injury of a piste user on the descent, the strict liability according to Art. 40b para. 1 EBG does not apply, since a descent is neither part of the transport nor a characteristic risks of the transport operation (BGE 113 II 246 E. 8). Instead, the carrier is liable for the insufficient securing of the piste in accordance with Art. 97 para. 1 in conjunction with Art. Art. 398 para. 2 OR (BGE 113 II 246 ff. E. 3, 6 and 7; KGer VS, judgment of March 7, 2005, CaS 2006, 69 ff. E. 5.a), unless another strict liability or another special legal liability applies (Hochstrasser, Beförderungsvertrag, Rz. 262). In connection with possible liability claims from personal injuries of piste users against a piste operator, in our opinion, no other strict liability or special legal liability is relevant. In particular, there is no contractual liability according to the PBG, since it does not apply to personal injuries (with w.h. Grüning, 360). The basis of liability in these cases is therefore Art. 97 para. 1 in conjunction with Art. 398 para. Art. 398 para. 2 OR due to a breach of the duty to protect as a contractual secondary obligation of the transport contract (Hochstrasser, Beförderungsvertrag, para. 128).
c. Prerequisites for liability according to Art. 97 para. 1 in connection with Art. 398 para. 2 OR
The liability requirements according to Art. 97 para. 1 in connection with Art. 398 para. 2 OR are the general requirements of breach of contract (breach of duty of care), damage, natural and adequate causal connection and fault, whereby the claimant, e.g. an injured piste user, has the burden of proof. For the fault, the burden of proof is reversed, as the fault is presumed according to Art. 97 para. 1 OR (BGE 113 II 246 ff. E. 7; cf. Hochstrasser, Beförderungsvertrag, Rz. 969).
Ski pistes are ancillary facilities within the meaning of Art. 10 SebG (BBl 2005 895, p. 904). Lift operators who build ski pistes and open them for skiing are in principle obliged to take reasonable precautionary and protective measures to avert danger. This so-called piste safety obligation is of a contractual nature and arises as a secondary obligation of the transport contract concluded between the lift operators and the piste user. The piste safety obligation includes ensuring the safety of the pistes and the rescue service (BGE 113 II 246 E. 3-10; BGE 130 III 193 E. 2.2; KGer VS, judgment of 7 March 2005, CaS 2006, 69 ff., E. 5.a). Whoever opens or maintains a ski piste or transports piste users to it is obliged to take the necessary precautionary or protective measures so that the piste users do not suffer any harm from alpine or other dangers that are not inherent to a ski piste as such (Stiffler, Verkehrssicherungspflicht, p. 78). According to the principle of trust, piste users may rely on the safety of the piste (BGE 113 II 246 E. 6.c.; BGE 121 III 358 E. 4.a.). According to the jurisprudence of the Federal Supreme Court, the cost of this is included in the price of the daily and weekly tickets offered for the use of the ski pistes (BGE 113 II 246 E. 3-10; BGE 126 III 113 E. 2.a. bb.; BGE 130 III 193 E. 2.2).
According to established case law, the SKUS and SBS guidelines are used in the sense of a minimum standard for the content of the safety obligation (see BGer 4A_206/2014 of 18.09.2014, E. 33: "As a benchmark [for the obligation to ensure safety], the Federal Supreme Court refers in each case to the guidelines for the installation, operation and maintenance of snow sports facilities (SKUS guidelines) drawn up by the Swiss Commission for Accident Prevention on Snowsport Runs and the guidelines issued by the Swiss Association of Cable Car Companies (SBS guidelines, formerly SVS guidelines)"; see also BGE 130 III 193 E. 2.3. with further references.). In other words, there is a breach of contract giving rise to liability in the sense of a breach of the obligation to ensure safety if a lift operator disregards the specifications from the SKUS and SBS guidelines.
2. Non-contractual liability
a. Competition with contractual liability
If non-contractual claims are in competition with contractual or transport-contractual claims, e.g. from a transport contract (see below IIA.1.a., para. 36 seq.), non-contractual claims have little independent significance (Hochstrasser, Beförderungsvertrag, Rz. 1284). Therefore, the non-contractual liability claims are relevant for persons who use ski pistes without a transport contract, e.g. for touring skiers or snow hikers (Friedli, p. 191). The Federal Court has also confirmed that the liability requirements for contractual liability are not stricter than for non-contractual liability (BGE 113 II 246 E. 7; BGE 121 III 358 E. 4).
b. Liability of the owner of the work (Art. 58 f. OR)
According to Art. 58 OR, the owner of the work is liable for damages caused to third parties by defects in his work. As conditions for liability, Art. 58 OR requires the existence of the general conditions for liability of damage or immaterial harm caused by a defective work, the causality between the defect in the work and the damage or immaterial harm that has occurred, as well as illegality (BSK-Kessler, Art. 58 OR N 6a).
Art. 58 OR requires the defectiveness of a work (BSK-Kessler, Art. 58 OR N 13 f. ). The transportation infrastructure qualifies as works in the sense of Art. 58 OR (BSK-Kessler, Art. 58 OR N 12b; BGE 126 III 113 E. 2.a. cc). However, the liability basis of Art. 58 OR is superseded within the scope of application of the SebG by the special legal liability facts of Art. 20 SebG in connection with Art. 40b-40f EBG. Art. 40b-40f EBG (BSK-Kessler, Art. 58 OR N 12b; cf. II.A.3.d).
Whether ski pistes in general also have the character of a work has not been conclusively clarified and is disputed in the doctrine (BGE 130 III 193 E. 2.2; cf. BSK-Kessler, Art. 58 OR N 12b; cf. BK-Brehm, Art. 58 OR N 30a). The character of a work is to be affirmed in the case of constructions made for ski pistes as well as artificially created and/or worked pistes (BSK-Kessler, Art. 58 OR N 12b; BK-Brehm, Art. 58 OR N 34). For example, ski pistes or sections thereof are considered to be works if they have been created by an actual change of terrain, e.g. by considerable filling or excavation (Vetter, p. 82; cf. BK-Brehm, Art. 58 OR N 34). Furthermore, the character of a work is also affirmed in the case of artificially snow-covered ski pistes, since this changes artificially the substance of the ground (BK-Brehm, Art. 58 OR N 34a). On the other hand, natural ski pistes, which have been created by several users skiing down the same piste, cannot be considered as works, since there is no artificial arrangement created by human hand, but only an intensive use of a snow-covered meadow (BK-Brehm, Art. 58 OR N 31).
A work is defective if it does not provide the safety required for its intended use. For the assessment of the defectiveness, reference must be made primarily to provisions that serve safety and accident prevention (BSK-Kessler, Art. 58 OR N 13, N 15). In the absence of statutory or regulatory provisions, reference may be made to corresponding analogous rules issued by a private or semi-public association, provided that these rules are generally recognized (BSK-Kessler, Art. 58 OR N 15). While the Federal Supreme Court has not yet conclusively clarified the question of the ski piste as a work and thus also the assessment of defective ski pistes, the SKUS guidelines are in each case used as a standard for the assessment of the obligation to ensure piste safety on a ski piste (BGE 121 III 358 E. 4.a.; BGE 126 III 113 E. 2.b.; BGE 130 III 193 E. 2.3). From this it can be concluded that a ski piste, insofar as it has a work character within the meaning of Art. 58 OR, which does not comply with the SKUS and SBS guidelines, would very probably be qualified as a defective ski piste.
If a piste user wishes to assert a non-contractual claim against a lift operator based on Art. 58 of the Swiss Code of Obligations, the prerequisites of damage due to a defective work, i.e. a violation of the SKUS guidelines and SBS guidelines on a section of the piste with work character, the causal connection as well as the illegality must be presented.
c. Liability for wrongful acts (Art. 41 ff. OR)
If no other, more specific non-contractual liability norm, e.g. the work owner liability according to Art. 58 OR, is applicable, Art. 41 OR is applicable as the basic norm of non-contractual liability (BSK-Kessler, Art. 41 OR N 1a). Thus, according to Art. 41 para. 1 OR, whoever unlawfully causes damage to another, whether intentionally or through negligence, is liable to pay compensation. A liability according to Art. 41 OR requires cumulatively a damage, a natural and adequate causal connection between damaging behavior and damage, illegality of the damage and a fault of the damaging party (BSK-Kessler, Art. 41 OR N 2c).
A liability of the piste operator can also arise within the framework of a non-contractual liability according to Art. 41 OR due to the violation of the safety obligation of the piste operator. The obligation of the piste operator to ensure safety has (in addition to a basis in contract law) also a basis in tort law in the law of danger (BGer 4A_206/2014 of 18.09.2014 E. 3.2), i.e. from the general duty to protect to provide the necessary protective measures if a dangerous condition is created or maintained, from which, in view of the recognizable concrete circumstances, damage could arise (Friedli, p. 191). In other words, there is a liability-justifying illegality according to Art. 41 OR as well as fault on the part of a lift operator if it does not fulfill its obligation to ensure safety. For the assessment of the piste safety obligation, the SKUS guidelines as well as the SBS guidelines are used (BGE 130 III 193 E. 2.3 m. w. H.; BGer 4A_489/2014 of 20.02.2015, E. 5.1).
In connection with accidents on ski pistes, personal injuries, which are regulated in more detail in Art. 45-47 OR, whereby compensation is to be paid for the economic disadvantages which result in the killing or injury of a person, are most relevant (BSK-Kessler, Art. 41 OR N 11).
d. Special legal liability bases
In connection with resort skiing, the special legal liability requirements from Art. 20 SebG in connection with Art. 40b-f EBG are relevant. Art. 40b-f EBG, which also supersedes the liability of the owner of the works according to Art. 58 OR (BSK-Kessler, Art. 58 OR N 12b). However, the strict liability of the lift operator is limited to the characteristic risk of the transport operation (see above II.A.1.b, para. 38 seq.).
It should also be mentioned that in the case of a collision with a vehicle registered for use on a ski piste (snow groomer, Ski-Doo, snowmobiles, quads, etc.), according to the case law of the Federal Supreme Court, the rules of the SVG apply. Accordingly, in these constellations the causal liability according to art. 58 SVG is applicable (cf. BGE 116 II 214 E. 1.b). Pursuant to Art. 58 para. 1 SVG, the owner of a motor vehicle whose operation has killed a person, injured a person or caused damage to property is liable for the damage caused. The owner is also liable for the fault of the driver (Art. 58 Abs. 4 SVG). The owner is only exempted from liability if he/she proves that the accident was caused by force majeure or gross negligence on the part of the injured person or a third party, without any fault on his/her part or on the part of persons for whom he/she is responsible, and without a defective condition of the vehicle having contributed to the accident (Art. 59 para. 1 SVG).
3. Case law of the Federal Supreme Court
As examples of private law liability (both contractual and non-contractual), the following decisions can be listed:
The Federal Supreme Court affirmed a liability under private law of lift operators due to a violation of their obligation to ensure piste safety in connection with a missing padding of a tree stump and held that the obligation to ensure piste safety does not only include the protection of the piste users against dangers that are not easily recognizable. The obligation to ensure piste safety also extends to the prevention of damages that cannot be avoided even when skiing carefully, since they are inherent to skiing, provided that this is reasonable for the piste operator (BGE 121 III 358 E. 4.a). Likewise, the Federal Supreme Court affirmed a violation of the obligation to ensure piste safety of a piste operator who used iron poles as piste markings. According to the Federal Supreme Court, it thereby created a source of danger that could have been avoided with reasonable effort by using plastic poles or padding the iron poles (BGer 4A_206/2014 of 18.09.2014 E. 3.4).
On the other hand, the Federal Supreme Court denied a violation of the obligation to ensure safety on the pistes due to the lack of padding on a ski lift mast that was not located close to a ski run. The injury of the user of the ski piste during a descent on the ski lift path after voluntarily leaving the ski lift was an unintended use of the ski lift which the ski lift operator did not have to expect (BGE 126 III 113 E. 2.c). In another decision, the Federal Supreme Court held that the obligation to ensure piste safety was not violated in case of an icy ski lift track as there was no obligation to prepare the ski lift track by machine, since an icy ground represents a risk inherent to the skiing. Since the ski lift served a difficult ski piste and was provided with a corresponding warning notice, the piste user had to expect that the ascent to the ski piste was also difficult and only suitable for good piste users (BGer 4A_235/2007 of 01.10.2007, E. 5.5 ff.).
Concerning the extension of the obligation to maintain safety, the Federal Supreme Court stated that the surface of the ski piste and the edge of the ski piste are covered. However, it denied an obligation to ensure piste safety for a cut in the terrain that was 12 meters away from the edge of the piste, since this would not be reasonable and proportionate. At the same time, the Federal Supreme Court held that icing of a piste must not lead to an aggravation of liability (BGE 130 III 193 E. 2.5). Furthermore, the Federal Court denied a duty to ensure safety for "wild pistes", i.e. for pistes created by multiple skiing, which are located in open terrain (BGer 4C.54/2004 of 01.06.2004, E. 2.5.2).
4. Overview of liability bases
The above analysis of the liability bases under private law showed that - irrespective of the specific liability basis - compliance with the duty to ensure piste safety is decisive for the liability of a lift operator, whereby the SKUS and SBS guidelines are to be used as a benchmark for the duty to ensure piste safety.
In summary, the following bases of liability are relevant in personal injury cases:
| With transport contract: | Without a transport contract (e.g. backcountry skiers or snowshoers using a ski piste): |
| Art. 40b EBG in the event of damage in connection with the characteristic risk of travel on the transportation infrastructure | Art. 58 OR, if the damage occurred on a section of the piste with work quality within the meaning of Art. 58 OR |
| Art. 97 para. 1 OR for other damages, e.g. accidents on a ski piste | Art. 41 OR, if the damage occurred on a section of the piste without work quality in the sense of Art. 58 OR |
B. Private liability among users of ski pistes
1. Contractual liability
Usually there is no contract between different users of ski pistes, so there is no possibility of contractual liability.
Special cases in which a contractual relationship exists can be contracts between piste users and ski instructors in the context of ski lessons. Since such an instruction contract is usually to be qualified as a contractual relationship within the meaning of Art. 394 OR, contractual claims in case of violations of the duty of care of the ski instructors according to Art. 398 para. 2 OR could come into question. For explanations on the contractual liability in case of violation of the duty of care according to Art. 97 para. 1 OR in connection with Art. 398 para. 2 OR (see above REF _Ref120287928 \w \h II.A.2.c). For the assessment of the duty of care of the ski instructors, the FIS rules as well as the SKUS and SBS guidelines are particularly relevant. For example, a violation of the duty of care may exist if a ski instructor leads his/her students on a closed piste (cf. the criminal liability of a ski instructor who skied with his students off-piste BGE 125 IV 9).
2. Non-contractual liability
In the context of non-contractual liability between piste users, only a non-contractual liability according to Art. 41 OR seems to be relevant as a basis of liability (see for the general conditions of liability II.A.2.c., para. 49).
Whether the facts of non-contractual liability according to Art. 41 of the Code of Obligations are fulfilled depends mainly on whether a piste user who caused an accident acted at least negligently. In order to determine this, it is necessary to consider whether the FIS rules have been respected (Stiffler, FIS rules, p. 8; BGE 106 IV 350; on the violation of the FIS rules, see the criminal casuistry in REF _Ref120289283 \w \h III.C., para. 75 et seq. below).
III. Criminal Law
A. Overview of possible criminal offenses
Accidents on ski pistes can also have consequences under criminal law. From the point of view of criminal law, the main offences are homicide through negligence (Art. 117 StGB), assault through negligence (Art. 125 StGB) and disruption of public traffic through negligence (Art. 237 StGB). It is not excluded that these offences are also intentionally (including with conditional intent) committed on ski pistes. In the context of ski accidents caused by too fast and uncontrollable skiing at blind spots, the question arises whether the violation of the FIS rule 2 - that one must always ski by sight and adjust speed and skiing style - is not conditionally intentional, because one accepts that an accident may occur. The same applies to piste operators who do not secure obvious hazards, such as crash sites, sufficiently or at all.
Other offenses that may be considered are acts of aggression (Art. 126 StGB), abandonment (Art. 127 StGB), failure to offer aid in an emergency (Art. 128 StGB), and endangering life (Art. 129 StGB).
Acts of aggression may occur if a skiing accident leads to physical consequences which have not yet reached the threshold of bodily injury (see below No. III. B. 3). As the subjective element of acts of aggression cannot be fulfilled by negligence, the scope of application of art. 126 StGB in the context of resort skiing appears to be small.
In the context of resort skiing, the scope of application of the abandonment according to art. 127 StGB seems to be small and at most relevant in the context of children who are left behind by their parents or other guarantors (e.g. ski instructors) in an exposed place or in cold weather.
The fulfillment of the failure to offer aid in an emergency appears realistic on the ski piste in cases where one does not help a person whom one has injured in connection with a skiing accident or when one sees a piste user who is in imminent danger of death and does not help this person. Considering that, especially in cold temperatures, injuries on the mountain can regularly lead to life-threatening situations, piste users should provide assistance, especially on isolated and less frequented ski pistes. The general obligation to provide assistance in the event of a skiing accident on the pistes is also derived from FIS rule 9.
Article 129 StGB could be applicable to people skiing above pistes that are closed due to avalanche danger and trigger an avalanche burying piste and rescue services working on the closed piste (Stiffler, Schneesportrecht, § 2 Rz. 192).
Therefore, based on the above, as the offences of disruption of public traffic, assault and homicide are seldomly committed intentionally in the context of resort skiing and considering that acts of aggression, abandonment, failure to aid in an emergency and endangering life are also offences with little practical importance and judicial scrutiny, these offences will not be discussed further at this point.
B. Offenses through negligence
According to art. 12 para. 3 StGB, negligence occurs when a perpetrator does not take into account the consequences of his or her behavior due to carelessness in breach of duty. In order to assess whether the carelessness is contrary to duty, the rules of conduct and piste safety obligations outlined in the FIS rules and the SKUS and SBS guidelines are also relevant in the criminal law context (cf. BGE 106 IV 350 E. 3; BGE 130 III 193 E. 2.3). A criminal conviction comes therefore mainly in question if a skiing accident fulfills a criminal offence and can be traced back to the violation of the FIS rules or the SKUS and SBS guidelines (cf. BGE 106 IV 350 E. 3; BGer 6B_925/2008 of 09.03.2009, E. 1.3; BGer 6B_1209/2020 of 26.10.2021, E. 2.4.3 f.).
The scope of the obligation to ensure piste safety according to the SKUS and SBS guidelines is determined by the circumstances and the reasonableness of the prevention of danger. The piste operators have to eliminate those dangers that the piste users do not have to expect, because they are not recognizable with sufficient attention and act like traps (BGE 115 IV 189 E. 3.c.; BGE 121 III 358 E. 4.a).
The perpetrators can be other piste users as well as piste operators, usually being the lift operators or the employees of the piste operators responsible for the ski pistes (hereinafter referred to as piste operators).
The above-mentioned offenses of homicide through negligence, assault through negligence and negligent disruption of public traffic may also be committed by omission, provided that a guarantor position existed for the performance of the omitted act, it would have been possible to perform this act and the failure to act in breach of duty led to the fulfillment of the respective offense (cf. Art. 11 StGB).
C. Criminal law relevant facts for lift operators as piste operators
In the case of companies acting as operators of lift or ski pistes, it should be noted that, due to the principle of individual responsibility applicable in criminal law, companies are only held criminally responsible if the requirements of Art. 102 StGB are met. According to this provision, only in case of a deficient organization of a company, which does not allow to attribute a crime or offense to a specific natural person, may this crime or offense be attributed to the company.
In the context of ski accidents, a lift or piste operator could thus be held criminally liable if, due to its internal organization, it is not comprehensible which employee is responsible for the piste safety obligations relevant in the specific case. However, since the SBS guidelines require, in particular with regard to safeguarding against avalanche hazards, that a responsible person is designated (cf. SBS guidelines, para. 166), the piste safety obligations are designed in a way which allows the assignment of certain acts to a responsible person.
1. Disruption of public traffic (Art. 237 StGB)
The disruption of public traffic is committed by piste operators if they negligently obstruct, disrupt or endanger public traffic on the roads, on water or in the air and thereby intentionally or through negligence causes danger to the life and limb of other people (Art. 237 StGB). The scope of application of art. 237 StGB extends, according to the general opinion, not only to roads but also to chairlifts and signaled ski pistes (BSK-Fiolka, Art. 237 StGB N 13; Stratenwerth/Bommer, § 32 N 5 m.w.H.; see also BGE 101 IV 396 E. 3; BGE 138 IV 124).
With regard to piste operators, this offence is particularly relevant in the case of avalanches. Piste operators have to take into account the safety obligations defined by the Federal Supreme Court, the SKUS and SBS guidelines (Friedli, p. 192). Thus, piste operators, acting through their piste managers, are obliged to ensure the safety of the pistes (BGE 125 IV 9 E. 2). Pistes are only to be opened if their safety can be and has been be adequately ensured (BGE 125 IV 9 E. 2). In connection with avalanches, a violation of the obligation to ensure safety is regularly given if, despite the foreseeability of the avalanche danger, the pistes were not closed. In case of doubt, a piste at risk of avalanches must be closed (BGE 125 IV 9 E. 2).
To fulfill the subjective requirements of this offence, the foreseeability of the risk of an avalanche is relevant for the assessment of whether negligence was involved, in particular in connection with avalanches (Friedli, p. 190; BGE 128 IV 124 E 4.4.1). The question must be answered from the point of view of the person responsible at the time before the accident (Nay, 57; BGE 138 IV 124 E 4.4.1).
The Federal Supreme Court affirmed the fulfillment of the offense of disruption of public traffic, for example, in the case of a piste manager who only consulted the avalanche bulletin and did not carry out any further investigations until the early afternoon and therefore did not close off a piste. As a result, a piste user was buried by an avalanche and died in hospital (BGE 138 IV 124). In another case, the Federal Supreme Court held that the offence of disruption of public traffic can also be fulfilled by not setting up a sufficient safety protocol that allows the assessment of the avalanche risk. A sufficient safety protocol includes the recording, collection, evaluation and forwarding of the necessary information so that it can be assessed whether a ski piste is safe and that it is ensured that the ski piste remains closed in case of doubt (BGE 125 IV 9 E. 2.a).
2. Assault through negligence
Skiing accidents regularly have the potential to cause injury to the piste users involved. Depending on how severe these injuries are, there could be a case of common or serious assault. In order for a piste operator to be guilty of assault, the skiing accident must, in a subjective sense, be due to the breach of a duty to ensure safety on the part of the transportation infrastructure or the person responsible for the piste in accordance with the SKUS and SBS guidelines. Such a violation is usually committed negligently and not intentional. In the assessment of whether the obligation to ensure piste safety has been violated, the foreseeability of the risk of accident plays a central role - as it is the case in connection with the negligent disruption of public traffic. According to the SKUS and SBS guidelines, the decisive factor is, in particular, whether there is a trap-like danger or an unavoidable danger that the piste users must generally not expect (see above III.B, para. 72). For example, the users of the ski pistes can rely on the fact that the participants of a ski race will not go from the race piste to the public ski piste. Accordingly, the race director, who failed to sufficiently delimit the finish run of a race from the public ski piste, resulting in a collision between a racer and a regular piste user, was found guilty of negligent grievous bodily harm under art. 125 para. 2 StGB (BGer 6S.587/2006 of 24.04.2007, E. 2.2.1. ff.). In connection with a sharp-edged ski lift support, the Federal Supreme Court held that a mere signaling of this danger is not sufficient, but only its cushioning (BGE 111 IV 15 E. 2). Finally, it should be noted that the obligation to ensure piste safety can also refer to secondary areas adjacent to ski pistes (cf. BGE 101 IV 396 E. 2.b).
In summary, it should be noted that in connection with skiing accidents, the question of the fulfillment of the offense of assault through negligence is likely to arise frequently. However, a successful conviction of a piste operator presupposes that the piste safety obligations according to the SKUS and SBS guidelines have not been complied with, which may not always be easy to prove.
3. Homicide through negligence
Mountain lift operators or the persons responsible for the observance of the piste safety obligations may be liable to prosecution for homicide through negligence (Art. 117 StGB) in particular if a skiing accident ends fatally due to the disregard of a piste safety obligation by the person responsible for piste saftey. On Swiss ski pistes, an average of six accidents per year end fatally. Compared to the approximately 62,000 skiing and snowboarding accidents that occur annually, this is a small number (see I), which means that the crime of homicide through negligence in connection with resort skiing is (fortunately) only of secondary importance.
From the case law of the Federal Supreme Court it can be inferred that, in addition to the question of whether the piste safety obligations according to the SKUS and SBS guidelines have been fulfilled by the piste operator (cf. for example BGer 6S.379/2002 of 27.11.2002, E. 3.4), the question also arises as to whether this piste safety obligation refers to the edge of the piste or to an area adjacent to the piste, since the dangers are disproportionately higher there due to the terrain and therefore a fatal accident is more likely to occur. Thus, for example, in the area of the valley station, the piste safety obligations may extend to nearby adjacent areas of the ski piste in terms of area (BGE 109 IV 99 E. 1). In the case of potentially dangerous obstacles (e.g. a hollow) in the secondary areas adjacent to the ski piste, there is then also the obligation to point out the danger, whereby here too the circumstances of the individual case must be taken into account (BGE 122 IV 193 E. 2).
The fulfillment of the offense of homicide through negligence also comes into question in connection with avalanches on ski pistes. In this context, the criminal liability depends, similarly to the disruption of the public traffic through negligence (see above III.C.1., para. 77 et seq), mainly on whether the avalanche was foreseeable and the pistes should therefore have been closed (cf. BGE 125 IV 9 E. 2.a.; BGE 138 IV 124 E. 4.4.6).
D. Criminal offences among piste users
If skiing accidents happen due to collisions between piste users, the question arises whether the piste users involved in the skiing accident have committed a criminal offense, namely homicide through negligence (Art. 117 StGB), assault through negligence (Art. 125 StGB) or negligent interference with public traffic (Art. 237 StGB).
For the assessment of the obligations of conduct relevant to the question of negligence, the FIS rules are of particular importance for users of the ski pistes. According to the jurisprudence of the Federal Supreme Court, the FIS rules determine whether the piste users involved in a skiing accident have behaved in accordance with their duties (BGE 106 IV 350 E. 3).
1. Disruption of public traffic through negligence (Art. 237 StGB)
Piste users can also be guilty of disruption of public traffic through negligence pursuant to art. 237 no. 2 StGB, namely if they negligently trigger an avalanche which buries a piste (cf. judgement of the KGer VS of 24.04.2009, ZWR 2009, 328 ff. E. 4). The fulfillment of the offense of disruption of public traffic through negligence by triggering an avalanche requires that the piste user moves outside the signaled and open pistes, for example because he/she traverses between two signaled pistes or descends next to a piste in unsecured terrain. The question of whether the offense of disruption of public traffic through negligence by triggering an avalanche is therefore also relevant in connection with ski touring and off-piste skiing in the proximity of ski pistes (see for further details Umbricht/Koch, para. xx).
Also, for the assessment of whether the triggering of an avalanche fulfills the elements of the crime of disruption of public traffic through negligence, the key may lie in determining whether an avalanche could have been foreseen. For this purpose, it is important to know whether the piste operator correctly warned of the avalanche danger, whether certain pistes and/or passages were closed and whether, for example, blasting operations were carried out. If this is the case and an avalanche occurs without violation of the duties of care incumbent on the piste operator, the foreseeability should rarely be given (BGer 6B_410/2015 of 28.10. 2015, E. 1.4). In the case of an off-piste skier who triggered an avalanche in Zermatt at level 3 avalanche danger, he was convicted of negligent disturbance of public traffic (judgment of the KGer VS of 24.04.2009, ZWR 2009, 328 ff. E. 4).
As soon as a piste user leaves the signaled pistes, the piste user should not only read the avalanche bulletin, but also be aware of the safety measures taken by the piste operator and follow the markings and signals regarding avalanche danger, in order to minimize the risk of criminal liability. However, the question arises whether it is possible in practice to have detailed knowledge of all the safety measures taken by the piste operator to minimize the risk of avalanches.
2. Assault through negligence (Art. 125 StGB)
In case of a skiing accident between two or more involved piste users, the FIS rules must be taken into account for the criminal assessment of the behaviors of the persons involved, unlike in the case of a possible culpability of the operator of the ski pistes (BGE 106 IV 350 E. 3). Furthermore, it should be noted that the Federal Supreme Court, analogously to the SVG, assumes a principle of trust, which is also applicable to the ski piste. Thus, a piste user on a ski piste may trust that piste users waiting at the edge of the piste will not suddenly cross the piste according to FIS rule 5 (BGE 106 IV 350 E. 3.b).
The Federal Supreme Court affirmed, for example, the criminal liability of a piste user who collided with a group of skiers who were providing assistance to a piste user, who had previously had an accident, behind a hump on the piste. The Federal Supreme Court held that the accused piste user did not ski by sight and did not ski at an adapted speed, which would have been appropriate due to the obstructed visibility of the piste (for the whole see BGE 122 IV 17). Similarly, a piste user was sentenced according to art. 125 StGB because he collided with a piste user breaking away from a group before reaching the valley station. In front of the valley station, it is to be expected that people move around and do not pay attention to piste users passing by at high speed. It can be demanded from the persons staying in this area that each person who starts moving does not obstruct other piste users or does not cut off the path of passing piste users. At the same time, however, piste users passing through must choose their speed and path in such a way that they can still take evasive action if a stationary piste user suddenly shifts and must not rely on other piste users giving them the right of way. A correspondingly inappropriate skiing style, in which it is no longer possible to give way, constitutes imprudence in breach of duty (for the whole, see BGE 106 IV 350).
3. Homicide through negligence (Art. 117 StGB)
In the case of fatal skiing accidents, the involved (law enforcement) authorities will usually examine the facts of homicide through negligence according to art. 117 StGB (for the conditions of the offence pursuant to art. 117 StGB, see above III.C.3., para 83 et seq.). As in the case of assault through negligence, the assessment of the breach of duty must be based on whether the piste users involved in a skiing accident have complied with the FIS rules or not. Accordingly, for further explanations, reference can be made to REF _Ref120289713 \w \h III.C.3 with the difference that the conduct must lead not only to an injury, but also to the death of the piste user involved in the accident.
IV. Social insurance law
In the area of social insurance law, the UVG is particularly relevant in connection with skiing accidents, which are to be qualified as occupational or non-occupational accidents according to Art. 6 para. 1 UVG.
A. Reductions in benefits due to a risky behavior
In connection with skiing accidents, the question arises whether and to what extent benefits under the UVG can be reduced as a result of a risky behavior. According to Art. 39 UVG in conjunction with. Art. 50 para. 1 UVV, the cash benefits under the UVG can be reduced by half in the case of non-occupational accidents caused by risky behaviors, and can be refused altogether in particularly serious cases.
Reductions in benefits under the title of a risky behavior are only possible in the area of non-occupational accidents pursuant to Art. 8 UVG. If a person takes a risk in connection with his or her occupation, no reductions are possible (BSK-Brunner/Vollenweider, Art. 39 UVG N 5). In skiing, reductions in benefits are therefore excluded, for example, in the case of accidents suffered by ski instructors or mountain guides who are on the pistes with their guests.
According to Art. 50 Para. 2 UVV, risky behaviors are defined as actions that expose the insured person to a particularly great danger without taking or being able to take precautions to limit the risk to a reasonable level. A risky behavior has the following constituent elements: First, a great danger must be incurred, which is understood as an imminent, acute danger that has a character ranging from the bold to the audacious (BSK-Brunner/Vollenweider, Art. 39 UVG N 44; Erni, p. 25). Secondly, the great danger must be knowingly entered into by the insured person, whereby, according to the Federal Supreme Court, an abstract knowledge regarding the dangerousness of the action or also a hypothetical knowledge, if the person had thought about it, is sufficient (BSK 138 V 522 E. 6.5.1). It is therefore not necessary that the insured person is informed about the concrete circumstances of the hazardous situation (BSK-Brunner/Vollenweider, Art. 39 UVG N 46 ff. with further references). However, a risky behavior does not require intent regarding the accident, but intent may play a role in assessing whether all measures have been taken to reduce the risk to a reasonable level (BSK-Brunner/Vollenweider, Art. 39 UVG N 44).
Furthermore, doctrine and case law distinguish between absolutely and relatively risky behaviors (see also Müller, para. 69 et seq.):
An absolutely risky behavior exists if a dangerous action is not worthy of protection or if the action is associated with particularly great risks to life that cannot be reduced to a reasonable level, even if it is practiced under the most favorable conditions with regard to the insured person's training, preparation, equipment, skills, etc. (BGE 138 V 522 E. 3.1 m.w.H.; see BSK-Brunner/Vollenweider, Art. 39 UVG N 59 ff. for an overview of the Federal Supreme Court case law on absolute risks). From the examples of absolutely risky behaviors published by SUVA, it is evident that in the field of skiing, only record skiing speeds are listed as an absolutely risky behavior.
A relatively risky behavior exists in the case of actions that are not reckless per se, but for which the insured person fails to reduce the objectively existing risks and dangers to an acceptable level, although this would have been possible (BGE 138 V 522 E. 3.1. m.w.H.; BGE 141 V 37 E. 2.3). A relatively risky behavior exists if the insured person did not meet all the required conditions regarding personal abilities, character and preparation for the performance of a dangerous act (BSK-Brunner/Vollenweider, Art. 39 UVG N 51). Thus, the existence of a relatively risky behavior depends on the specific circumstances of the individual case (Erni, p. 22). According to the doctrine, a relatively risky behavior can exist in connection with skiing if the applicable FIS rules or general precautionary rules, such as the closure of pistes or the instructions of the pistes operators, are grossly disregarded (BSK-Brunner/Vollenweider, Art. 39 UVG N 52). On the other hand, skiing on signaled and open pistes is not a relatively risky behavior (Erni, p. 29). Against this background, in our opinion, actions off-piste the pistes or on closed pistes or in difficult conditions or weather should be considered as relatively risky behavior.
Finally, it should be noted that according to Art. 50, para. 2, second sentence of the UVV, rescue operations for the benefit of persons are also insured if they are themselves considered risky behaviors. Skiers can invoke this exception when they perform rescue operations for themselves or for injured persons, provided that they choose the rescue operations that involve the least risk (BSK-Brunner/Vollenweider, Art. 39 UVG N 55).
B. Reductions in benefits due to gross negligence
If an insured person has caused a non-occupational accident through gross negligence, he or she may have half of the daily allowance reduced for the first two years after the accident in accordance with Art. 37 para. 2 UVG (see Erni, p. 33 f. regarding the difficulties in distinguishing between risky behaviors and gross negligence).
In connection with skiing, it is possible under this title to reduce the daily allowance benefits under the UVG if an accident was caused by grossly negligent behavior of the insured person, e.g. in case of disregard of the FIS rules or skiing under the influence of alcohol, even if the behavior does not constitute a risky behavior within the meaning of Art. 50 UVV. According to the information provided by Koordination Schweiz AG, a reduction of 10% to 30% is possible in the event of speeding or reckless driving under the influence of alcohol (see https://www.koordination.ch/de/online-handbuch/uvg/grobfahrlaessigkeit/#c53427).
V. Specific questions
A. Skinning and pedestrians on ski pistes
For skiers ascending on a ski piste, FIS rule no. 7 must be observed. According to this rule, users ascending or descending on foot must use the edge of the piste. If people skinning up a piste leave the edge of the piste when ascending, for example by crossing the piste to reduce the steepness of their tracks, they are in breach of this FIS rule. It should be noted that this rule does not apply to pedestrians or sledders. However, they are subject to the general requirement not to endanger or harm anyone by their behavior (Stiffler, Schneesportrecht, § 2 Rz. 50), which in our opinion should regularly be the case when not remaining on the edge of the piste.
Furthermore, people skinning up a ski piste should pay attention to the opening hours. Ski pistes are closed from the final check after the railroad operating hours, as they are prepared by piste operators during this time and piste operators are obliged to point out the closure of the ski piste outside the operating hours and the dangers of avalanche blasting and snow groomers with winches or cutters (SKUS guidelines, para. 37 f.). People skinning up on closed ski pistes despite this warning are acting with gross negligence and therefore at their own risk. In such cases, the assertion of liability claims against a lift operator is likely to fail due to the own fault of the person skinning up the piste. Furthermore, in such situations, there is usually a risk, especially when snow groomers with winches or cutters are in use.
These above-mentioned principles for skinning on ski pistes are also reflected in clauses 1 and 2 of the SAC rules for ski touring on piste (available at: https://www.sac-cas.ch/de/leistungssport/skitourenrennen/skitourengehen-auf-pisten/) (see for further details Umbricht/Koch, para. xx).
B. Ski resort operation
The explanations are intended to provide a brief outline of the legally relevant requirements for the operation of a ski resort. See for a detailed overview Bütler, 412 ff.
- Cableway / transport law: The operation of cableways in connection with a ski area is subject to a concession requirement according to the PBG or according to cantonal permit requirements, provided that only ski lifts (T-bar lifts) and small cableways are operated (Art. 7 para. 1 PBG). Cableways with a federal concession require a planning approval procedure in accordance with Art. 11 ff. SebG.
- Spatial planning / building law: From the point of view of spatial planning, ski areas generally require a basis in a cantonal structure plan within the meaning of Art. 6 RPG (except for ski areas without supraregional importance) as well as a land use plan within the meaning of Art. 14 RPG (see also Bütler, 417). The ski pistes themselves are to be defined in the land use plan either as a ski sport zone, as an overlayingski sport zone with other permitted uses, or in the form of a special use zone (Bütler, 417). Furthermore, the construction of new ski pistes and transportation infrastructures regularly requires a permit under building law, unless the ski sport facility has been approved within the framework of a planning approval procedure under federal law (Bütler, 421), e.g. according to Art. 11 ff. SebG.
- Environmental law / nature and heritage protection: Transportation infrastructures are generally considered to be installations that can significantly impact environmental areas within the meaning of Art. 10a Para. 2 USG and are therefore subject to an obligation to carry out an environmental impact assessment. Thus, Annex 6 of the UVPV mentions, among other things, cableways with a federal concession, ski lifts for opening up new terrain or for connecting snow sports areas, terrain changes of more than 5000m2 for snow sports facilities and snow-making facilities for an area of more than 50,000m2 as installations that are subject to an environmental impact assessment according to the USG or according to cantonal environmental impact assessments.
- Ski areas must also meet the requirements of the NHG and comply with existing hunting bans and game rest zones in accordance with the JSG and cantonal regulations. If the development or expansion of a ski area requires forest clearing, the permit requirements of the WaG must also be observed. In the case of interventions in bodies of water, the requirements of the GSchG and the BGF must also be observed.