Article 117 of the Criminal Code of Switzerland punishes the conduct of a person who, through negligence, causes the death of a person. Three conditions must be met for this offence to be committed: the death of a person, negligence and a natural and adequate causal link between the negligence and the death. Article 12 para. 3 of the Criminal Code of Switzerland provides that a person acts negligently who, through culpable improvidence, commits a crime or offence without realizing or considering the consequences of his act. The improvidence is culpable if the perpetrator did not take the precautions required by the circumstances and by his or her personal situation.
On February 16, 2007 a mountain guide went on a ski touring trip with four clients. About 50cm of fresh snow was registered. The avalanche degree was 3 out of 5. The regional bulletin specifically indicated a risk for isolated individuals to trigger a large avalanche. The guide did not consult the avalanche bulletin on the day of the trip. He only consulted an information board at the start of the ski area. Before the start of the trip, the guide checked the technical level of the participants and then took them off-piste. The route chosen by the guide involved passing through a slope with a gradient of more than 40°. Before leaving on this slope, the guide made his clients aware of the avalanche risk and gave them some safety instructions. The guide went through the slope first. He went slowly down and simply tested the snow with his pole and jumped a few time on his skis. Each client went through de slope after another, the last one triggered an avalanche and died.
The guide (appellant) requested the annulment of the judgment of the previous instance and argued that he committed no crime. He said that only one route was possible because of the topography. On his point of view, he carried out sufficient tests on regard of the risk of avalanche. The guide ended his argument by saying that the victim's behavior interrupted the adequate causal link. According to the guide, his client had taken reckless risks by descending further down the slope and thus leaving the tracks made by the guide. This behavior would have violated the instructions he gave.
In the event of an avalanche accident, the question arises first and foremost as to the predictability of the avalanche risk or the probability of an avalanche triggering. This question must be answered from the perspective of the person responsible for safety at the time of the accident. According to the doctrine and the jurisprudence, before embarking on a ski tour, the race leader is obliged to inform himself about the avalanche danger forecast by consulting the avalanche bulletin published by the Institute for Snow and Avalanche Research (SLF). The SLF issues an interpretation guide which describes the Avalanche Bulletin and the supplementary documents and enables the user to interpret them correctly; this guide also contains rules of conduct for ski tourers. As the SLF has recognized technical and professional expertise in this field, the rules of conduct derived from the Avalanche Bulletin are used as criteria for determining the duty of care to be observed by snow sportspeople. The wording used in the avalanche bulletin is general. Local conditions cannot be assessed in the bulletin, let alone those on a particular slope. Therefore, snow sporters and safety officers must rely on their own assessment methods for the local situation. For example, local snow and weather conditions should be analyzed, the snowpack examined, maps studied, slopes observed directly on the ground and individual risk assessments made. Each decision should be based on all available information; information that leads to the conclusion that conditions are rather unstable is predominant. The only fact of not having consulted the official avalanche bulletin does not lead to a breach of the duty of care. In the present case, the guide informed himself by another way, which was an information board at the start of the route. The Court noted that two different routes were possible to reach the point desired by the guide. One was over a ridge and was safe. The other route, chosen by the guide, was on a steep slope and presented an avalanche risk. By choosing the more dangerous route, the guide breached his duty of care as without any special effort he could have taken the other route. Furthermore, the guide was familiar with the area and therefore knew the degree of avalanche. The court also emphasized that the stick test indicated a layer of powder on top of a layer of compact snow and that for this reason alone the guide should not have taken this route because of its dangerous nature. He was therefore aware of the danger and chose that route anyway. The appellant, who had identified the danger and knew the area, had, as a mountain professional, a particularly high duty of care towards his group; by deciding to cross the fatal slope, despite the foreseeability of an avalanche triggering and the existence of an alternative solution, he had taken an inadmissible risk and committed culpable negligence. The court did not consider that the victim had taken reckless risks. Indeed, the clients who had previously set off down the slope, deviated slightly from the track made by the guide, who said nothing and had no reaction. Consequently, by opting for a route whose potential danger he had recognized and without taking any precautions other than a simple pole test, when he could, without additional effort and without harming the excursion, have passed through a place free of danger, the appellant had taken a risk which exceeded the admissible measure and consequently violated his duty of care. As regards the concomitant fault, the Court noted that the guide had not given clear instructions on the route to be followed and that the victim had not skied much lower than the others. Moreover, even if his behavior had been reprehensible, his fault was not so serious as to appear as the most probable cause of the accident, relegating the guide's responsibility to the background. In fact, the expert report states that the avalanche could have already been triggered when the first skiers passed.
This decision is important from the point of view of the interpretation of the duty of care and concerns the role of the avalanche bulletin under Swiss law. The Court provides the following clarification of the duty of care :
