Ski touring and off-piste skiing (part 2)

Literature

Anthamatten, Fritz, Das Bergführer- und Skilehrerwesen in der Schweiz, Diss. Zurich 1986; Arter, Oliver/Gut, Eva, Verantwortlichkeit des Veranstalters von Sportanlässen, in: Kleiner, Jan /Baddeley, Margareta/Arter, Oliver (eds.), Sportrecht - Band II, 2018, p. 79 f.; Benisowitsch Gregor, Die strafrechtliche Beurteilung von Bergunfällen, Diss. Zurich 1993; Bütler, Michael, Gletscher im Blickfeld des Rechts, Diss. Zurich 2006; Christen, Rita, Gutachten bei Bergunfällen, HAVE 2015, p. 268 ff.; Elsener, Fabio/Wälchli, Dominic, Pisten-Skifahren, in: Schneuwly, Anne Mirjam/Müller, Rahel (eds.), Bergsportkommentar; Ermacora, Andreas, Die Haftung von Sportlehrern und Bergführern im alpinen Raum, ZVR 2013/249, Vienna 2013, p. 455 ff.; Feser, Holger/Lustenberger, Erik, Haftungsfragen bei Erstellung und Unterhalt von Kletterrouten, in: Sicherheit & Recht 1/2014 , p. 3 ff.; Friedli, Felix, Die Pistensicherungspflicht, HAVE 2020, p. 188 ff.; Gerber, Andreas, Strafrechtliche Aspekte von Lawinen- und Bergunfällen unter Berücksichtigung der schweizerischen Gerichtspraxis, Diss. Zurich 1979; Honsell, Heinrich, Swiss Code of Obligations, Special Part, 10th ed, Bern 2017; Kleppe, Peter, Die Haftung bei Skiunfällen in den Alpenländern, Munich and Berlin 1967; Koch, Patrick, Skitouren und Variantenfahren - Teil 1, in: Schneuwly, Anne Mirjam/Müller, Rahel (eds.), Bergsportkommentar; Kocholl, Dominik, Führung und Führer am Berg: Verhältnis zum Bergsportler und "erlaubte" Führungstechniken, in: Klett, Barbara (ed.), Haftung am Berg, Zurich 2013, p. 145 ff.; Koller, Alfred, Berner Kommentar, Der Werkvertrag, Art. 363-366 OR, Bern 1998; Kramer, Ernst A., Berner Kommentar, Allgemeine Einleitung in das schweizerische OR, Bern 1986; Krauskopf, Frédéric, Der Auftrag, in: Gauch, Peter/Stöckli, Hubert (eds.), Präjudizienbuch OR, Die Rechtsprechung des Bundesgerichts (1875-2020), Zurich 2021, p. 1128 ff.; Lustenberger, Erik, Die Eigenverantwortung im Alpinismus, in: Klett, Barbara (ed.), Haftung am Berg, Zurich 2013, p. 115 ff.; Mathys, Heinz Walter, Eigenverantwortlichkeit und Verkehrssicherungspflicht für Schneesportabfahrten, ZBJV 2008, 645 ff.; Mohr, Philipp, Der Fall Monica Seles - Personenschutz als Verkehrssicherungspflicht des Sportturnierveranstalters? 19.12.1996 - 305 o 140/96 = NJW 1997, 2606, SpuRt 1997, p. 191 ff.; Müller, Franz/Sidiropoulos, Alexia, Die Verfahren bei Bergunfällen aus anwaltlicher Sicht, in: Schneuwly, Anne Mirjam/Müller, Rahel (Hrsg.), Bergsportkommentar; Müller, Rahel, Bergsportrecht: Einführung und Grundlagen, in: Schneuwly, Anne Mirjam/Müller, Rahel (eds.), Bergsportkommentar, (cited Bergsportkommentar); Dieselbe, Haftungsfragen am Berg, Diss. Bern 2016 (cited as Haftungsfragen); Dieselbe, Die neue Risikoaktivitätengesetzgebung, in: Haftung am Berg, Klett, B. (ed.), Zurich 2013, pp. 185-205 (cited as Risikoaktivitätengesetzgebung, HAVE); Dieselbe, Die neue Risikoaktivitätengesetzgebung - was erwartet uns per 1. January 2014, in: Sicherheit & Recht, 2/2013, 94-106 (cited as Risikoaktivitätengesetzgebung, Sicherheit & Recht); Munter, Werner, 3x3 Lawinen, Risikomanagement im Wintersport, 6th ed, Bozen 2017; Nef, Jürg, Haftpflicht und Versicherungsschutz des Bergsteigers, Diss. Zurich 1987; Nosetti, Pascal, Die Haftung bei geführten Sportangeboten mit erhöhtem Risiko, Diss. Zurich 2012; Oser, David/Weber, Rolf H., in: Widmer Lüchinger, Corinne/Oser, David (eds.), Basler Kommentar, Obligationenrecht I, 7th ed, Basel 20219; Pachmann, Thilo, Die Haftung des ehrenamtlich tätigen Vereinsvorstands und ihre Beschränkung, in: Dedeyan, Daniel (ed.), Vertrauen - Vertrag - Verantwortung, Festschrift für Hans Caspar von der Crone zum 50. Geburtstag, 2007, p. 255 ff. Portner, Carlo, Rechtliches aus dem Bergführer-, Skilehrer- und Bergrettungswesen, Haldenstein 1988; Riemer, Hans Michael, Berner Kommentar, Die Vereine, Systematischer Teil und Kommentar zu Art. 60-79 ZGB, Bern 1990; Roberto, Vito, in: Widmer Lüchinger, Corinne/Oser, David (eds.), Basler Kommentar, Obligationenrecht I, 7th ed, Basel 2019; Röckrath, Luidger, Die Haftung des Sportvereins als Veranstalter unter besonderer Berücksichtigung des Bergsports, in: SpuRt5/2003, p. 189 ff.; Schwenzer, Ingeborg/Fountoulakis, Christiana, Schweizerisches Obligationenrecht Allgemeiner Teil, 8th ed, Bern 2020; Stiffler, Hans-Kaspar, Schweizerisches Schneesportrecht, 3rd ed., Bern 2002; Toneatti, Michael, Wettkampf in den Bergen, in: Schneuwly, Anne Mirjam/Müller, Rahel (eds.), Bergsportkommentar; Trechsel, Stefan/Fateh-Moghadam, Bijan, in: Trechsel, Stefan/Pieth, Mark, Schweizerisches Strafgesetzbuch, Praxiskommentar, 4th ed, Zurich 2021; Trechsel, Stefan/Noll, Peter/Pieth, Mark, Schweizerisches Strafrecht Allgemeiner Teil I, 7th ed., Zurich 2017; Vuille, Miro, Wandern, in: Schneuwly, Anne Mirjam/Müller, Rahel (eds.), Bergsportkommentar; Walter, Hans Peter, Die Vertrauenshaftung: Unkraut oder Blume im Garten des Rechts?, in: ZSR 120/2001 I, Heft 2, p. 79 ff.

Materials

Alpine School Tödi, General Terms and Conditions (cited GTC), version valid March 2024, Breil/Brigels; Swiss Council for Accident Prevention bfu, brochure "Abseits der Piste - Sicher im Tiefschnee", Bern 2020 (cited bfu, Abseits der Piste); Berg und Tal, General Terms and Conditions (cited GTC), ed. 2022, Root; bergpunkt AG, Die Allgemeinen Geschäftsbedingungen (cited GTC), ed. 2023, Gümligen; Report of the Legal Affairs Committee of the National Council on the Parliamentary Initiative, Framework Act for Commercially Offered Risk Activities and Mountain Guiding of September 15, 2009(BBl 2009 6013 ff.); International Ski Federation (FIS), 10 FIS Rules of Conduct, 2002/2003 (cited FIS Rules of Conduct); Congress Future of Mountain Sports, The "Tirol Declaration" on Best Practice in Mountain Sports, adopted by the Congress Future of Mountain Sports, Innsbruck, 2002 (cited FIS Declaration); Swiss Alps, Tirol Declaration). Tirol Declaration); Swiss Alpine Club SAC, Regulations for the compulsory training of SAC tour leaders, version 2006 (cited: Regulations for the compulsory training of SAC tour leaders); Swiss Alpine Club SAC, Swiss Alpine Club SAC difficulty scales per mountain sports discipline, version September 2012 (cited: SAC difficulty scales per mountain sports discipline, version September 2012). SAC difficulty scale and snowshoe touring scale); Swiss Commission for Accident Prevention on Snow Sports Slopes (SKUS), Schneeportanlagen: Richtlinien für Anlage, Betrieb und Unterhalt, Aufl. 2022 (cited SKUS guidelines); SAC section Basel, Touring regulations, edition 2018, Basel; SAC section Bern, Touring regulations, edition 2017, Bern; SAC section Pilatus, Course and Touring regulations, edition 2024, Lucerne; SAC Pilatus section, Code of Conduct for SAC Pilatus participants, 2021 edition, Lucerne; SAC Uto section, "Registration process and information" website (as at March 2024); SAC Weissenstein section, Tour regulations, 2014 edition, Zuchwil.

I. Subject of this article

Patrick Koch 's article "Ski touring and off-piste skiing (Part 1)" is dedicated to the criminal and general public law aspects of snow sports activities outside of secured ski slopes in addition to introductory remarks. This article focuses on the private law issues and builds on the foundations of the article in Part 1.

Snow sports enthusiasts often go on snow sports tours in groups of at least two people. This article deals with the question of how responsibilities are assigned and what consequences this can have in terms of private law. It therefore examines various constellations of persons that are relevant in practice. For each constellation, the first step is to classify the legal relationships between the parties involved and thus to identify possible bases for liability. In the second step, the duties of care of the persons involved are set out with regard to the identified bases of liability.

This article is therefore essentially divided into specific scenarios and personal constellations. The starting point is the personal responsibility of snow sports enthusiasts, as it is generally assumed that every person is responsible for themselves, especially in mountain sports(Lustenberger, p. 116; see also Tirol Declaration, in particular Art. 1 "Personal responsibility"). Accordingly, the liability of another person in the event of an accident only comes into question if a specific liability standard is applicable to the specific case. In the case of an accident resulting in damage, the judge differentiates between the scope of care of the injuring party and the injured party(Mathys, p. 653; Lustenberger, p. 117). The first constellation of persons in which liability of other persons comes into question concerns the situation in which a professional manager is involved. If you think of snow sports tours, this scenario is probably the most important: if you don't want to take on the responsibility of organizing and running a snow sports tour alone, there is a wide range of tours available. Mountain guides and other professional guides have specific training and part of their job is to relieve guests of some of their own responsibility.

Secondly, the situation in which a snow sports tour is "led" by a non-professional guide is analyzed. Alongside the first scenario, this is probably the most common in practice, as many tours are run as part of voluntary club activities or privately among friends, relatives and acquaintances. In the second case constellation, a distinction is also made from the situation in which no leader can be identified. In practice, these first two or three scenarios are the most important in connection with snow sports tours, which is also reflected in case law. The focus is therefore on them.

Various other constellations are then examined, although these are less significant in practice - at least in relation to snow sports tours in open terrain. Thirdly, the liability of ski touring race organizers towards athletes on the one hand and towards spectators on the other is considered. This article then looks at the liability of the association towards its members and the liability of mountain railway companies towards snow sports tourers. Finally, the liability of snow sports enthusiasts towards third parties, such as snow sports enthusiasts from other groups or piste users, and the liability of third parties towards snow sports enthusiasts are briefly examined.

II Private law

A. Personal responsibility of the tour participants

The starting point for liability issues under private law in mountain sports and therefore also for snow sports tours is the personal responsibility of snow sports enthusiasts. The Federal Supreme Court has mentioned several times in the past that risks inherent in snow sports are to be borne by the person who decides to practice snow sports (e.g. Federal Supreme Court judgment 4C.224/2003, E.2.3 of December 23, 2003, BGE 111 IV 15, 16, E. 2; Federal Supreme Court judgment 4A_612/2010, E. 2.3. of February 14, 2011; Müller, Haftungsfragen, para. 32). The Federal Supreme Court has not yet deviated from this principle (BGer judgment 4A_206/2014 of September 18, 2014 E. 3.3). What applies to the practice of snow sports on ski slopes must apply all the more to snow sports activities outside of marked ski slopes. In this respect, personal responsibility in open terrain is even more important (BGE 115 IV 189, 199, E. 5d. See also BGE 117 IV 415, 415 f., E. 5a.; Müller, Haftungsfragen, para. 32).

The limit of personal responsibility lies where snow sports enthusiasts are unable to recognize dangers (in good time) even if they pay due attention. In these cases, the dangers must be secured or the snow sports enthusiasts must at least be warned of them(Friedli, p. 194). It is therefore a matter of delimiting the risk spheres of the persons involved in an accident(Müller, Haftungsfragen, para. 31). In every case of damage, the judge must determine and delimit the scope of care of the injuring party and the injured party(Mathys, Eigenverantwortlichkeit, p. 653). Any damage relevant under liability law as a result of an accident can only be passed on to third parties if and to the extent that there is no personal injury(Müller, Haftungsfragen, para. 31). A concretization and examination must therefore be carried out on a case-by-case basis. Liability-excluding or liability-limiting personal injury must therefore be addressed below for all relevant liability constellations insofar as there are specific findings in this regard.

Tour participants must always critically assess their own suitability for a tour. In case of doubt, they should contact the person who has advertised the tour (be it a professional or non-professional guide) to clarify their suitability. This obligation, the remaining residual risk and personal responsibility are often explicitly stated in the GTC of mountain guide schools (e.g. GTC of Berg und Tal, points "Participation requirements" and "Personal responsibility and risk"; as well as GTC of Bergpunkt, points "Conditions of participation" and "Risks in the mountains"; GTC of Alpinschule Tödi, points "Participation requirements" and "Liability") and sometimes in (tour) regulations or on relevant websites of the SAC sections (e.g. Art. 13 of the tour regulations of the SAC Bern section, whereby tour leaders are also made responsible in some cases by imposing on them the right and obligation to clarify suitability and the obligation to exclude registered persons if they are not suitable; website of the SAC Uto section, where it is expressly mentioned "Only register for the tour if you meet these requirements"; Art. 18 of the course and tour regulations of the SAC Pilatus section, according to which every section member is entitled to participate in cures or tours "provided they are up to the requirements" as well as other rules regarding the behavior of participants but also the duties of tour leaders, see also the code of conduct for participants in tours of the SAC Pilatus section, as well as Art. 2 of the tour regulations of the SAC Weissenstein section). In this respect, the relevant documents can be understood as a clarification of personal responsibility in the area of mountain sports (see also Müller, Bergsportkommentar Rz. 40-42; Lustenberger and the Tirol Declaration, in particular Art. 1 "Personal responsibility" with the following maxim: "Mountaineers and climbers practice their sport in situations with a risk of accidents in which external assistance may be limited. Being aware of this fact, they carry out this activity on their own responsibility and are responsible for their own safety. Each individual should act in such a way that they do not endanger people or nature in their surroundings", whereby the declaration applies to all mountaineers, including snow sports enthusiasts).

B. Liability of professional managers towards guests

1. bases of liability

In addition to mountain guides, snow sports instructors and hiking guides can also be considered professional guides in connection with snow sports tours (see Koch, para. 1 ff. on the definitions).

a. Contractual liability

In the relationship between professional managers and their guests, contractual liability comes into question in the first instance. More specifically, a contract-like relationship within the meaning of Art. 394 ff. OR(Müller, Haftungsfragen, para. 295; Anthamatten, p. 90 f.; BK OR-Koller, Art. 363 N 233; Müller, Risikoaktivitätengesetzgebung, Sicherheit & Recht, p. 97; Müller, Risikoaktivitätengesetzgebung, HAVE, p. 202; Nef, p. 141; Nosetti, para. 207). In this context, the professional manager regularly has a guarantor duty arising from the contract, because in this contractual relationship the prevention of dangers forms an essential part of the contract (BGer judgment 6S.550/2000 of September 27, 2000, E. 3c; Anthamatten, p. 61 and 97 f.).

As an agent, the professional guide owes the guest a duty of care and loyalty. If the guest is harmed by careless or unfaithful performance of the contract, the professional guide may be liable to pay compensation(Müller, Haftungsfragen, para. 295; BSK OR I-Oser/Weber, Art. 398 N 24 ff.; BGE 127 III 357, 359 E. 1b; BGE 119 II 456, E.2). However, the contractually owed service is not the achievement of a certain summit, but rather the "alpinistically flawless guidance on a certain tour, as far as this is possible under the given circumstances, with the best possible avoidance of all dangers for the guest"(Müller, Haftungsfragen, para. 295 with reference to Portner, p. 27).

b. Non-contractual liability

In principle, due to the concurrence of claims, non-contractual liability pursuant to Art. 41 para. 1 CO may also be considered in addition to a contractual basis for a claim (cf. OR (see BGE 130 III 571, E. 4; 126 III 113, E. 2a = Pra. 89 (2000) No. 185; BGE 120 II 58, E. 3a; Müller, Haftungsfragen, para. 296; Nosetti, para. 490 with further references regarding the providers, e.g. mountain schools, but also for the manager per se in para. 495). Since the legal position of guests is better in the case of contractual liability than in the case of non-contractual fault-based liability, injured guests will regularly invoke contractual liability in practice(Nosetti, para. 497). The better legal position is particularly evident in relation to two points:

Firstly, with regard to the burden of proof for fault, which is assumed in the context of contractual liability pursuant to Art. 97 para. 1 CO(Nosetti, para. 493 as well as paras. 233, 245 and 397) - in the case of non-contractual liability pursuant to Art. 41 para. 1 CO, however, the injured party bears the burden of proof for fault (Nosetti, para. 493; BGer 4A_22/2008 of April 10 , 2008, E. 3; BGE 113 II 246 ff ., E. 3). As the question of fault primarily arises in connection with claims for compensation (under civil law) in the event of accidents during snow sports tours, this difference is of great practical importance. Due to the presumption in the context of contractual liability, it is up to the guide to prove exoneration, i.e. to prove that they exercised the necessary care. In practice, the following measures, for example, have proven helpful in securing evidence:

• Information on the requirements and particular dangers of the specific snow sports tour in the tour description,
• Written confirmation from the guests that they are sufficiently fit to carry out the booked tour (if applicable, with details of reference tours),
• For more demanding tours, which require a certain amount of experience, it is advisable to book an easier tour with the same provider in advance or to provide written proof that the requirement profile is appropriate and recommended,
• Joint testing of the material,
• If applicable, written notes on (special) precautions taken,
• If necessary, telephone information from persons on site and note down the names of the persons providing the information.

Secondly, the better legal position in the presence of a contractual legal relationship is reflected in the limitation periods, as claims arising from the contractual liability of a provider of snow sports tours pursuant to Art. 127 i.V.m. Art. 130 para. 1 OR are only time-barred after ten years from the due date, while claims arising from fault-based liability pursuant to Art. 41 para. 1 CO are already time-barred three years after knowledge of the damage and the person liable to pay compensation (see Art. 60 para. 1 and para. 1bis CO; for the earlier limitation period of one year: BGE 137 III 16 ff, 19, E. 2.2; BGE 132 III 61 ff, 64, E. 6.4.2; BGE 129 III 503 ff, 505 f., E. 3.3 and 3.4; Nosetti, para. 492-494; in the present context, it should also be noted that Art. 60 para. 2, according to which the limitation period for civil law claims for compensation expires at the earliest when the limitation period for prosecution under criminal law expires or at the earliest three years after the judgment has been delivered, provided that the person liable for compensation has committed a criminal offense through their harmful conduct).

c. Liability under the Package Travel Act

In certain cases, the Package Travel Act (PTA) is also applicable to professionally offered snow sports tours. The liability provisions of the PRG therefore also come into question, albeit only in exceptional cases, as the Package Travel Act only applies if the requirements of Art. 1 Para. 1 PRG are fulfilled. Accordingly, a package tour is defined as the prearranged combination of at least two of the following services: Transportation, accommodation, other tourist services that are not ancillary to transportation or accommodation and constitute a significant part of the overall service. This offer must last longer than 24 hours or include an overnight stay and be offered at a total price.

The requirements are likely to be met for offers of multi-day guided snow sports tours. However, the specific basis of liability must be taken into account: the organizer (e.g. mountain school) is liable to the guests for the proper performance of the contract. Art. 15 PRG then gives the organizer some generous possibilities for exoneration: according to Art. 15 para. 1 lit. c PRG for all events that are unforeseeable or - even during the trip - cannot be averted (see also BGE 145 III 409 = Pra 2019, No. 134, E.5.5, BSK OR I-Roberto, Art. 14/15 PRG, N 5). Similarly, liability for breach of contract does not apply if it is due to negligence on the part of the guest (as a consumer) or to unforeseeable or unavoidable negligence on the part of third parties (Art. 15 para. 1 lit. a-b PRG; BSK OR I-Roberto, Art. 14/15 PRG N 6).

2. duties of care in particular

For all of the above-mentioned bases of liability, a breach of the duty of care by the professional manager is a prerequisite for being liable to pay compensation. The degree of due diligence to be applied (standard of due diligence) is basically the same, which is why the explanations on due diligence are relevant for all the bases of liability mentioned(Müller, Haftungsfragen, para. 300). In practice, civil law claims are generally asserted in the context of criminal proceedings, if at all. The criminal judge then also assesses the claims for damages and compensation brought by the injured person(s) by way of adhesion. As a rule, culpability relevant under criminal law - in the case of snow sports tours typically in the context of negligent bodily injury (Art. 125 StGB) or negligent homicide (Art. 117 StGB, cf. on the criminal law aspects Koch, esp. para. 50 ff.) - also constitutes a breach of duty of care relevant under civil law(Müller, Haftungsfragen, para. 300). The same also applies in the opposite sense(Müller, Haftungsfragen, para. 300), although the civil judge, pursuant to Art. 53 OR is not bound by the findings of the criminal court and although criminal law is based on individual culpability, whereas the prevailing view in doctrine and case law is that an objective standard of culpability is applicable in the assessment under civil law(Schwenzer, para. 22.18 ff., esp. 22.20 with further references). In criminal law, it is a matter of individual culpability, whereas in civil law it is a matter of balancing conflicting interests(Schwenzer, para. 22.20).

The standard of care is based on objective criteria, taking into account the specific circumstances of the individual case(Krauskopf, Art. 398 OR N 2). Consequently, the standard of care required is that which a conscientious agent with the contractually required qualifications would exercise in the same situation, taking into account the specific content of the contract when carrying out the business entrusted to him. Failure to exercise the required care constitutes a breach of contract, although the specific circumstances of the individual case must be taken into account (BGE 133 III 124; BGE 115 II 64, BGer judgment 4A_436/2011 of 2.4.2012, E. 3.1; BSK OR I-Oser/Weber, Art. 398 N 24). These general principles are also applicable to the context of snow sports tours in the present case, whereby, according to the view expressed here, personal responsibility and the risk inherent in the specific tour must be taken into account as part of the overall assessment.

As a rule, a professional guide is used so that someone with more experience than the person commissioning the tour takes responsibility for planning and carrying out the snow sports tour(Lustenberger, p. 128). The guest thus transfers part of the personal responsibility to the professional guide(Müller, Haftungsfragen, para. 299). However, the entire risk cannot be delegated to a manager. The risk therefore remains shared. A professional guide cannot (even) guarantee a safe "risk-free" snow sports tour; the residual risk inherent in mountain sports remains and cannot be transferred to a guide(Müller, Haftungsfragen, para. 299 and para. 304; Lustenberger, p. 129 f.).

a. Due diligence obligations in accordance with the Risk Activities Act

The Federal Act on Mountain Guiding and the Offering of Other Risk Activities of December 17, 2010(RiskG), which applies to commercially offered risk activities, including in mountainous or rocky terrain, is generally applicable to professional guiding activities in the context of snow sports tours (see Art. 1 RiskG). The RiskG contains regulations that specify the duties of care of professional guides by way of example, whereby the specific duties must always be examined as part of an assessment of the overall circumstances (this also includes individual contractual agreements, experience and previous knowledge, any previous snow sports tours for training purposes, possibly also with the same guide, information provided by the guide, information provided such as reference tours of the guest, etc.).See also BBl 2009 6013, p. 6031, according to which the measures must be appropriate to the given circumstances; Müller, Haftungsfragen, para. 302). Professional guides who offer snow sports tours that are subject to the RiskG must take the measures that are necessary according to experience, possible according to the state of the art and appropriate according to the given circumstances so that the lives and health of guests are not endangered (Art. 2 para. 1 RiskG). In addition, the measures must be appropriate in the given circumstances(BBl 2009 6013, p. 6031).

The duties of care expressly prescribed by law include, in particular, informing guests about special dangers associated with the specific snow sports activity, checking the (sufficient) performance of guests, the weather and snow conditions and the absence of defects in equipment and installations (Art. 2 para. 2 lit. a-d RiskG). Consequently, the RiskG describes and specifies the contractually owed duties of care of professional managers, which have already been developed by case law(BBl 2009 6013, p. 6031; BGE 129 IV 119, BGE 118 IV 130). As the activities under the RiskG have an increased risk potential, the requirements for the duty of care are relativized within the meaning of Art. 2 para. 1 RiskG. The personal responsibility of the guests must therefore also be taken into account when assessing the overall circumstances(Lustenberger, p. 129).

The increased risk on snow sports tours is accompanied by a higher degree of care on the part of the guide, while at the same time the obligation of the guests to prepare themselves according to the circumstances and to counter the special objective and subjective dangers with appropriate attention and behavioral adaptation increases (see also Lustenberger, p. 129). (Gross) self-culpability can exclude or at least reduce the liability of managers. (Gross) self-culpability exists, for example, if guests provide false information about reference tours, disregard the guide's instructions (e.g. observance of relief distances, driving within a certain corridor, etc.), conceal health problems or actual fitness, bring incomplete or inadequate equipment and clothing, behave incorrectly in misjudgment of their own ability and the prevailing conditions or if they do not read the invitation to tender and the specific requirements (cf. with further explanations Lustenberger, p. 130).

b. In particular: Measures for the preparation of a snow sports tour

The starting point for the specification of the duty of care of professional guides is Art. 2 para. 1 RiskG, which contains a relative assessment based on the increased risk of snow sports tours (see BBl 2009 6013, p. 6031; Müller, Haftungsfragen, para. 304). A concrete list of possible measures for the protection and safety of guests is not to be regarded as exhaustive and can only be provided as examples. The measures must be examined on a case-by-case basis for suitability, necessity, feasibility and appropriateness; they can be divided into preparatory measures and measures during the actual snow sports tour (see Müller, Haftungsfragen, para. 305 and Nosetti, para. 277 ff.).

The following measures in particular - by way of example - can be considered as part of the preparation:

• Determination and planning of the route, recording of detours and alternative options, any last-minute route adjustments and, if necessary, cancellation of the entire tour;
• Consideration of guests' fitness and technical ability when planning and choosing routes;
• Adjustment of the number of guests carried with a view to the requirements of the tour (Art. 2 para. 2 lit. f RiskG);
• Check the weather, meteorological, snow and route conditions, map material (physical or digital, offline maps are available on various tour portals, e.g. also on the SAC tour portal), consultation with local experts if necessary (Art. 2 Para. 2 lit. d RiskG);
• Checking attendance at the assembly point (especially if the assembly point is already in the mountains);
• Checking material and equipment, especially the avalanche transceiver (LVS);
• Transparent information and clarification before registration/start of the tour, so that the guest has a free choice regarding the start of the tour (Art. 2 para. 1 lit. a RiskG);

Of central importance for snow sports tours are, on the one hand, the assessment of the weather and weather conditions and, on the other hand, the (prior) assessment of the snow conditions and the avalanche risk. Consultation of the latest avalanche bulletin was already deemed essential by the Federal Supreme Court in 1972 in BGE 98 IV 168 ff. This applies all the more in the case of corresponding weather conditions such as snowfall, strong winds (wind drifts), high temperatures, etc. (see BGE 98 IV 168, E. 4d). In judgment 6B_275/2015 of 22 June 2016 (avalanche accident during a variant trip in Verbier, Roc d'Orizval), E. 3.1, the Federal Supreme Court states that in the event of an avalanche accident, the first question is the foreseeability of the avalanche risk or the probability of an avalanche, whereby the question must be answered from the perspective of the guide at the time of the accident. It further states that the mountain guide must, for example, analyze the local snow and weather conditions, examine the snow cover, assess the slopes directly on site and then carry out the individual risk assessment (BGer judgment 6B_275/2015 of 22 June 2016, E. 3.2). With regard to a lege artis avalanche risk assessment, the methodology based on the assessment system created by Werner Munter according to the 3x3 (filter) method has become established. The "core training team for avalanche prevention in snow sports" (KAT) has published a leaflet on this, which is regularly revised and adapted to the state of research and practice (see in detail on avalanche risk assessment lege artis, Koch, para. 63 ff.).

The equipment must be regularly maintained and prepared in advance using equipment lists so that not all items of equipment need to be checked on site. It should also be mentioned at this point that the guests themselves must be familiar with the equipment and its operation and use, unless the specific tour expressly includes a corresponding training element. However, the guide must at least check and inspect their own equipment (see also Müller, Haftungfragen in FN 515 and Feser/Lustenberger, 6 in connection with Art. 2 para. 2 lit. c RiskG). In BGE 83 IV 9, E. 1a. (accident in the Clariden area), the Federal Supreme Court stated that it is the duty of the guide to "carefully check before starting the tour whether the planned mountain or ski tour should be carried out at all in the given weather and route conditions, the physical fitness and technical ability of the person to be guided". The guide must also make sure that he/she and his/her partner are sufficiently equipped. The guide must ensure that the clothing is appropriate for the specific conditions. This applies all the more if the tour is being undertaken in bad weather. The inspection must also cover all equipment: this must be such that "the correct execution of the tour is properly guaranteed even in unfavorable circumstances and that dangers that must be anticipated can be effectively countered. Experience has shown that the safety and performance of the guide and the person being guided depend to a not insignificant extent on the equipment."

c. In particular: Measures during a snow sports tour

In addition to the measures taken in preparation for a snow sports tour, measures should also be taken during the tour:

• Execution of the guiding activity lege artis, namely correct instructions, choice of route, assistance, professional use of equipment, etc;
• Consideration for the individual condition of the guests;
• Reaction to alpine risks on site based on observation of the surroundings;
• Regular inventory control of guests (see BGer judgment 6B_92/2009 of June 18, 2009);
• Depending on the conditions, abort or adapt the tour (route change);
• The avalanche situation must also be constantly monitored during the tour and any measures taken must be reviewed if necessary (see above under preparatory measures and Koch, points 68 and 69 on on-site evaluation and point 70 on individual slope assessment).

If guests repeatedly disobey the manager's instructions despite warnings, unilateral immediate termination of the contract may be considered. However, separation from the guests is only permissible if the guest is not exposed to any particular danger as a result (see Müller, Haftungsfragen, para. 305).

According to case law, an important element of professional guiding is the consideration of the individual circumstances of the guests with regard to their abilities and physical condition (see BGE 83 IV 9, 15, E. 1b. [accident in the Clariden area]). The Federal Supreme Court held that it goes without saying that the guide must ensure the safety of the person entrusted to them (guest) from the beginning to the end of the tour, especially if the guest is not very familiar with the mountains. In doing so, the "inexperience and lack of practice in mountaineering and skiing must be given appropriate consideration, their correspondingly greater energy consumption and increased fatigue must be taken into account and they must not be overstrained either on the ascent or descent." Special care should be taken if difficulties arise during the tour.

Another key element of (professional) leadership is an appropriate response to alpine risks on site based on observations of the surroundings. This means that the terrain, rockfall and icefall must be constantly monitored and assessed and appropriate and suitable instructions issued. In the case of snow sports tours in particular, guidance lege artis requires the observation of conspicuous signals (e.g. noises due to layers of snow breaking under the skis) and the issuing of instructions, even if only for traversing individual slopes. In BGE 118 IV 130, the Federal Supreme Court ruled on the case of a mountain guide who was leading a group of seven guests up the Mot San Lorenzo. The group was caught in an avalanche and six of the seven guests died. The Federal Supreme Court did not consider the fact that the mountain guide led the group up a slope with certain risk factors (including a steepness of approx. 38 degrees) to be a breach of duty of care per se (BGE 118 IV 130, 140, E. 5b and in particular E. 4a). However, the Federal Supreme Court saw a breach of duty of care in the fact that no relief distances were ordered: "Although he was basically allowed to climb the steep slope with his group, he should have maintained relief or safety distances of at least 10 meters between the individual group members.., without him ordering relief distances [...]", because the mountain guide had been able to recognize from the avalanche bulletin or he could and should have foreseen that an avalanche could be triggered by an ascent without distances (BGE 118 IV 130, 140, E. 5c).

It should be noted at this point that the assessment of due diligence obligations in the context of legal proceedings is often based on expert opinions. The assessment of whether measures were appropriate due to the specific circumstances, which measures were appropriate and whether any measures taken were correct is a question that can generally only be answered by experts with specialist knowledge. The Expert Expert Group for Mountain Accidents (FEB) supports the judiciary and insurance companies in the assessment of mountain accidents from a technical alpine point of view by providing suitable experts (cf. on expert opinions in mountain accidents Christians).

C. Liability of non-professional guides towards tour participants

1. bases of liability

Non-professional guides are primarily tour leaders from clubs (ski clubs, Swiss Alpine Club SAC, German Alpine Association DAV, SAC sections, which are independent legal entities, Austrian Alpine Association ÖAV), but also all other persons who perform management tasks in the context of snow sports tours.

Mountain sports clubs such as the SAC and the SAC sections, the DAV or the ÖAV regularly offer their members (also) snow sports tours. Guides trained by the SAC are called in to lead the tours. In the case of demanding tours, the SAC also commissions mountain guides to carry out the corresponding tour (cf. mutatis mutandis above, para. 9 ff., as well as Müller, Haftungsfragen, 294 ff, in particular also Nosetti).

a. Delimitation of contractual and non-contractual relationship

Nosetti distinguishes between providers and guides: "guides" can be considered to be the commercially active persons employed by the provider who guide and accompany various guests or groups of guests in return for remuneration. Guides assume the technical implementation, the actual management task and bear the main responsibility during the implementation(Nosetti, para. 144 and BGE 125 V 312, E. 3b/aa). "Providers" are defined as persons who enter into a contractual relationship with the participants. As a rule, the person who primarily derives the economic benefit from the offer is deemed to be the provider. Therefore, commercial providers are generally meant, even if the services are only provided as a sideline(Nosetti, para. 128). The distinction influences the allocation of the respective rights and obligations, which can be relevant in the event of an accident during a tour offered: to determine the consequences of liability, it is necessary to examine "to whose sphere the act or omission causing the damage can be attributed"(Nosetti, para. 146).

For both definitions, it is crucial that the activity is carried out on a commercial basis. This criterion is not met by tour guides, mountain sports clubs or "de facto guides". When examining whether the club or its responsible persons or the tour leader is liable for damage caused on a tour offered by a mountain sports club, the distinction can be made analogously. The club is contractually liable for the tour being listed in the club's internal tour bulletin in accordance with the statutes and regulations - on the other hand, the tour leaders engaged by the club are non-contractually liable for the careful execution of the specific tour advertised. In this case, a contractual relationship exists between the association and the appointed tour guides. However, the relationship between tour participants and tour guides is non-contractual.

b. Tour leaders in clubs

In addition to tours with friends, tours organized by clubs - such as the SAC, the DAV, ski clubs, etc. - for their members are probably the most common form of non-professionally guided tours. Tour leaders from mountain sports associations may lead tours within the association for which they have been trained.

The SAC has drawn up training and further training regulations(Regulations on compulsory training and further training), which specify, among other things, the level of difficulty above which special training is required. In the context of snow sports tours, ski and snowboard tours and snowshoe tours are particularly relevant. For ski tours, training is required from difficulty level WS (not very difficult) according to the SAC difficulty scale for ski tours. For snowshoe tours, special training is required from difficulty level WT5 (alpine snowshoe tours according to the SAC snowshoe tour scale). Training is expressly recommended for other tours. There is also an obligation to undergo further training so that tour guides are up to date with the latest training standards. Aptitude tests are now carried out at the start of the respective training courses.

If tour leaders offer snow sports tours within their section(s), they first report the planned tours to the responsible person(s) (tour committee or at least tour leader) within the section, who collect and review the tour suggestions before listing the tours in the annual program. Club members can then register for the SAC tours advertised by their respective section according to their interests and abilities. Sometimes members also register for advertised SAC tours of other sections. In this case, the principle that members of their own section have priority usually applies. Most sections have more or less detailed tour regulations, information sheets or similar, which encourage members to check their suitability (skills, experience, equipment, etc.) for the tours independently and critically (cf. on personal responsibility above, para. 6 ff.). This reminds the club members of their personal responsibility and the tour leaders are generally also given the opportunity to reject a registration or a club member for a particular tour if there are concrete doubts about the abilities of the club member.

This process illustrates that tour leaders act as assistants to their section. There is a contractual relationship between the club member who registers for a tour advertised by the club and the club(Müller, Haftungsfragen, para. 314). The association is therefore liable for the actions of its auxiliary persons in accordance with Art. 101 OR. The relationship between the association and the tour leaders is also of a contractual nature. If a tour leader is also an organ of the association, this legal relationship is also contractual(Müller, Haftungsfragen, para. 314; BK ZGB-Riemer, Art. 69 N 124). In contrast, there is no direct contractual connection between the tour leaders and the club members participating in the tour(Müller, Haftungsfragen, para. 315 with reference to Röckrath, who comes to the same conclusion for German law; see also Christen, p. 268 ff., who assumes an innominate contract similar to an order and derives a guarantor position from this). This view is also reflected in the fact that in the case of club tours there is generally not as great a difference in knowledge and performance as between professional guides and their guests(Lustenberger, p. 130).

As the participating club members on club tours are often also very experienced snow sports enthusiasts and assume a certain degree of responsibility, for example by leading rope teams themselves on glacier passages or climbing passages as part of ski tours, the personal responsibility of the participating club members is generally to be weighted considerably higher than on a commercially guided tour(Lustenberger, p. 130). Finally, tour leaders do not derive any financial or other economic benefit from their guiding activities - this must also be taken into account when assessing the personal responsibility of tour participants. All of these elements show that club tours are not about the "classic" commissioning of a person who is significantly better qualified in terms of knowledge and experience, and therefore lack the contractual intention to be bound. According to the view expressed here, the only possible basis for liability for claims by an injured party on a club tour against a non-professional guide is therefore non-contractual liability for fault within the meaning of Art. 41 para. 1 OR comes into question.

c. Differentiation of the de facto leadership from the hazard community

If snow sports tours are undertaken without a professional being commissioned to lead them, the question arises as to whether this is a "de facto" leadership or a dangerous community.

De facto leadership is assumed when people who, due to their alpine experience and mountaineering skills, encourage less experienced people to go into the mountains, make the necessary decisions and thus actually, i.e. de facto, assume the leadership role. The decisive characteristic is that the "de facto guides" give up their freedom of decision and entrust the care for their safety to the de facto guide, so that a certain relationship of subordination arises (see also the definitions of the term in Koch, para. 23 ff. with reference to BGE 83 IV 9, E.1; BGE 100 IV 210, E.2b; Stiffler, para. 750 f., p. 182; Praxiskommentar StGB-Trechsel/Fateh-Moghadam, Art. 11 N 13; Kocholl, p. 145 f. and 150; Müller, Haftungsfragen, para. 244 f., p.86; Gerber, p. 135 f. and 146 f.). The Federal Supreme Court described de facto leadership in such a way that an experienced alpinist who undertakes a ski tour in the high mountains and over glacier terrain and induces a person who is unaccustomed to the mountains and inexperienced in skiing to go along is considered the leader of the party and is responsible for the weaker partner. He is therefore comparable to a person who creates a dangerous situation and is therefore "obliged to take all reasonable precautions and protective measures to prevent an accident" (BGE 83 IV 9, E.1). And it stated: "Under such circumstances, his responsibility is not inferior to that incumbent on the professional tour guide on mountain and ski tours for the safety of the person entrusted to him and generally not merely morally but legally obligates the guide" (BGE 83 IV 9, E.1).

In contrast, a community of danger exists when people of roughly equal strength and experience join together to form a group in order to undertake the corresponding snow sports tour together. In these constellations, there is typically no significant advantage in terms of knowledge or experience that would imply a de facto leading role, which is why each member of the group must in principle assess the dangers equally and on their own responsibility. In such cases, no group member is therefore responsible as a de facto leader under both criminal and civil law (see Koch, para. 25, as well as the appeal decision of the Cantonal Court of Graubünden BK 07 27 of August 16, 2007, E. 4b; Stiffler, para. 751; Gerber, pp. 110 f. and 137 f.; Müller, Haftungsfragen, para. 211 ff., p.74).

The distinction between de facto leadership and "mere" community of danger is difficult in individual cases (see Müller, Haftungsfragen, para. 244 and an interpretation and analysis in para. 237 ff.). According to the case law of the Federal Supreme Court, a relationship of care within the meaning of Art. 127 StGB, i.e. a position of guarantor (BGE 108 IV 14, E. 2a). According to the view expressed here, de facto leadership, which represents a legal relationship similar to that between a professional leader and their guest, should generally only be assumed with caution (cf. in detail the convincing derivation in Müller, Haftungsfragen, para. 235 ff.).

d. Qualification of legal relationships and specific bases of liability

If an accident occurs as part of a group snow sports tour, the following bases for liability can be discussed: Liability arising from the legal relationship of a simple partnership can in principle only be considered if at least one person has a legal intention to be bound (BGer judgment 4A_27/2008 of May 9, 2008, E. 2.3; 4C.24/2000 of March 28, 2000, E. 3d; BGE 124 III 363, E. II/2a; 123 III 35, E. 2b). However, a legal intention to be bound can also be expressed implicitly, for example when a person makes overnight reservations or when a clear division of tasks is generally made within the group. Finally, the decisive factor is whether at least one member of the group would not undertake the snow sports tour alone (see Müller, Haftungsfragen, para. 199). If a simple partnership is to be assumed in the specific case, the injured group member as a simple partner is entitled to the provisions of Art. 41 para. 1 CO and Art. 538 para. 2 CO. OR and Art. 538 para. 2 CO are available as alternative bases for liability.

Liability based on a special legal relationship is also conceivable and in many cases, according to the view expressed here, cannot be dismissed out of hand in view of the Federal Supreme Court's description of liability based on trust. Accordingly, liability in breach of trust is a liability arising from aroused and disappointed trust and presupposes that the parties involved have entered into a special legal relationship with each other, which then justifies the application of the duties of protection and disclosure derived from good faith (BGE 130 III 345, E. 2.2; 120 II 331, E.5a). The distinguishing feature is that an "accidental and unintentional collision, as is usually the case with tort liability based on negligence" (BGE 130 III 345, E. 2.2) does not create such a special connection (BGE 130 III 345, E. 2.2; 128 III 324 E. 2.2; BGer Urteil des Bundesgerichts 4C.280/1999 of January 28, 2000, E. 3a, publ. in: SJ 2000 I p. 554 f.; BK-Kramer, para. 141; Walter, p. 97). If snow sports enthusiasts go on a snow sports tour together and organize themselves accordingly within the group, there can hardly be any question of an accidental and unintentional collision. Liability in reliance, which is derived from Art. 2 ZGB is, however, subsidiary to other bases of liability and is in addition to liability in tort under Art. 41 para. 1 OR (see also Müller, Haftungsfragen, para. 207).

Liability as a favor is at least possible in the case of a de facto guided snow sports tour. Favors do not include an obligation to provide a specific promised favor (see, for example, BGE 129 III 181, E.3.1, p. 183). According to the case law of the Federal Supreme Court, persons who provide a service as a favor are liable in tort (BGE 137 III 539, E.5.1; 116 II 695 E. 4). In the case of acts of courtesy, a reduced duty of care must generally be assumed (BGE 137 III 539, E. 5.2) and, according to the Federal Supreme Court, it must be sufficient for the person providing a courtesy "to exercise the same care that he also exercises in his own affairs (so-called customary care or diligentia quam in suis)" (BGE 137 III 539, E.5.2).

According to the view expressed here, the focus is on non-contractual liability within the meaning of Art. 41 OR. As a rule, a snow sports tour is a joint venture. This is the case when several people get involved in a risk, trusting that they will help each other (Praxiskommentar StGB-Trechsel/Fateh-Moghadam, Art. 11 N 13; Trechsel/Noll/Pieth, p. 242). This concept also applies to snow sports tours: several people decide to go on a tour together in the knowledge that they will support each other. A community of risk regularly establishes a guarantor duty and thus a relationship of care within the meaning of Art. 127 StGB between the participants(Müller, Haftungsfragen, para. 212 and 215). According to the Federal Supreme Court, a guarantor position establishes a non-contractual duty of care and, in the event of its culpable breach, a duty to pay damages (BGE 116 II 695, E. 4, with further references). The corresponding basis for liability in the case of a guarantor's duty is therefore Art. 41 CO (see BGE 116 II 695, E. 4, where the Federal Supreme Court expressly states, among other things, that it considers favors that are neither carried out in the exercise of a trade nor for remuneration to be non-contractual acts (with further details).

In the case of a de facto manager, a guarantor position must be assumed. An actual contractual relationship within the meaning of Art. 394 ff. CO is only to be assumed with caution according to the view represented here, namely if there are clear indications that the de facto guide, who is not a professional guide, has nevertheless expressly or impliedly expressed a corresponding intention to be bound - for example, if SAC tour leaders offer and conduct tours as guides privately, i.e. outside the SAC tour program. In such constellations, it should be noted that a fault of assumption, i.e. the assumption of the task of guiding despite the lack of the necessary skills, generally constitutes fault(Honsell, 350; Müller, Haftungsfragen, para. 247). Any gratuitousness must be taken into account in the assessment of damages(Honsell, p. 350). If a corresponding intention to bind has been established, the duties of care within the meaning of Art. 394 ff. CO for the corresponding non-professional manager correspond to the duties of care of a professional manager (see Müller, Haftungsfragen, para. 239).

2. duties of care in particular

As explained above in the context of the duty of care of professional managers (see para. 16 et seq.), two things should be noted in advance: firstly, civil liability claims are generally asserted in the context of criminal proceedings and secondly, culpability relevant under criminal law usually also constitutes a breach of duty of care relevant under civil law (and vice versa). In this respect, reference should also be made in the present context to the comments on criminal law in Koch, paras. 74-76.

In general and in advance, it can be stated that not every lack of care on the part of a group member on a snow sports tour constitutes criminal culpability and therefore also a breach of the duty of care under civil law (see BGE 100 IV 210 E.2a). When a breach of duty of care has occurred cannot be determined in general terms, but must be examined on a case-by-case basis (see para. 53 et seq. below).

Persons who carry out a risk activity privately alone or in a group - and thus at their own risk - as well as tour leaders of mountain sports clubs such as the SAC are not covered by the scope of application of the RiskG(Nosetti, para. 117, BBl 2009 6013, p. 6029; BBl 2007 1497, p. 1512.). The general clause pursuant to Art. 2 para. 1 RiskG is therefore only applicable by analogy to tour guides or (other) persons who do not lead a snow sports tour on a professional basis. In particular, the fact that these guides are not professional guides must be taken into account in an appropriate manner when assessing the overall circumstances of the individual case (see e.g. BGE 100 IV 210, E.2a, for mountaineers, whereby the general statement is also applicable to de facto guides in the context of snow sports tours; BGE 98 IV 168, E.4).

a. Specification of the due diligence obligations

If, for example, a professional guide undertakes a snow sports tour in a private circle, the degree of care to be applied corresponds to the same degree that they must also apply to paid tours (e.g. assessment of the avalanche situation). According to the opinion expressed here, however, this does not apply to the duties that professional guides have towards guests in the context of paid tours (e.g. prior duty to inform or check equipment). The specific knowledge that the professional guide has is therefore (only) taken into account within the scope of the applicable degree of care (see also Müller, Haftungsfragen, para. 246 with further references).

For non-professional (management) persons who have a significant advantage over the other group members in terms of experience and performance, the degree of care that the other group members were entitled to expect of the manager based on the external circumstances is applicable(Kleppe, 150; Müller, Haftungsfragen, para. 247). When assessing the degree of care, the Federal Supreme Court also focuses on what can be expected of the manager based on the external circumstances. In the case BGE 98 IV 168, the non-professional guide had "exceptional mountain and skiing experience acquired and tested in many courses and camps" (E.4a). Such a special qualification corresponds to a "significantly increased duty of care" compared to an ordinary ski tourer. The Federal Supreme Court then emphasized, as did the lower courts, the special position of trust of the guide in the aforementioned case. This position of trust was based on his position as head of the JO of an SAC section for many years. "He was the highest authority for all questions relating to the organization of mountain and ski tours. Thanks to his many years of extensive knowledge and his mountaineering skills, which had also proven themselves in the army, parents and club mates entrusted him with their underage children who were members of the JO. He was also the responsible head of the JO leaders under his command, including those who were not inferior to him in terms of technical and skiing skills. These circumstances, under which he organized and led the tour, obliged him to take every conceivable precaution. His duty of care far exceeded what could be expected of a skier who was merely guiding a club mate or family member. He had to do everything to recognize possible dangers or to avoid unrecognizable dangers as far as possible" (BGE 98 IV 168 E.4a). The Federal Supreme Court also relies on external circumstances in a decision in which it states that it can generally be assumed that "camp and tour leaders who take children into the mountains must meet high standards of due diligence because children are usually not yet able to perceive impending dangers" (BGE 122 IV, E. 3a, p. 303; Benisowitsch, p. 176).

The duties of care of a de facto leader are "significantly increased" compared to an ordinary group member and in particular compared to less experienced group members (BGE 122 IV, E. 3a; 100 IV 210 E.2a, for [de facto] leaders in mountaineering; see also Müller, Haftungsfragen, para. 248 et seq.). The specific duties of care must always be determined on a case-by-case basis (see, for example, the casuistry in Müller, Haftungsfragen, para. 253 et seq. and the case law mentioned above). In one case, for example, the Federal Supreme Court found that the responsibility of a (non-professional) guide who "as an experienced alpinist undertakes a ski tour in the high mountains and over glacier terrain and induces a person who is unaccustomed to the mountains and inexperienced in skiing [...] to go with him" is not inferior to the responsibility of a professional guide for guests entrusted to him (in BGE 83 IV 9, E.1). The fact that this cannot apply generally is then shown in the further casuistry of the Federal Supreme Court, where it differentiated between the specific experience and specific skills of the manager on the one hand and the other group members on the other (see above, in particular BGE 98 IV 168 E.4a; 122 IV, E. 3a; 100 IV 210 E.2a and 2b; and Müller, Haftungsfragen, para. 248 ff.). Generalizing and equating the duties of care of non-professional but de facto managers with those of professional managers would not be appropriate. According to the view expressed here, the specific duties of care must be determined and defined in each individual case; in other words, the duties of care are assessed on a case-by-case basis and cannot depend solely on an allocation to a specific category (guests, participants, risk groups, non-professional manager, de facto manager), but the qualification must be taken into account as part of the overall assessment.

b. General due diligence measures for non-professional managers

General duties of a non-professional guide can be derived from this - also in differentiation and in connection with the duties of the other group members: In general, if in doubt, for example if they do not yet know each other well, the group members should clarify their experience and specific capabilities before embarking on the tour in order to prevent false expectations from being raised or persisting. If one person has more experience, knowledge and ability than the other group members, it is advisable to be transparent with the other group members about their own abilities and their limits. Depending on the experience of the other group members, pertinent information on the requirements of the specific snow sports tour, the material required and, if necessary, the equipment needed (including clothing) may be useful.

For snow sports tours in particular, it is advisable to clarify the weather and avalanche conditions and - depending on the skills and experience of the other group members - to inform them accordingly. If the other group members have a certain amount of experience, it can be assumed that they will make the necessary clarifications themselves. Particularly in the case of a "mere" risk community, all group members are obliged to make the necessary preparations and clarifications independently and to choose their own equipment in accordance with the preparatory clarifications. The group members inform each other about the known dangers and challenges.

During the snow sports tour, all group members, including the guide, must exercise the level of care appropriate to their ability and knowledge. An objective standard applies, i.e. the ability and knowledge of an average person with the same level of performance and experience. For example, every member (not only, but especially people with a "head start" in terms of experience and performance) must be aware of the consequences of choosing a particularly risky descent variant instead of a less risky variant. Likewise, the usual precautionary measures should always be taken with regard to avalanche prevention (use of avalanche transceivers, distance between skiers on exposed slopes, etc.). Snow sports tours should be selected in such a way that they are within the capabilities of the group members. Consequently, this also means that a leader may or must refuse group members if they do not have the necessary skills for the planned snow sports tour.

c. Measures based on the association's internal regulations and directives

In the context of snow sports tours organized by an association such as a ski club or an alpine association (on the question of when a tour is still considered an association tour, see Müller, Haftungsfragen, para. 314 ff.), in addition to the basic obligations mentioned above, the association-specific particularities, in particular internal association regulations, leaflets, training and instructions, any references to private regulations or, under certain circumstances, customs within the association must also be observed.

In the case of SAC snow sports tours, the regulations of the central association must be taken into account, in particular the regulations on training and further education for SAC tour leaders, according to which, for example, training is recommended for all SAC tour leaders and is required from certain levels of difficulty according to SAC scales.

Many SAC sections lay down principles for the section's touring activities in their statutes, regulations, leaflets or in some other way (cf. the examples in the section on personal responsibility). For example, most statutes and tour regulations stipulate how a snow sports tour is to be included in the annual program, which body is responsible for checking and approving the annual program (e.g. SAC Weissenstein section tour regulations, Art. 1, SAC Bern tour regulations, Art. 2 and Art. 3, SAC Pilatus section tour regulations, Art. 4), that participants may only register for tours if they have the necessary skills (e.g. Atr. 2 SAC Weissenstein Section Touring Regulations; Art. 20 SAC Pilatus Section Touring Regulations; Art. 7 SAC Basel Section Touring Regulations) or how tours are to be adapted (e.g. Art. 3 SAC Weissenstein Section Touring Regulations; Art. 21 SAC Bern Touring Regulations; Art. 25 SAC Pilatus Section Touring Regulations; Art. 14 SAC Basel Section Touring Regulations) as well as the duties of tour leaders on the one hand and the duties of participants on the other (e.g. Art. 2 and 3 SAC Weissenstein Section Touring Regulations, Art. 13 ff. SAC Bern Touring Regulations; Art. 8 ff. and 20 ff. SAC Pilatus Section Touring Regulations; Art. 7 ff. SAC Basel Section Touring Regulations).

These rules can also specify the duty of care of non-professional tour leaders of the SAC or the respective association and must therefore be taken into account as part of an overall assessment in the event of an accident in connection with an association tour.

D. Liability of organizers of ski touring races towards spectators and athletes

As explained at the beginning, snow sports tourers generally undertake their tours at their own risk and liability on the part of other persons only comes into consideration if they are a guarantor. In the case of a ski touring race, the organizer organizes the race, sometimes specifies the requirements and the route, carries out any equipment checks and usually also maintains checkpoints. In ski touring races, athletes deliberately carry as little equipment as possible in order to save weight and thus achieve faster times. They can generally rely on the race organizer not to expose them to any dangers that are foreseeable with proper attention. In addition to the larger, competitive races (e.g. the legendary Patrouille des Glaciers and other races), there are also a large number and variety of smaller regional and local ski touring races, which are primarily aimed at amateur athletes (e.g. Rennen-Ost with around ten different races in eastern Switzerland, or various races in Valais, e.g. Intégrale du Rogneux). They often offer a good and popular opportunity for ski tourers, for whom ski touring is primarily a sporting challenge, to pursue their hobby and compete with like-minded people. They can focus their preparation on the sporting component and generally do not have to worry about the specific avalanche situation and other technical preparations. In this respect, they hand over part of their preparation to the race organizer. In the following, we will therefore briefly examine what needs to be considered with regard to the liability of ski touring race organizers. Toneatti deals with the entire topic in detail.

1. bases of liability

In the case of ski touring races, which are usually held at least partially outside of the secured piste (e.g. the Skimara Kandersteg or the Patrouille des Glaciers), contractual liability is primarily considered both towards spectators and athletes:

a. Spectators

When organizing a competition, the organizer and the spectators conclude an innominate contract, a sui generis contract or a mixed contract, depending on the nature of the services (see on the whole, Arter/Gut, p. 79 f.). The main obligation of the contract is to enable the spectator to attend the sporting event(Arter/Gut, p. 79 f.; Toneatti, para. 73, 90-92.).

b. Athletes

According to prevailing doctrine, the contract between the organizer and the participant (athlete) is a sui generis contract if the athletes do not receive any fixed compensation for participating in the competition(Arter/Gut, Verantwortlichkeit des Veranstalters von Sportanlässen, p. 43f.). At present, this also applies to most athletes in ski mountaineering.

If the contract includes a fixed compensation of the athletes by the organizer without consideration of the result, it is a contract for work performance. An individual employment contract within the meaning of Art. 319 ff. CO can only be assumed if the organizer, as the superior party, employs athletes for a specific or indefinite period in return for payment(Arter/Gut, p. 42.) This regularly applies to Swiss competitive team sports (cf. in particular the "Bosman ruling" of the European Court of Justice(C-415/93, ECR 1995, I-4921 ff. N 90). In the context of ski touring races, this constellation has - so far - hardly come into question. In other cases, there is no employment contract and contract law provisions apply(Arter/Gut, p. 43).

This is to be distinguished from the case in which the organizer does not conclude the contract with the individual athletes, but with the club whose team is participating in the competition(Arter/Gut, p. 45). In such cases, claims of the individual athletes against the organizer are based on non-contractual liability(Arter/Gut, p. 45). A comparable situation exists when athletes are members of an association and this association commissions individual organizers to hold sports events with its members. Although there is no contract between athletes and organizers in this constellation either, it can be assumed that the contract between the association and the organizer has a protective effect in favour of the athletes. As a result, athletes are included in the contractual duties of care and diligence arising from the event contract, as in the case of a direct contractual relationship(Arter/Gut, p. 46 and 47). This currently applies to the situation of the ski touring athletes in the Swiss national team.

2. duties of care in particular

a. Spectators

The contractual duties of care of an organizer of ski touring races also include, in particular, duties to ensure road safety (as already stated in BGE 32 II 300 in connection with a bicycle race). The content and extent of these duties of care depend on the specific competition. In particular, the dangers that are typically associated with the ski race and the general customs in relation to ski races must be taken into account(Arter/Gut, Verantwortlichkeit des Veranstalters von Sportanlässen, p. 79 f.; with regard to the specific safety obligations, see Toneatti, para. 73-85).

b. Athletes

With regard to contractual as well as non-contractual liability(Toneatti, para. 75 et seq.), please refer to Toneatti 's corresponding article.

E. Liability of the association towards its members as tour participants

1. bases of liability

Tour leaders of mountain sports clubs who organize snow sports tours act as auxiliary persons of the club according to the view represented here (Art. 101 OR). A contractual relationship exists between the club and a member who takes part in a snow sports tour advertised by the club (see also Müller, Haftungsfragen, para. 314, para. 329, para. 331; Kocholl, p. 142; Nosetti, para. 122 ff. and the distinction from the guide of the tour offered, para. 136 ff.), whereby the clubs can be regarded as organizers of the tour: The association advertises the tour as a service offer for its members (cf. para. 36 et seq.). If a member's registration is confirmed by the tour leader as an auxiliary person of the association, the member concludes the contract with the association via their auxiliary person (tour leader) and thereby obliges the association to provide the contract. The corresponding order includes the execution of the tour organized in accordance with the club, so the club is the agent and the participating member is to be regarded as the client.

If a member has an accident on an advertised club tour, the question arises as to whether the club is liable to the member under contract law. According to Art. 55 Para. 2 and para. 3 ZGB, the association as a legal entity is liable for damages to members for actions taken by its bodies in this function and within the scope of the purpose of the association (specifically for the board, see Pachmann, p. 258). It is examined whether the body has breached its duty in accordance with the law or the association's internal regulations. Specifically, governing bodies are responsible, for example, for advertising the tours - i.e. correctly assessing the level of difficulty etc. - in their bulletin. The contractual basis for liability between the association and the member is therefore Art. 97 para. 1 OR in conjunction with Art. 398 para. 2 OR, whereby the association is also liable under Art. 101 para. 1 OR, the association must also be liable for the actions of the tour leaders. If the advertised club tour includes at least one overnight stay in addition to the guided tour, the provisions on the package travel contract are generally applicable (Art. 1 PRG; see Müller, Haftungsfragen, para. 332 f.; Nosetti, para. 221 ff.). A possible basis for liability would therefore be Art. 14 PRG.

Actions of the governing bodies outside the purpose of the association can only give rise to tortious liability. In other words, if governing bodies act as private individuals - e.g. as part of a privately organized tour - the association is not liable for the damage caused to association members. The non-contractual bases for liability are Art. 41 OR and Art. 55 para. 1 CO (in detail Müller, Liability issues, para. 341 ff).

2. duties of care in particular

With regard to the general duties of care of clubs as organizers or providers of a snow sports tour, reference can be made to the relevant literature (see in detail Müller, Haftungsfragen, para. 344 et seq.; Nosetti, para. 331 et seq. with regard to liability for auxiliary persons, as well as para. 344 et seq. with regard to liability for substitutes; and in particular with regard to the liability of governing bodies: para. 339 et seq. with further references).

With regard to specific duties of care of mountain sports clubs in the context of snow sports tours, the club's internal regulations must be observed in particular. For example, the question arises as to whether an advertised tour has been checked and advertised by the responsible body in accordance with the club's specifications. If, for example, it turns out that an SAC tour leader has carried out an advertised tour with a difficulty level of SS+ with ten participants (and this has been checked and approved by the responsible body, usually the tour commission, the tour leader or the board), even though the tour leader in question has no training or has not attended the necessary further training courses, this may constitute a breach of duty of care on the part of the responsible body and lead to corresponding liability in the event of an accident (cf. Art. 3.1 Regulations on training and further training requirements for SAC tour leaders).

F. Liability of the mountain railway companies towards tourers

1. bases of liability

Ski tourers sometimes also use ski slopes for training, often because the risks in open terrain seem too high to them subjectively and for the specific training (for example because no partner is available or the avalanche situation seems too high). With an increasing lack of snow, especially at lower-lying starting points for ski tours, ski tourers sometimes also use ski slopes (possibly only for part of their ascent) because there is too little snow off-piste and the slopes are nevertheless groomed and maintained. Other reasons may include protection zones for wild animals in the respective area, good accessibility by public transport or the avoidance of deep snow descents (see an overview in bergzeit magazine).

If ski tourers use ski slopes for the ascent and/or descent, they are generally considered to be slope users in the same way as those persons who were transported to the starting point of the slope descent by ski lift or cable car. Insofar as their use is within the scope of the intended use of the slopes (within the daily and seasonal operating times), the same rules apply to them as to other slope users. For example, they must adhere to the usual rules of conduct, in particular the rules of the International Ski Federation (FIS rules of conduct) (see Elsener/Wälchli, para. 11 ff.).

According to the view expressed here, the obligations of ski slope operators towards ski tourers who use the slope for ascent and/or descent do not differ from their obligations towards slope users who have been transported by cable car or other means of transport, even though the former have not paid for a corresponding ticket. This is because the operation of a ski area gives rise to a legitimate expectation that the slopes offer sufficient safety for the intended use, as the operation of a slope also entails a corresponding obligation to ensure safety. Against this background, some ski resorts offer special tickets for ski tourers. Contractual liability as well as non-contractual liability bases are therefore possible (see Elsener / Wälchli, para. 33 ff.). If ski tourers make use of the services without any consideration, quasi-contractual liability based on legitimate expectation may also be possible.

2. duties of care in particular

In principle, it should be mentioned that accidents on the slopes are regularly due to the misconduct of snow sports enthusiasts and that sports lift companies are therefore only liable in exceptional cases (see also the recent Federal Supreme Court ruling 6B_985/2023 of January 8, 2024; as well as Stiffler, para. 26 and 556; Friedli, p. 188). On the other hand, snow sports areas are increasingly confronted with new challenges due to the changing demands of snow sports enthusiasts and changing climatic conditions(Stiffler, para. 508 ff; Friedli, p. 188). Such new challenges include ice falls, spontaneous avalanches, falling rocks, reduced ability to concentrate due to altitude and the corresponding overestimation of one's own abilities on the part of snow sports enthusiasts, as well as the increasing multiple use of slopes. With regard to the requirements for the safety obligations of sports lift companies (piste operators), please refer to the corresponding article (see Elsener / Wälchli, para. 33 ff.).

On the other hand, it is up to the tourers themselves to find out what is meant by "intended use" in the respective snow sports area and to adhere to it. This includes clarifying the operating times and the applicable regulations in the ski area. In any case, the FIS rules, in particular FIS rule no. 7, must be observed. According to this rule, ski tourers must use the edge of the piste for the ascent. If they leave the edge of the piste and cross the piste, they violate FIS rule no. 7. If this results in an accident, the corresponding breach of duty of care on the part of the ski tourer must be taken into account when assessing the overall circumstances (see also Elsener/Wälchli, para. 104).

In addition, ski resorts can also stipulate special rules such as prohibitions or closures in terms of time, location or for certain uses. It is the duty of care of ski tourers to find out the relevant rules, whereby the piste operators must make the rules clearly visible and easily accessible (e.g. on the website and in the ski area on site). It is particularly important for ski tourers to observe the operating times, because according to point 37 of the SKUS guidelines for snow sports facilities, the company responsible for traffic safety must be able to maintain the slopes and prepare or groom them with machines. Point 38 of the SKUS guidelines stipulates that appropriate orientation signs must be put up to indicate that the pistes are "not secured against dangers such as avalanche blasting or piste machines with cable winches or tilling machines" outside of operating hours. Use despite a corresponding warning is grossly negligent and at the skier's own risk and should generally lead to the failure of any assertion of liability claims against the company responsible for traffic safety due to the skier's own fault (interruption of causality) (see also Elsener/Wälchli, para. 105 and in the SAC's tips and rules of conduct for ski touring on pistes).

If ski tourers disregard the FIS rules or the special regulations in the ski area, this regularly leads to a greatly reduced liability or an exclusion of liability on the part of the piste operator due to their own fault (cf. e.g. for a disregard of FIS rule no. 2 by a piste skier BGer judgment 4A_206/2014 of 18.09.2014, E. 4.5, according to federal court case law, the rule is an important rule of conduct in skiing with reference to BGE 122 IV 17, 21, E. 2b/bb).

Many ski resorts have special offers for ski tourers. The offer is very varied and diverse (see an overview in the SAC's tips and rules of conduct for ski touring on pistes):

• Night slopes for ski tourers;
• Slopes specially designated for ascent (for sole use or shared use with other slope users);
• Time limits for ascents on ski slopes;
• Special tickets/day passes for ski tourers;
• Other services such as time measurements;
• Etc.

Yellow-marked runs, which are advertised in many Swiss ski resorts, are a special feature. These are ski routes that are secured against avalanches by the piste service, but are not otherwise controlled or prepared (see bfu, Off-piste, p. 3). Here too, any special rules defined by the ski area, such as operating times or closures, must be observed or, if these are disregarded, the liability of the ski area operator is generally excluded or at least considerably reduced.

G. Liability of tourers (including guides) towards third parties

Third parties are primarily other snow sports operators, namely piste skiers and other tourers from other tour groups. Possible liability claims from other persons also come into consideration, in particular avalanches on a road, provided they were triggered by ski tourers.

Insofar as ski tourers are on ski slopes (see III.C.6.b above). However, ski tourers can also trigger avalanches, which can then fall onto a piste and thus cause damage to piste users and possibly also to the piste operator (see also the definition of a criminal offense, Koch, para. 96 ff.).

In principle, only non-contractual liability can be considered as a basis for liability under civil law, as the persons involved have no special relationship to each other, but meet "by chance". Liability in accordance with Art. 41 para. 1 CO. Cf. in detail above under the relevant groups of persons. It should be added at this point that when assessing the duty of care, it must be taken into account whether a snow sports tour could pose a risk to third parties (see also Koch, para. 106). When planning and carrying out a tour, it must therefore be considered whether the tour could endanger third parties (piste users, tourers from other groups) and the necessary precautionary measures (changing the route, individual crossing, aborting the tour, etc.) must be taken.), provided that the danger of an avalanche triggering is foreseeable for the tourers in the specific case (see Koch, para. 101 ff. on the BGer judgment 6B_403/2016 of November 28, 2017, and in particular para. 103 regarding criticism of the conviction, as according to the expert opinion, the remote triggering of the avalanche was not foreseeable for the freeriders concerned). According to the view expressed here, the statements in Koch, para. 103, are apt and, by analogy, also applicable to the duty of care in the context of an examination of civil law claims based on fault-based liability pursuant to Art. 41 para. 1 OR are applicable. In particular, disregarding warnings such as warning lights, road closures, warning signs and the like does not in itself constitute a breach of the duty of care. The corresponding warnings are to be understood as an explicit indication to snow sports enthusiasts that they are now in "open terrain" and therefore move there on their own responsibility, i.e. "at their own risk". At the same time, such warnings relieve the ski resort operators - also under civil law.

For further individual questions regarding the liability of snow sports enthusiasts among themselves who are not participants in the same group and for whom there is therefore neither a contractual relationship nor a special legal relationship nor a community of risk, see Müller, Haftungsfragen para. 262 ff.

H. Liability of third parties towards tour participants

The community, (mountain) farmers, nature parks, livestock owners or other private owners such as power plant operators are liable to hikers on their land if a specific liability standard applies. With regard to animal owner liability, reference can be made to the explanations in Vuille, para. 75 and 76.

In practice, barbed wire fences in particular can also prove problematic in the context of snow sports tours. Some cantons have issued temporary bans on barbed wire fences. In these constellations, a landowner could be liable if he leaves a barbed wire fence in place despite the ban and this leads to damage to a snow tourer. However, according to the view expressed here, the prerequisite is that the ban was also issued to protect the tourers. Other fences can also cause serious injuries to snow tourers.

With regard to procedural issues, please refer to the comments in Müller/Sidiropoulos. In connection with snow sports tours, the importance of expert opinions should be emphasized in particular (see Müller/Sidiropoulos, paras. 9, 15, 20-24, 33 ff., 60 ff.).