Bibliography
Arter, Oliver/Gut, Eva, Verantwortlichkeit des Veranstalters von Sportanlässen, in: Kleiner, Jan/Baddeley, Margareta/Arter, Oliver (Hrsg.), Sportrecht Band II, Bern 2018, S. 19 ff.; Auckenthaler, Maria/Hofer, Norbert, Klettern und Recht, 2. Aufl., Wien 2011; Brehm, Roland, Berner Kommentar, Art. 58 OR, 5. Aufl., Bern 2021; Brehm, Roland, Berner Kommentar, Art. 41-61 OR, 5. Aufl., Bern 2021; Brunner, Andreas/Vollenweider, Doris, in: Frésard-Fellay, Ghislaine/Leuzinger, Susanne/Pärli, Kurt (Hrsg.), Basler Kommentar, Unfallversicherungsgesetz, Basel 2019; Burger, Klaus, Bewusste Risikoübernahme - Rechtsentwicklung zur Eigenverantwortung am Beispiel des Bergsports, SpuRt 4/2007, S. 149 ff.; Christen, Rita, Gutachten bei Bergunfällen, HAVE: Haftung und Versicherung 2015, S. 268 ff.; Ermacora, Andreas, Haftung versus Eigenverantwortung am Berg, in: Büchele, Manfred/Ganner, Michael/Khakzadeh-Leiler, Lamiss/Mayr, Peter G./Reissner, Gert-Peter/Schopper, Alexander (Hrsg.), Aktuelle Fragen des Bergsportrechts, Wien 2016, S. 37 ff. (zit. Ermacora, Eigenverantwortung); Ermacora, Andreas, Mizzi Langer Urteil, bergundsteigen 2/04, S. 16 f. (zit. Ermacora, Mizzi Langer Urteil); Ermacora, Andreas, Haftung und Eigenverantwortung am Berg, in: Dach Europäische Anwaltsvereinigung e.V., Rechtsfragen rund um den Sport, Zürich 2017, S. 1 ff. (zit. Ermacora, Haftung); Feser, Holger/Lustenberger, Erik, Haftungsfragen bei Erstellung und Unterhalt von Kletterrouten, Sicherheit & Recht 1/2014, S. 3 ff.; Fellmann, Walter, Berner Kommentar, Art. 394-406 OR, 5. Aufl., Bern 2021; Gehring, Kaspar, Berner Kommentar, Art. 39 UVG, Bern 2018; Glünkin, Rolf, Kletterregelung im Solothurner Jura, Umweltrecht in der Praxis 2010, S. 381 ff; Häfelin, Ulrich/Müller, Georg/Uhlmann, Felix, Allgemeines Verwaltungsrecht, 8. Aufl., Zürich/St. Gallen 2020; Hinteregger, Monika, Klettern und Recht, in Büchele, Manfred/Ganner, Michael/Khakzadeh-Leiler, Lamiss/Mayr, Peter G./Reissner, Gert-Peter/Schopper, Alexander (Hrsg.), Aktuelle Fragen des Bergsportrechts, Wien 2016, S. 37 ff.; Hügi, Thomas, Sportrecht, Bern 2015; Klaus, Mathis/Meyer, Conrad, Basiswissen Recht, Ein praxisorientierter Leitfaden, 9. Aufl., Zürich 2013; Kocholl, Dominik, Die Schwerkraft vor dem Gesetz. Die Rechtswidrigkeit bei stürzenden Menschen und Steinschlag, bergundsteigen 3/06, S. 18 ff.; Kuonen, Stéphanie, Hochtouren, in: Schneuwly, Anne Mirjam/Müller, Rahel, Bergsportkommentar 2022; Müller, Christoph, Berner Kommentar, Art. 1-18 OR, 5. Aufl., Bern 2021; Müller, Rahel, Vorbemerkungen zu den Bergsportarten, in: Schneuwly, Anne Mirjam/Müller, Rahel, Bergsportkommentar 2022 (zit. Müller, Bergsportkommentar); Müller, Rahel, Haftungsfragen am Berg, Zürich/St. Gallen 2016 (zit. Müller, Haftungsfragen); Müller, Rahel, Wenn der Kletterausflug im Gerichtssaal endet, Sicherheit & Recht 2/2012, S. 101 ff. (zit. Müller, Kletterausflug); Schwenzer, Ingeborg/Fountoulakis, Christiana, Schweizerisches Obligationenrecht Allgemeiner Teil, Bern 2020; Stark, Emil, Haftpflicht für Kletterhallen, in Mélanges Pierre Engel, Lausanne 1989, S. 393 ff.; Szépfalusi, Csaba, Klettersteig-Guide Österreich, 4. Aufl., Innsbruck 2016; von Känel, Jürg, Zum Bohren und Sanieren von Plaisirrouten. Gedanken und Tipps rund um den Bohrhaken, https://www.filidor.ch/de/verlag/tipps-and-tricks?highlight=bohren%20sanieren (besucht am 17. August 2022); Weber, Rolf H./Emmenegger, Susan, Berner Kommentar, Art. 97-109 OR, 5. Aufl., Bern 2021; Werner, Paul/Kürschner, Iris/Hemmleb, Jochen/Huttenlocher, Thomas, Klettersteigatlas Alpen: Über 900 Klettersteige zwischen Wienerwald und Côte d'Azur, 9. Aufl., München 2022; Winkler, Kurt/Brehm, Hans-Peter/Haltmeier, Jürg, Ausbildung. Bergsport Sommer. Technik/Taktik/Sicherheit, 6. Aufl., Thun/Gwatt 2022.
Materials
Ad-hoc-Kommission Schaden UVG, Empfehlungen zur Anwendung von UVG und UVV Nr. 5/83 Wagnisse vom 10. Oktober 1983, Totalrevision vom 16. Juni 2010, angepasst per 18. November 2016 und 27. Juni 2018; Beratungsstelle für Unfallverhütung – bfu, Fachbroschüre Kletteranlagen, 2015; Botschaft zu einem Bundesgesetz über Fuss- und Wanderwege (FWG) vom 26. September 1983, BBl 1983 IV S. 1 ff.; Bundesamt für Sport BASPO, Sportklettern Ausbildungsstruktur vom 26. Oktober 2017; Re-Bolting Verein für nachhaltiges sanieren und einrichten von Kletterrouten; SAC-Richtlinien Umwelt und Raumentwicklung, Bern 2017.
I. Introduction
People who rock climb want to be in nature, to exercise, to test their limits. Even if climbers assume that they will not be hit, rockfall, material faults, belay faults or rope handling faults in general can lead to accidents. Who is liable if an accident results in injury or even death? Is the belayer solely liable, or at best the developer of the route, because the bolt was set incorrectly? An accident then quickly costs several tens of thousands of Swiss francs: hospital, rehabilitation, loss of working hours, etc. The insurance companies will also want to have their say: was the risk taken too high or was it avoidable? The mountain is no longer considered a lawless zone, as it may have been in the past.
II. General
People who climb on the rock will usually be on climbing routes, in climbing gardens or on via ferratas. Before going into liability issues, a few basic aspects such as terminology and questions regarding route development and rehabilitation need to be clarified.
A. Definition
A climbing route describes the specified route for climbing a mountain peak or rock face. A climbing route is quasi a vertical hiking trail. However, it does not fall within the scope of the Federal Law on Footpaths and Hiking Trails (cf. Art. 2 and 3 FWG and BBl 1983 IV 8).
The collective term climbing route covers a wide variety of route types: including alpine climbing routes, sport climbing routes, climbing gardens or via ferratas (cf. the detailed presentation in Feser/Lustenberger, p. 7 f.; Müller, Haftungsfragen, para. 113).
1. Climbing garden/sport climbing routes
A climbing garden consists of a variety of sport climbing routes. Most of them are single-pitch routes that can also be climbed top rope (when top rope climbing, the rope is already through the top anchor; the climber can sit in the rope at any time without falling or be lowered by the belayer). Climbing gardens are usually located in easily accessible terrain (Feser/Lustenberger, p. 7).
In the case of climbing gardens, a distinction can be made between established and developed climbing gardens. In the former, the entire area or sectors are developed in a planned and systematic manner. A grown climbing garden, on the other hand, is created over time by successively adding new routes (Feser/Lustenberger, p. 7; Müller, Kletterausflug, p. 102).
Climbing routes are given difficulty grades in climbing guides, on Internet portals or sometimes directly on the rock. The basic idea is to define the difficulty of a route in order to be able to classify it in comparison with other routes. However, the significance of these ratings is limited and serves more as an orientation, since numerous factors play a role that can only be taken into account to a limited extent: Slope of the wall, size and number of possible holds and footholds, rock condition, alignment, condition and character (cf. the various climbing scales and their equivalent: https://www.bergfreunde.de/out/pictures/wysiwigpro/kalkulatoren/pdf/kletterskalen-vergleich-tabelle.pdf, https://www.sac-cas.ch/fileadmin/Ausbildung_und_Wissen/Tourenplanung/Schwierigkeitsskala/Kletterskala-UIAA.pdf, Schwierigkeitsgrade Klettern (kletterportal.ch)). In Switzerland, the French scale is the most common. The grades can be roughly divided into routes for beginners (1-3c+), advanced climbers (4a-6a), experienced climbers (6a+-7a+), and experts (7b-9c).
2. Alpine climbing/multi-pitch routes
Alpine climbing or multi-pitch climbing is a sub-form of climbing in which the goal of the climb is often to reach the top of the mountain. It involves climbing several pitches of high rock faces or pillars. Alpine climbing routes are often less well secured than sport climbing routes, so that additional so called "clean gear" may be required in addition to the existing bolts (Feser/Lustenberger, p. 7 and Müller, Haftungsfragen, para. 142).
Multi-pitch routes are rated with the same climbing scales as sport climbing routes. In some areas, however, you can also find scales for aid techniques. This means that standing on or pulling oneself up via devices attached to fixed or places protection is used to make upward progress (cf. https://de.wikipedia.org/wiki/Schwierigkeitsskala_(Climbing)#Technical_Climbing; https://www.alpenverein-freistadt.at/UIAASkala.htm).
3. Via ferrata
A via ferrata is a rock climbing route secured with iron ladders, iron pins and steel ropes. The via ferrata is characterized by the fact that no rope partner is required for belaying, but climbing is done with a self-securing device. In addition, several people can climb the same route at the same time. Depending on the difficulty, no or only little climbing experience is required to climb via ferrata (Müller, Haftungsfragen, para. 143; Müller, Kletterausflug, p. 102; Winkler/Brehm/Kaltmeier, p. 128).
There are also rating scales for via ferrata, in which terrain, protection, ability and equipment are recorded (cf. https://www.berg-freunde.ch/klettersteig-schwierigkeitsgrade-rechner/, https://www.sac-cas.ch/fileadmin/Ausbildung_und_Wissen/Tourenplanung/Schwierigkeitsskala/Klettersteigskala-SAC.pdf). The most common categorization in Switzerland is the "Hüsler scale" and goes from K1 (easy) to K6 (extremely difficult).
4. Climbing instructors
Climbing instructors with a federal certificate teach children, young people and adults how to climb. On the rock or in the climbing hall, they teach their customers about materials, rope handling, belaying and climbing techniques. The qualifications required for the examination are acquired in various modules (see Christen, p. 269; https://sbv-asgm.ch/kletterlehrer-kletterlehrerin/#toggle-id-8). The prerequisite for admission to training as a climbing instructor is, among other things, a completed Youth and Sport training course in sport climbing up to and including the module "Approval WB2" (cf. Federal Office of Sport, p. 2 f.). The training as a climbing instructor is comprehensive. After passing the professional examination, climbing instructors are able to give group and individual lessons at various skill levels (indoor, outdoor, multi-pitch climbing, etc.; cf. also https://sbv-asgm.ch/wp-content/uploads/Kletterlehrerausbildung-Schema_Vers._2022.pdf; for the distinction between climbing instructors and mountain guides, see Kuonen, para. 23 et seq.).
B. Developing climbing routes
In the past, opening a climbing route, the "first ascent" was a pioneering act. Only the best and bravest dared to climb unclimbed walls. With the evolution of sport climbing in the late 1970s, the focus of climbing changed. It was not the mountain peak that attracted people to the rock, but the difficulty of the climbing as such. With plaisier climbing - climbing in well-secured routes of lower to medium difficulty - the sport of climbing became accessible to the wider masses in the 90s. As in extreme climbing - climbing at medium and high difficulty levels - plaisier climbers are also concerned with being out in nature and pushing their limits. However, they gain their experience in easier and well-secured routes in order to improve their climbing technique (discussed in detail by von Känel, p. 1 ff.; so also Feser/Lustenberger, p. 8).
In addition to classic climbing, a veritable "via ferrata hype" has emerged in recent years. There are well over 1000 via ferratas in the Alpine region and more are added every year (Szépfalusi, p. 14). Via ferratas are often created with the idea of offering a challenge to sporty mountain tourists. Initiators are often local tourism associations or cable car companies (Szépfalusi, p. 14; Werner/Kürschner/Huttelochker/Hemmleb, pp. 13, 22).
The development of climbing has led to the establishment of many climbing routes, climbing gardens and via ferratas. This has also given rise to a fundamental discourse concerning route development, maintenance and safety.
1. Right to develop climbing routes
a. Climbing routes
Climbing routes are usually built by private individuals or clubs by drilling, hammering in or gluing in bolts. Depending on the route, belay stations and abseiling points are added. This constitutes an encroachment on real property (Müller, Kletterausflug, p. 103). Even if, according to Swiss law, so-called uncultivated land such as rocks may be freely stepped on (Art. 664 para. 2 ZGB), this does not per se allow any use. The establishment of a climbing route may constitute a simple or an increased public use (in detail on the public use Häfelin/Müller/Uhlmann, N 2252 ff.).
In Austria, this question has been extensively studied in the literature as well as in case law (cf. Hinteregger, p. 40 f. m.w.V.). According to Austrian literature and jurisprudence, rock climbing (climbing, route development, bolting) is covered by the freedom of way according to § 33 Forest Act. § Section 33 of the Forest Act allows anyone to step on forests for purpos of recreation, similar to Article 664 paragraph 2 of the Civil Code. In a specific case, the competent Austrian court came to the conclusion that the activity of climbing does not differ significantly from walking and running, even if various securing means such as rope, slings, carabiners and bolts are used. In this context, not only climbing was covered by the public right of way, but also the placement of bolts and the development of routes by setting bolts. The ruling was upheld by both appellate courts (in detail Ermacora, Mizzi Langer Urteil, p. 17; Hinteregger, p. 40 f.). Also according to Swiss law, it seems appropriate to describe the setting up of a climbing route as the intended use of a rock face. The fact that climbing is possible on a rock face results from its natural characteristics. The public compatibility can also be affirmed, since other persons are not excluded from a simultaneous use of the rock and its surroundings. However, under Swiss law, the consent of the landowner, or a permit from the community, may be required if, for example, designated protection zones (national park, hunting reserves, nature reserves, etc.) or private properties are involved (Winkler/Brehm/Kaltmeier, p. 27; von Känel, p. 4).
In summary, it can be stated that the development of a climbing route is basically permitted. It is in accordance with the applicable law that rocks may be accessed (Art. 664 para. 2 ZGB). The development of a climbing route does not constitute an increased public use. It remains to be examined on a case-by-case basis whether the consent of the landowner or a permit obligation on the part of the community is required (so also Feser/Lustenberger, p. 6; Glünkin, p. 386; Müller, Kletterausflug, p. 103).
b. Climbing gardens and via ferrata
For climbing gardens and via ferrata, the previously mentioned applies in principle. An essential difference is that climbing gardens and via ferratas are larger installations. In addition to the more extensive safety elements (especially in the case of via ferratas), climbing gardens and via ferratas are also developed and built with the aim of making them accessible to a larger number of athletes. This often leads to the fact that also the approaches are better prepared, possibly secured with fixed ropes, iron or wooden steps. Often, the area at the base of the wall is also corrected for safety and comfort reasons (safety devices, clearing of bushes and shrubs, etc.). As a rule, this use should no longer fall under the intended use of rock faces. In individual cases (especially in the case of via ferrata), a permit must be obtained: on the one hand, a building permit, and on the other hand, a permit for increased public use or for special use (Müller, Kletterausflug, p. 104).
In this regard, the Austrian Supreme Court found that the systematic creation of a climbing garden (44 climbing routes with 500 bolts) exceeds the traditional use of the mountains by the general public and consequently constitutes a use of a rock face requiring a permit (Hinteregger, p. 42). A permit requirement gives the community the opportunity to weigh interests. Experience has shown that often interests of environmental protection (e.g. protected areas) can speak for the granting of a permit with conditions or even against the granting of a permit (Müller, Kletterausflug, p. 104). For example, in the Solothurn Jura (Thal and Dorneck), comprehensive climbing regulations have been enacted so that climbing, hunting and nature conservation can be reconciled and coordinated (Glünkin, p. 381 ff., for a detailed discussion). In the case of climbing gardens and via ferratas, it must therefore be assumed that a permit is required in case of doubt.
2. Obligation to maintain routes
a. Climbing routes
Thanks to a bolted climbing route, climbers can climb a route. The existing bolts and belay stations serve as signposts and belay points. Neither for the development nor for the maintenance of a climbing route are there any rules recognized by the state or by professional associations (Feser/Lustenberger, p. 8; Müller, Haftungsfragen, para. 116). However, there are recommendations for bolting and maintenance, which do not (yet) have the character of a recognized standard (Auckenthaler/Hofer, p. 61; Burger, p. 151). The setting up of a route is further not reserved for designated experts (Müller, Kletterausflug, p. 106). Another aspect to be considered is that those who develop a climbing route regularly do so without commercial interest and bear the material costs themselves (Feser/Lustenberger, p. 13).
From the foregoing, it can be deduced that there can be no obligation for route maintenance. Such an obligation would be out of touch with reality and also bears no relation to the economic importance of a climbing route (Müller, Haftungsfragen, para. 132). In addition, climbers generally have an interest in new routes being developed. To link route development with a maintenance obligation would be contrary to this. Finally, a maintenance obligation on the part of the developer could also simply fail due to factors such as technical fitness, age, illness, death, change of residence, abandonment of climbing, etc. (Feser/Lustenberger, p. 14).
b. Climbing gardens and via ferrata
As already mentioned with regard to development, the conception of climbing gardens and via ferratas does not fully correspond to that of climbing routes. Climbing gardens and via ferratas are often built with the aim of making them accessible to a broad public (Müller, Haftungsfragen, para. 150). A duty of maintenance can be assumed more easily. It must also be taken into account how a climbing garden or via ferrata is commercialised to the public, whether an operator is actively involved or whether there is a commercial interest in operating the climbing garden or via ferrata.
In Austria, there is a clear position regarding the obligation to maintain climbing gardens and via ferratas. In the case of developed climbing gardens (see above no. 6, para. II.A.1), there is no obligation to maintain due to the lack of an existing operator. The routes were mostly created in different periods of time. Climbing is done on one's own responsibility. In the case of established climbing gardens and via ferratas, on the other hand, an organization such as a tourist association, a municipality or an alpine club often acts as the operator. These are also responsible for maintaining the proper condition. Jurisprudence requires an annual inspection as well as the removal of any damage or defects and, if necessary, the closure of the climbing gardens or via ferratas (Hinteregger, p. 49 ff.). It should be noted that under Austrian law, established climbing gardens and via ferratas are referred to as paths (§ 1319a ABGB) and the owner is responsible for the proper condition of a path (Auckenthaler/Hofer, p. 39).
This legal situation is not per se transferable to Switzerland, since (established) climbing gardens and via ferratas are not paths within the meaning of the Federal Law on Footpaths and Hiking Trails. Whether or not there is an obligation to maintain climbing gardens and via ferratas must be assessed on a case-by-case basis, but will never be able to go beyond what is reasonable (annual inspection, posting of warning notices in case of danger, notice that climbing garden is not maintained, etc.). Finally, as in the case of climbing routes, climbers have an interest in new climbing areas being developed and climbing routes being bolted. To link the construction with a maintenance obligation would be contrary to this.
III. Private law
Climbing accidents can have a wide variety of causes: broken bolts or holds (which in turn can have natural causes [rockfall, etc.] or human error [improper use of the material, incorrect placement of bolts, etc.] as their cause), belaying errors by the climbing partner, rockfall, falls on the route or during the ascent, incorrect route description or incorrect route guidance (Feser/Lustenberger, p. 4; Müller, Haftungsfragen, para. 114). Accordingly, various liability bases under private law also come into consideration: liability due to fault, liability of property owners, contractual liability, liability based on trust (Müller, Haftungsfragen, para. 118).
A. Principle of personal responsibility
Rock climbing as well to climb a via ferrata involve risks that climbers consciously accept. They act largely on their own responsibility or at their own risk (Müller, Haftungsfragen, para. 24).
According to federal court case law, acting at one's own risk means that the injured party intentionally or negligently places himself or herself in the concrete danger that will be his or her undoing, or if he or she intentionally or negligently increases this danger through his or her conduct and thus promotes the occurrence of the damaging event (judgment 5A_54/2008 of April 30, 2008 E. 4.2 with further references). For climbing, this means in particular that dangers inherent in climbing are to be borne by the climbers (Burger, p. 149 ff.; Ermacora, Haftung, p. 3). It follows that climbers must prepare, train, protect and inform themselves accordingly (Müller, Kletterausflug, p. 109; Feser/Lustenberger, p. 17). Acting at one's own risk does not mean that injured parties have no claim for damages, but it can lead to a reduction in damages or to a loss of damages (BK-Brehm, Art. 44 OR N 9 ff.). It will therefore have to be assessed in each individual case how far the personal responsibility of the climbers goes and how this affects a possible liability.
B. Liability due to fault
Anyone who unlawfully causes damage to another, whether willfully or through negligence, is obliged to provide compensation (Art. 41 OR). The prerequisites for liability due to fault are damage, causality, the unlawfulness of the caused damage and fault on the part of the injuring party. The injured party has the burden of proof in this regard (Art. 8 ZGB; see also judgment 4A_399/2012 of December 3, 2012 E. 2.1).
1. Requirements for liability
No liability without damage! The damage is the sine qua non of the liability (BK-Brehm, Art. 41 OR N 69, in detail N 70 ff.). If there is no damage, the other requirements of Art. 41 OR are meaningless (judgment 4C_412/2004 of February 23, 2005 E. 4). In the case of climbing accidents, various types of damage come into question: personal injury (all material losses caused by bodily injury or death of a person), property damage (damage caused by damage, destruction or loss of an object) and also frustration damage (material losses due to expenditure already made, which becomes obsolete due to a climbing accident; cf. on the whole Müller, Haftungsfragen, para. 49 ff.).
The liability for a damage is only given if there is a causal connection between behavior and success (in detail BK-Brehm, Art. 41 OR N 103 ff.). If defective material (bolts, climbing equipment), incorrect use of belaying elements (in route development as well as in securing the climbers) or also incorrect route description or route guidance lead to an accident, causality should generally be given.
Unlawfulness always exists if absolute legal interests such as life, limb, health, other personal rights as well as property or possession are violated (BK-Brehm, Art. 41 OR N 35). Property as such is not an absolutely protected legal interest. In the case of a pure pecuniary loss, in the absence of a general protective norm, it must be clarified in advance whether a particular norm of conduct has been violated (judgment 4A_337/2018 of May 9, 2019 E. 4.1.1). In the case of a climbing accident, an absolutely protected legal interest is likely to be regularly affected, which means that unlawfulness is generally given. If it is only a matter of compensation for frustration damage, it would have to be examined in each individual case whether a special norm of conduct applies.
Behaviour will only be relevant under liability law if there is fault (in detail BK-Brehm, Art. 41 OR N 166 ff.). In the case of a climbing accident, there is hardly any question of a deliberately caused (willful intent) or accepted (negligence) event. As a rule, an accident is caused by negligence.
2. Liability of the climbing partners
If a rope team climbs together, mutual duties of protection and care arise. Climbing partners are obligated to provide mutual assistance and support in mastering the climb within the scope of their possibilities (Hinteregger, p. 46). If an obvious misconduct in the rope team leads to an accident, the requirements of Art. 41 OR should generally be met. The standard of care of the climbing partners is assessed according to the basic climbing rules and standard measures. This must be contrasted with the principle of personal responsibility (Müller, Kletterausflug, p. 112).
If one of the climbers is technically better and more experienced, this does not per se lead to him or her assuming responsibility for the safety of the others. According to Austrian literature and practice, however, such obligations can arise when one climber expressly or conclusively assumes responsibility for the safety of the others (with references to Hinteregger case law, p. 47). This is the case when an experienced climber takes beginners on a climbing tour and conceals from them the difficulties and dangers that are not recognizable to them or persuades them to go on a tour by playing down the difficulties and dangers. In such cases, the trust placed in the more competent partner by the inexperienced climber is worthy of protection. The tour guides "by courtesy" are not measured against the knowledge and skills of professional, commercial active mountain guides, but they must nevertheless meet an objective standard of care. Decisive for the extent of the assigned due diligence is the situation of trust created by the preceding behavior (inviting or persuading the other person) (Hinteregger, p. 47; Ermacora, Eigenverantworung, p. 4 f.). In Switzerland, there is no case law on this question yet. However, the literature also assumes that tour guides "by courtesy" have a more extensive duty of protection and care towards other climbers who do not assume responsibility for guiding (Christen, p. 270). According to the general jurisprudence of the Federal Supreme Court on courtesy, the person courteously (experienced person) is liable according to the principles on tort. Thus, no contractual or quasi-contractual relationship is assumed (judgment 4A_275/2011 of October 20, 2011 E. 4.1 and 5.1). In this regard, the party liable must only exercise the care that he would observe for himself (so-called own-usual care or diligentia quam in suis; BGE 137 III 539 E. 5.2; judgment 4A_604/2017 of April 30, 2018 E. 3.5). It remains to be seen whether, in a specific case, a court will rule in favor of a more extensive duty of protection and due diligence on the part of climbing tour guides "by courtesy" or whether it will follow the general case law of the Federal Supreme Court.
3. Liability of the climbing instructors
Liability due to fault also applies if a person or a group is on a climbing trip with climbing instructors. Liability can arise if climbing instructors violate their due diligence, e.g. carry out a climbing tour despite bad weather conditions, insufficiently instruct, correct or supervise inexperienced climbers or disregard other safety precautions (Müller, Kletterausflug, p. 111 f.; Winkler/Brehm/Kaltmeier, p. 111). The extent of these duties of care is measured by the particular circumstances of the individual case and must not exceed what is reasonable (Hinteregger, p. 45 with further references; Ermacora, Haftung, p. 3). The personal responsibility of the climbers must also be taken into account (Müller, Kletterausflug, p. 112).
Multi-pitch climbing as well as climbing via ferrata are considered high-risk activities in the sense of the Federal Act on Mountain Guides and Organisers of other High-Risk Activities (Art. 3 para. 1 let. f and h RiskV). As soon as climbing instructors carry out multi-pitch routes with clients, recognized training and a permit are required (Art. 3 RiskG in conjunction with Art. 6 Para. 1 and 4 RiskV). On the other hand, the law specifies various duties of care that come into play when examining any liability for fault (for example, the duty to inform about particular dangers, to check the ability of the client or to ensure that the material is free of defects and the installations are in good condition; see Art. 2 Para. 2 RiskG).
Even though the High-Risk Activities Act only defines multi-pitch climbing and via ferrata as high-risk activities, and therefore neither a recognized training as a climbing instructor nor a permit is required for climbing courses in climbing gardens (Christen, p. 269), the duties of care for climbing instructors mentioned in the High-Risk Activities Ordinance should apply to all climbing activities. In the area of sport climbing, too, it seems appropriate and reasonable that climbing instructors have a duty to inform, that the capability of the clients and the absence of defects in the equipment should be checked. Since no recognized training is required for climbing instructors the area of sport climbing, the duties of care are likely to be a bit lower.
4. Liability of the route developer
In order for the route developer to be liable under Art. 41 OR, the person that developed and maintained the route must be known (and it must still be alive). Furthermore, it must be proven that the climbing route was bolted and/or maintained in a defective manner in breach of duty (Müller, Haftungsfragen, para. 116, 120). As previously stated, there are no rules for route development recognized by the state or by professional associations. Also, the development of a route is not reserved for specialists (see above margin no. 21, para II.B.2.a). Based on this and the fact that no commercial interests are pursued with the development of a climbing route, it can be concluded that climbers may not have any justified confidence in the safety of a climbing route. Under the heading of personal responsibility, climbers have to question the safety of a climbing route as well as their own abilities. It should hardly be possible to prove fault on the part of the route developer (Müller, Haftungsfragen, para. 120, 123; Müller, Kletterausflug, p. 104).
In the case of climbing gardens and, in particular, via ferratas, the situation must be viewed in a more differentiated manner. As mentioned above, climbing gardens and via ferratas are often created with the intention of opening them to a wider public. Advertising for a via ferrata or a climbing garden, signposts to the entrance, information boards and especially "open signs" can influence or raise the safety requirements for the person developing or maintaining a climbing garden or via ferrata. Conversely, increased safety requirements mean that the hurdle for a breach of duty is lower and even minor breaches of duty can constitute fault (Müller, Haftungsfragen, para. 147; Müller, Kletterausflug, p. 105).
5. Liability of third parties
Climbing accidents can also be caused by third parties, e.g. if a hiking trail runs above a climbing route and hikers release rocks that fall into the climbing route, or if several rope teams are on a climbing route and the first rope team causes rock falls. The same applies to via ferratas, where several people are usually on the via ferrata at the same time. Also in these cases, liability according to Art. 41 OR is possible. However, this will again depend on the fact that fault can be proven.
There is already case law concerning the culpably release of avalanches that resulted in the death of persons (cf. the references to the judgments in Müller, Haftungsfragen, para. 273). Consequently, constellations are conceivable in which the behavior of third parties can lead to an injury giving rise to liability. In particular, if several persons or rope teams are on the same climbing route or in a via ferrata, personal responsibility is likely to be of great importance. It should be clear to climbers, for example, that the risk of rockfall is greater when a rope team is climbing the same route or when many people are standing close together in a via ferrata. Climbers must evaluatethe risk and, if necessary, refrain from entering the same route or wait until there is sufficient distance.
C. Liability of property owner
The owner of a building or any other structure is liable for any damage caused by defects in its construction or design or by inadequate maintenance (Art. 58 para. 1 OR). The prerequisites are again damage, causality and the unlawfulness of the damage. In contrast to the liability for fault, the liability of the property owner is a causal liability, in which the damage is caused by a defective building or other structure regardless of fault.
2. Requirements for liability
With regard to damage, causality and unlawfulness, reference is made to the explanations regarding liability for fault (see above no. 30 ff., para. III.B.1). In the following, only the concept of work and the defectiveness will be dealt with in more detail.
A building or other structure within the meaning of Art. 58 OR is an object that has been designed by human being and is directly or indirectly firmly connected to the ground (BK-Brehm, Art. 58 OR N 26). A climbing route is created by attaching permanent elements in the rock (climbing bolts, belays, etc.), which specify the route or path. Opinions differ as to whether the building or structure characteristics are fulfilled (in favor: BK-Brehm, Art. 58OR N 45; Müller, Kletterausflug, p. 106; Müller, Haftungsfragen, para. 125; Stark, p. 398 f.; against: Feser/Lustenberger, p. 14 f.). In the present case, it is assumed that a climbing route constitutes a building or other structure at least if it is provided with fixed drilling or gluing bolts as well as belay stations and abseiling points. In the case of so-called clean climbing routes (climbing without damaging the rock with mobile securing devices that are removable), the definition of a building or other structure is likely not fulfilled. Climbing gardens and, in particular, via ferratas are larger installations that are designed by human beeing and are directly connected to the ground or the rock, so that the definition of building or other structure is clearly fulfilled (Müller, Haftungsfragen, para. 149; Schwenzer/Fountoulakis, para. 53.25; SAC-Richtlinien Umwelt und Raumentwicklung, p. 20).
The assessment of the defectiveness is based on the specific circumstances of the individual case. The purpose of the building or structure is of primary importance (Schwenzer/Fountoulakis, para. 53.24; BK-Brehm, Art. 58 OR N 54 ff.). Moreover, a duty to safeguard exists only insofar as it is proportionate and reasonable (Schwenzer/Fountoulakis, para. 53.26; BK-Brehm, Art. 58 OR N 54a). The Federal Supreme Court additionally states that the safety of a building or other structure is also measured by the intended use (judgment 4C_386/2004 of March 2, 2005 E. 2.1; judgment 4A_612/2010 of February 14, 2011 E. 2.3). This, in turn, is based on the respective circle of users, whereby the owner of the building or other structure may expect a reasonable and prudent behavior in accordance with the general average (Müller, Haftungsfragen, paras. 80, 88; Schwenzer/Fountoulakis, para. 53.25).
The purpose of a climbing route is to provide climbers with the opportunity to climb the route using the existing bolts/belays. As mentioned above, climbers must question the quality and safety of a climbing route. Climbers are also free to attach additional safety devices (nuts, friends) (Müller, Haftungsfragen, para. 127 ff.). In the case of climbing gardens and via ferratas, the purpose differs from that of the climbing route. Climbing gardens and in particular via ferratas are created with the purpose of making them accessible to a broad public (Müller, Kletterausflug, p. 107; in detail Müller, Haftungsfragen, para. 150 ff.). But even this does not exempt climbers from questioning the conditions on site and the condition of the materials used. Especially in well-visited climbing gardens and via ferrata, material fatigue and wear can occur more quickly than in climbing routes (e.g. rope worn carabiners).
With regard to the proportionality and reasonableness of a safety obligation, it will have to be assessed in each individual case which measures have to be taken (Müller, Haftungsfragen, para. 130 f.; Feser/Lustenberger, p. 15). It must be borne in mind that route developers must not complete any training obligation and that the access to a climbing route is not regulated by law. However, it can be expected that concretely recognizable dangers are taken into account when setting up a climbing route (avoidance of brittle rock and fragile slabs, sensible bolt placement). An obligation to maintance cannot be assumed (see above no. 22, para. II.B.2.a). In view of the intended purpose as well as the economic importance of climbing gardens and via ferratas (see also above no. 23, para. II.B.2.b), more extensive measures with regard to development and maintenance are reasonable. The measures considered reasonable in Austria also seem acceptable for Switzerland: an annual inspection of the facilities; additional inspections after storms; information, if necessary closure of the climbing garden or via ferrata if no inspection can be carried out or the climbing garden or via ferrata has not been inspected for a long time (Hinteregger, p. 50; so also Müller, Haftungsfragen, para. 156).
To summarize, it can be said that climbers who climb a route - in a climbing garden, a via ferrata or an alpine route - act on their own responsibility. It is not permissible to trust that a climbing route is free of defects (see above marginal no. 28, para. III.A). Personal responsibility is diminished where the climbers may legitimately trust in the absence of defects, for example the belaying of a via ferrata, which is based precisely on the principle that no further belaying is required (Müller, Haftungsfragen, para. 158).
2. Liability of the property owners
The property owners are liable for a defective building or other structure. Therefore, the question of passive legitimation arises first. Owners of land not suitable for cultivation, such as rocks and thus of the material used for bolting a climbing route in the rock (bolts, belay stations) are usually the communities (Art. 644 Para. 2 CC in conjunction with Art. 671 Para. 1 CC). However, development and, if necessary, maintenance of climbing routes are usually not carried out on behalf of the community, but result from the initiative of private individuals. Even if today in many cases the route developer, year of development and information regarding maintenance are known in climbing guides and on Internet portals (see https://www.rebolting.ch), it cannot be assumed that these persons are also the owners of the builduing or structure. If one considers the purpose of a climbing route, the interest of the developers as well as of the communities, it seems problematic to consider both developers and communities as owners of the buildings or structures (Müller, Haftungsfragen, para. 136). In the case of via ferratas and climbing gardens, it is more likely that owners of the buildings and structres can be identified. Especially via ferratas or climbing gardens at mountain railroads or mountain huts often have operators who are recognisable to third parties (cf. e.g. https://www.engelberg.ch/sommer/klettersteige-klettern/klettersteige, https://grindelwald.swiss/de/sommer/sehen-und-erleben/wandern/klettersteige/, https://www.valais.ch/de/aktivitaeten/sommersport/klettersteige, https://jungfrauregion.swiss/de/sommer/sehen-und-erleben/aktivitaeten/klettern/klettergarten-riggli/). In these cases, a passive legitimation of the operators is probably indicated, even if they are not land owners (cf. on the discrepancy between property law and liability law ownership BK-Brehm, Art. 58 OR N 5 ff.). In the case of climbing gardens without perceptible operators, it is more likely that the public authorities have the capacity of being sued (Müller, Haftungsfragen, para. 159).
In summary, it can be stated that a claim by climbers who have had an accident on climbing routes against the owner of the building or the structure is unlikely to be enforceable. If the owners can be identified, liability will probably fail due to the criteria of the purpose of the climbing route, the reasonableness of safety measures and the climbers' own responsibility. In connection with information in climbing guides and on websites regarding route development, safety measures, maintenance, rock quality, etc., it must be taken into account that this information is often not provided by the route developer. This also does not give rise to a claim that the climbing route is free of defects (see also Müller, Haftungsfragen, para. 137).
In the case of via ferratas and climbing gardens, it is likely that operators can be identified as the owners of the building or structure. Due to the different purpose, liability is more likely to be assumed. But also in the case of climbing gardens and via ferratas, the criteria of the reasonableness of safety measures and the personal responsibility of the climbers apply. Liability on the part of the owner of the building or structure will only apply in the case of gross defects (cf. also Müller, Kletterausflug, p. 109).
3. Excursus artificial climbing facilities
With the rapid development of sport climbing, artificial climbing facilities (climbing halls, climbing walls on playgrounds or in sports halls, etc.) are also gaining in importance. Artificial climbing facilities are clearly buildings or other structures in the sense of the property owner's liability. It will also be easy to identify operators of sports facilities. Consequently, owners or operators of an artificial climbing facility must take all necessary and reasonable precautions to avoid damage. The DIN EN 12572 series of standards also defines minimum requirements for artificial climbing facilities and their belay points, as well as for bouldering walls and climbing holds (cf. also Beratungsstelle für Unfallverhütung, p. 2). Property owner liability is more likely to apply to artificial climbing facilities, as there are clear requirements and safety standards that must be met. However, even with artificial climbing facilities, people are basically climbing on their own responsibility and a residual risk remains. If an artificial climbing facility is used in return for payment, contractual liability will also have to be examined (see below no. 52 ff., para. D).
D. Contractual liability and confidential liability
The prerequisites for contractual liability are the existence of a contract, damage, a breach of contract, causality and fault. Contractual and non-contractual liability are concurring claims.
1. Requirements for liability
With regard to damage, causality and fault, reference can generally be made to the comments on fault liability (see above no. 30 ff., para. III.B.1). In contrast to non-contractual liability, a reversal of the burden of proof applies to contractual liability. Fault is presumed (Klaus/Meyer, p. 389 f.). The obligor has the burden of proving exculpation (Art. 97 para. 1 OR).
The formation of a contractual obligation requires the concurring mutual expressions of intent by the parties (BK-Müller, Art. 1 OR N 195). Specifically, this means an express or implied mutual expression of intent, consensus, agreement on the essential points of the contract and the legal capacity of the parties (majority and capacity to judge). Compliance with any formal requirements must also be observed (see Schwenzer/Fountoulakis, margin no. 27.01 et seq. for more details). An obligor who fails to discharge an obligation at all or as required must make amends for the resulting damage unless he can prove that he was not at fault. (Art. 97 para. 1 OR). Even if Article 97 OR extends to all obligations, it primarily concerns obligations that were established by contract. The breach of duty within the meaning of Article 97 OR is usually equivalent to a breach of contract.
In addition to the contractually agreed obligations, the duties of care as a core element of the contractual secondary terms has to be mentioned (BK-Werner/Emmenegger, Art. 97 OR N 25 ff.). Compensation for damages due to breach of due diligence (so-called liability of trust) does not necessarily require a contractual relationship. In order for a claim to arise, a special legal relationship, the impossibility or unreasonableness to conclude the contract, the justification of an interest worthy of protection as well as an unfaithful betrayal of trust are required. The liability for breach of trust is located between contract and tort.
However, the Federal Supreme Court attaches strict conditions to liability arising from aroused and disappointed trust. Protection is not deserved by those who merely become victims of their own imprudence and trustfulness or the realization of general business risks, but only by those whose justified trust is abused (judgment 4A_299/2015 of February 2, 2016 E. 3.3 m.f.V). With regard to rock climbing, this can primarily be thought of duties to inform, educate or warn in favor of climbers (see also Müller, Haftungsfragen, para. 102).
2. Liability of the climbing instructors/organizers
If a person or a group is guided by climbing instructors, a contractual relationship (order according to Art. 394 OR) can be assumed. As agents, climbing instructors as well as organizers are liable for the diligent and faithful performance. They are liable to pay compensation to the guest if the latter is damaged by careless or unfaithful execution of the business entrusted to them (BK-Fellmann, Art. 394 OR N 216 ff.). The contractually owed performance of climbing instructors or organizers is therefore that the climbing tour is carefully prepared and guided. This is done with the best possible avoidance of all dangers for the guests (Müller, Haftungsfragen, para. 295). As already mentioned above, multi-pitch climbing as well as climbing via ferrata are considered high-risk activities in the sense of the High-Risk Activities Act (see above no. 37, para. III.B.3). The law does not establish a separate element of liability, but specifies various duties of care that can be used in the examination of a possible breach of the due diligence (cf. Art. 2 para. 2 RiskG).
Climbing instructors are therefore liable if they breach their due diligence, e.g. if they carry out a tour despite bad weather conditions, or if they insufficiently instruct, correct or supervise inexperienced climbers (cf. also the duties of care according to Art. 2 para. 2 RiskG; cf. also Winkler/Brehm/Kaltmeier, p. 111). Regarding a possible liability of the organizer, the selection, supervision and instruction of the climbing instructors and the selection of the climbing tours as well as the tour description will be decisive (Müller, Kletterausflug, p. 112). However, the climbers' own responsibility will always have to be set against the climbing instructors' or the organizers' due diligence.
3. Liability of the route developer/operator
In the case of a single climbing route, there are hardly any conceivable cases in which there is a contractual relationship or a special legal connection (liability based on trust) between the climbers and the person bolting or maintaining the route (Müller, Haftungsfragen, para. 138).
However, there are via ferratas and climbing gardens that are only open for a fee or, for example, to club members (e.g. the Palestra di Roccia climbing garden in Belinzona https://www.ticino.ch/it/commons/details/Palestra-di-Roccia-San-Paolo/85221.html). In such cases, a contractual relationship can be assumed. The requirements for the contractually established duties of care correspond roughly to those of the property owner's liability (Müller, Haftungsfragen, para. 162; Müller, Kletterausflug, p. 111). As far as it is reasonable and proportionate, it can be assumed that the operator regularly checks the via ferrata or the climbing garden, if necessary additionally after storms, provides information, if necessary closes the way.
E. Appreciation
The question of liability will always depend on a strict case-by-case assessment. The principle of personal responsibility plays an important role. Liability can only be established in the event of gross breaches of the due diligence.
However, the development of climbing into a popular sport must also be taken into account in terms of contractual and non-contractual liability. Compared to the past, many people with different ambitions and levels climb today. Through various channels (climbing guides in book form or online, websites, climbing apps, etc.), a wealth of information is available regarding climbing routes, rock quality, safety standards, maintenance, etc.. It is not always apparent whether this information provides personal opinion or official information. However, it seems clear that climbers may rely on this information to a certain extent and trust its accuracy. Conversely, this means that those who publish information about climbing routes, climbing gardens and via ferratas assume a responsibility towards their users. In order to exclude possible liability claims, it seems crucial that the persons/organizations publishing information clarify in which role this information is generated (purely personal perception; association that quasi-officially evaluates and/or maintains climbing routes; publisher that offers climbing and via ferrata guides in paper form and online for a fee; operator that informs about opening of the via ferrata; etc.). To remind climbers of their own responsibility, this information should always be supplemented with a generally accepted and meaningful scale for the seriousness of climbing.
IV. Criminal law
Climbing accidents can have consequences not only under civil law but also under criminal law. In this context, criminal offences against life and limb (intentional or negligent assault [Art. 122-125StGB], act of aggression [Art. 126 StGB] and, in the worst case, intentional or negligent homicide [Art. 113 and 117 StGB]) can be considered. Failure to offer aid in an emergency (Art. 128 StGB) must also be observed.
A. Prerequisites for criminal liability
The prerequisites for criminal liability are, in principle, the commission of the offense (objective and subjective elements of the offense), the unlawfulness and the guilt.
The fulfillment of the objective elements of the offense, namely the violation of life and limb, as well as the legal responsibility of the person concerned (ability of the person concerned to appreciate that his act is wrong, Art. 19 para. 1 StGB) should normally be given in the case of sports accidents. The subjective elements of the offense and the unlawfulness must be examined (Hügi, para. 19; Arter/Gut, p. 93).
If an accident is mentioned, it may be assumed that negligence (Art. 12 para. 3 StGB) or at most conditional intent (the realisation of the act is considered as being possible and accepted, cf. in this regard BGE 134 IV 26 E. 3.2.2) is possible. Whether there is conditional intent or negligence depends, among other things, on the severity of the breach of the due diligence and on how easily the risk known to the person concerned can be realized. In determining the permissible conduct and the due diligence to be respected, the relevant "rules of the game" are also of particular importance. The more clearly the rules of conduct and the rules of the game are violated, the less one can speak of the realization of a risk inherent in the sport, which can justify criminal liability on the part of the person concerned (Hügi, para. 22; Arter/Gut, p. 101; Kocholl, p. 22).
As in the case of civil liability, there is no unlawfulness in the case of criminal offences if there is a justification. In the case of sporting activities, the consent of the athletes to the risk inherent in the sport and thus the awareness that they could be injured must be considered (Hügi, para. 23; Arter/Gut, p. 101). According to the case law of the Federal Supreme Court, consent can no longer be assumed if a rule of conduct or a rule of the game, which is intended to protect the athletes, is intentionally or grossly disregarded (BGE 134 IV 26 E. 3.2.4; BGE 121 IV 249 E. 4).
B. Criminal liability of climbing partners
Relevant behavior on the part of the climbing partners can be assumed if the applicable climbing rules are clearly violated. This may involve negligent behavior on the part of the belayer (brake hand error, inattention, incorrect handling of the belay device, etc.) as well as on the part of the climber (omitting to clip the rope, climbing too close together or side by side, use of a recognizable or known loose rock as a hold, etc.).
Constellations are also conceivable on via ferratas that may be relevant under criminal law. For example, it is recommended that only one person climbs between two anchors at any given time (Winkler/Brehm/Kaltmeier, p. 132). Nevertheless, people often climb too close together. In this case, it is the person following too close who is acting unlawfully and not the person who falls (Kocholl, p. 20).
C. Criminal liability of climbing instructors
Climbing instructors will also have to answer to criminal law if they can be subjectively proven to have engaged in criminally relevant conduct and this conduct is unlawful.
As with civil liability, criminal liability can also be assumed more readily than for peer climbing partners, since climbing instructors have a so-called guarantor status. The duties arising from the guarantor position are the counterpart to the due diligence under civil law (Arter/Gut, p. 96).
Since multi-pitch climbing as well as climbing via ferrata are subject to the High-Risk Activities Act (Art. 6 para. 1 and 4 RiskV; see also above no. 37, para. III.B.3.), the penal provisions of the High-Risk Activities Act also apply. A person who violates the provisions of the High-Risk Activities Act is liable to a fine not exceeding CHF 10,000. Offenses include obtaining a permit by providing incomplete, incorrect or misleading information (Art. 15 para. 1 let. a RiskG) or working as a guide without a licence (Art. 15 para. 1 let. b RiskG). With regard to climbing instructors, it should be noted that the criminal provision only applies if an activity within the meaning of the High-Risk Activities Act is offered. Criminal conduct during a course in a climbing garden is not relevant for the High-Risk Activities Act.
D. Criminal liability of the organizer/property owner
In terms of criminal liability, the organizer and the property owner can be considered together. Organizers as well as facility owners have a guarantor position, i.e. the criminally relevant duty to avert all dangers and damages or to keep a certain source of danger under control. The limits of the duty to prevent are to be found on the one hand in the reasonableness and on the other hand in acting at one's own risk or in the self-fault of the athletes (Arter/Gut, p. 94 f.).
The organizer of climbing tours as well as the property owner of a climbing garden or a via ferrata are responsible for the selection and instruction of the personnel, the use and inspection of material, as far as this is reasonable. As with civil liability, the actions of the climbers must also be considered.
E. Appreciation
Climbers, climbing instructors, organizers or property owners are liable, if they commit the offense (objective and subjective elements of the offense), act unlawful and are guilty. In the case of climbing accidents, conditionally intentional or negligent assault or homicide are particularly relevant. With regard to the unlawfulness, the consent of the climbers must be considered in particular, because they accept the risk of injury inherent in the sport by practicing the sport of climbing.
As in civil law, acting at one's own risk, the climber's personal responsibility is an essential aspect of criminal liability. Gross breaches of duty by climbing partners, climbing instructors, organizers or property owners are clearly of criminal relevance. At the same time, the fact that climbers enter the climbing route or via ferrata constitutes a justification or at least a reduction of fault on the part of the perpetrator.
V. Social insurance law
Insurance coverage for climbing accidents is regularly neglected, since an accident is probably neither planned nor welcome. Enclosed is only a general discussion of the possibility of benefit reduction or denial.
A. Reduction and denial of benefits
Accident insurance may reduce or even refuse benefits if the insured person has taken a risk (Art. 39 UVG). Risks are understood as actions by which the insured person exposes himself to a particularly great danger without taking or being able to take precautions to limit the risk to a reasonable level (Art. 50 para. 2 UVV). The aforementioned legal norms try to balance the interest of all insured persons (the premium payers) and the worthy of protection of an activity (e.g. sport; see BSK-Brunner/Vollenweider, Art. 39 UVG N 8).
A distinction is made between absolute and relative risks. In the case of a climbing accident, it will have to be examined in the individual case whether a reduction of the risk would have been possible according to the personal abilities and the type of execution and whether this was omitted (in detail BK-Gehring, Art. 39 UVG N. 71 ff.; BSK-Brunner/Vollenweider, Art. 39 UVG N 49 ff.; see also Müller, Bergsportkommentar, para. 65 et seq.).
According to the wording of Article 50 Paragraph 1 UVV, in the case of risks there is the possibility of a reduction in benefits by 50% or a complete refusal of benefits, whereby the latter presupposes a particular fault or a particular severity of the risk (Judgment 8C_683/2010 of November 5, 2010).
B. Climbing as a risk
There is no conclusive list of absolute or relative risks. The Ad Hoc Commission on Accident Insurance maintains a non-binding list of activities that can be used as a guideline (https://www.svv.ch/sites/default/files/2018-08/83-05-Wagnisse_Anpassung%202018D.pdf). According to this list, climbing can be classified as a relative risk if the usual rules and precautions are seriously disregarded.
Whether a climbing accident results in a reduction or even a denial of benefits depends on the personality of the insured person, the manner in which the act was performed, and the circumstances under which the act was performed. The dangerousness of the act is then assessed individually in relation to the acting person (BK-Gehring, Art. 39 UVG N 89). Climbers will thus have to reckon with a reduction in accident insurance benefits if their training, preparation, experience/skills and equipment did not correspond to the selected route and the expected conditions (Müller, Kletterausflug, p. 112 f.). However, the requirements for a reduction in benefits must be set very high. In one of the few cases judged by the Federal Supreme Court, a risk was denied even though a fatal accident had occurred after one of the climbers climbed off the climbing route by accident and, to avoid to climb back, climbed about 15m beyond the last safety bolt (BGE 97 V 72).
VI. Summary remarks
Climbing has developed into a popular sport in recent decades. It is no longer only extreme athletes who dare to climb the rocks. Well-secured climbing routes, climbing gardens and via ferratas enable a large number of people to climb rock faces. The ambitions, skills and knowledge of climbers are as varied as the climbing routes. That accidents can occur while climbing is a fact. However, the fact that Swiss courts rarely have to deal with civil or criminal liability issues in climbing shows that the basic principle of personal responsibility is recognized and lived. Climbers, whether professionals or amateurs, act at their own risk and must be aware of the risks involved in climbing.
The principle of personal responsibility ends, however, where others (climbing partner, climbing instructor, organizer, operator of climbing facilities, third parties) grossly disregard their due diligence or violate the legitimate trust of others. Today's information channels must also be taken into account. Compared to the past, information on climbing routes, rock quality, route maintenance, ratings, etc. can be accessed via various channels. Even if climbers always act on their own responsibility, information on climbing routes and via ferrata can justify trust. Due diligence therefore also apply to the provision of information and not only to behavior on the rock. In the end, it will always have to be clarified in the specific individual case whether a due diligence has been disregarded or a justified trust has been violated and what the situation is with regard to personal responsibility.
It remains to hope that personal responsibility will continue to be emphasized in climbing in the future, so that civil or criminal liability disputes do not eclipse the sporting challenge and put the brakes on the development and maintenance of climbing routes, climbing gardens and via ferrata.