Section 823 (1) of the German Civil Code (BGB): Anyone who intentionally or negligently causes harm to the life, body, health, freedom, property or any other right of another person is obliged to compensate the other person for the resulting damage.
Section 276 (2) BGB: Any action taken without exercising due care shall be deemed negligent.
Section 253 (2) BGB: If compensation is to be paid for injury to body, health, freedom or sexual self-determination, equitable monetary compensation may also be claimed for damage that is not financial loss. (Immaterial damages)
Section 254 (1) BGB: If the damage was caused by the fault of the injured party, the obligation to pay compensation and the extent of the compensation to be paid depend on the circumstances, in particular on the extent to which the damage was primarily caused by one party or the other.
Article 40 (2) 1 of the German Introductory Act to the Civil Code (EGBGB): If the party liable for compensation and the injured party had their habitual residence in the same country at the time of the damaging event, the law of that country shall apply.
On the 5th of September 2004, the defendant went hiking in the Tannheimer Tal area in Austria with her family (husband, father-in-law, two sons and a daughter). They were hiking on a narrow and wet path partially running in serpentines down the mountain. On the mountain side of the path, there were ropes which the hikers could hold onto for safety. Further up the mountain, there had been a fence towards the valley side which ended prior to the place where the accident happened. The daughter was holding onto the rope while the defendant walked behind her, close to the edge, holding her other hand and not holding onto the safety rope. Suddenly, the defendant lost her grip and fell down the slope. A few moments later, she collided with the plaintiff`s husband who was hiking further down the same hiking path. He fell off the path towards the valley side, suffered severe injuries and lost consciousness. After 10 operations in the hospital, he died without regaining consciousness.
The defendant requested that the initial decision be amended so that the case gets dismissed. She found the ruling of the first instance to be overly strict as to the duty she was deemed subject to. Further, she claimed that she did not exhibit negligence by not holding onto the rope as the fence towards the valley side had already stopped, indicating that there was no danger of falling further down the path. In any case, the plaintiff's husband should have held onto the rope as soon as he heard her acoustic warning. The plaintiff requested the appeal to be dismissed. She claimed that the defendant had acted negligently.
The case was tried under German law according to Art. 40 (2) EGBGB because both the defendant and the plaintiff’s husband had their place of residence in Germany. The defendant was held liable pursuant to §§ 823 (1), 253 (2) BGB for violating a duty to maintain safety, granting the plaintiff compensation for injuries suffered by her husband who died in the accident. The duty to maintain safety is a duty of conduct according to which the person who creates a dangerous situation or allows a dangerous situation to persist is obliged to take the necessary precautions to prevent damage to others. The court determined that there are no legally binding rules concerning mountain hiking. It especially considered the UIAA climbing scale which it, however, ultimately dismissed as not applicable to normal mountain hiking as encountered here. In the absence of specific rules, the court relied on the general rule that every hiker must make sure their behaviour does not endanger other hikers while hiking. It concluded that the defendant’s hiking near the valley side of the path does not constitute a violation of her duty to maintain safety as it cannot be proven that this led directly to the accident (since she could have slipped even if she had hiked nearer to the mountain side). Furthermore, it has not been deemed relevant that the defendant’s four-year-old daughter was hiking with them as she did nothing to cause the accident. However, the defendant violated her duty to maintain safety by not holding onto the safety rope provided on the mountain side of the path. The increased risk of falling due to not hiking closely to the mountain side and concentrating on her daughter’s wellbeing made it necessary to adopt safety measures, in particular holding onto the safety rope. Referring back to the ruling of the first instance, the court stressed that the accident would with reasonable certainty have been prevented if the defendant had held onto the rope. The court found that this action was to be expected of the defendant and that other hikers could rely on such increased safety measures to be taken in that particular situation. If it is not taken and other people are harmed in the process, this harm does not fall into the general alpine risks that hikers have to bear. That the fence had already ended prior to the place of the defendant's fall did not indicate that the danger was over, especially considering the path's condition. Not holding onto the rope was deemed negligent as she did not exercise due care. That, when falling, she could hit other hikers further down the path was deemed reasonably foreseeable by the court. It is not necessary to consciously notice other hikers, rather it suffices to recognise the possibility of other hikers on the trail below.
The plaintiff’s husband was not held partly responsible because he did not hold onto the safety rope either. The court argued that it is for each hiker to decide if they want to hold onto the rope or not. Only if special circumstances make it necessary to increase safety measures does a duty to hold onto the rope come into play. In this case, the plaintiff’s husband had no duty to hold onto the rope as no special circumstances have been proven which necessitated such an action. Further, the court mentioned the findings of the first instance where it was determined with reasonable certainty that even if the husband had held onto the rope, he would have fallen anyway, making his decision not to hold the rope not causal. It has further not been proven that the plaintiff’s husband had time to react when he noticed the defendant coming down the mountain. Liability of the plaintiff’s husband can also not be based on claiming that he was hiking at his own risk. “Doing something at one’s own risk” is a legal doctrine which mostly applies to dangerous sports. In climbing, it can be applicable to difficult alpine tours. The doctrine describes a situation where a hiker/climber knowingly starts mountain hiking in a situation with extraordinary risks. This particular hiking path was frequented by many hikers, even inexperienced ones, and did not pose an extraordinary risk which the plaintiff´s husband could knowingly enter into. Furthermore, the court mentioned that he was not even alpine climbing, he was just hiking.
In the end, the court also stressed that it is especially important to look at the particular features in individual cases such as this one to determine liability.
The compensation for injuries suffered amounted to 10.000 €. The court considered especially the mortal fear that the plaintiff’s husband must have felt before losing consciousness, the massive injuries resulting in ten operations and the unsuccessful attempt to wake him up while unconscious. The death itself did not factor into the calculation.
This decision surprised the LAC members who thought that putting all the liability on the falling woman was overly strict. It is probable that courts in other countries would decide differently in this matter. However, one needs to keep in mind that the German court stated that it is crucial to look at the particular circumstances of an individual case. In this case, the defendant was held liable because she did not hold onto the safety rope to ensure her own and other people’s safety, despite the increased risk of guarding her daughter and hiking close to the valley side of the path.
However, the judgement is interesting from many perspectives. It is recognizing the UIAA climbing scale; it explains the nature of the doctrine of "doing activity at one’s own risk” even thougt it eventually does not find it applicable for hiking in this specific case; and it examines the existence of an obligation to hold on to a wire rope while hiking.
After getting dismissed in the Appellate Court, the case was not appealed again at the higher courts. There is also little to no coverage of this particular judgement in legal journals or textbooks, let alone citations of this judgement in other rulings, making the judgement a rather difficult precedent to rely upon.
