Kommentarwerk Bergsportkommentar

Hiking

Nov 18, 2022 von Miro Vuille

Disclaimer: This version is a www.DeepL.com machine translation of the original German text and is intended to give the reader an overview of the contents. Only the German version is authoritative; the translated form of this text may not be quoted. 


Suggested citation for the original German text: Miro Vuille, Wandern, in: Anne Mirjam Schneuwly/Rahel Müller (Hrsg.), Bergsportkommentar, https://bergsportkommentar.ch/wandern, 1. Aufl., (publiziert am 18. November 2022).
 

  1. General Information
    1. Introduction
    2. Basics
  2. Private law
    1. Liability of the hiking guide
      1. Hike leaders
      2. Liability
        1. Due diligence
        2. Case law
    2. Liability of the Tour Guide
      1. Tour leaders
      2. Liability
        1. Due diligence
        2. Case law
    3. Liability towards third parties
      1. Direct damage by third parties
      2. Obligation to provide assistance
    4. Liability of the owner of the works
      1. Work owner liability
        1. Werk
        2. Mangelhaftigkeit
        3. Passivlegitimation
      2. Further bases of liability
      3. Case law
  3. Criminal law
    1. Assault / homicide through negligence
    2. Case law
  4. Social insurance law
    1. Entitlement to accident insurance benefits
    2. Benefit reductions/denials
    3. Case law
  5. Specific issues
    1. Encounters with animals
    2. Closure of hiking trails

Bibliography

Benisowitsch, Gregor, Die strafrechtliche Beurteilung von Bergunfällen, Diss. Zürich 1993; Bergamin, Patrick, Haftung des Bergbahnunternehmens bei Sommersport-Unfällen im Einzugsgebiet der Bahn, Diss. St. Gallen 2000; Berger, Max B., Der Fall Taubenlochschlucht – Fahrlässige Tötung durch unterlassenen Unterhalt, Jusletter vom 6. November 2006; Brehm, Roland, Berner Kommentar, Die Entstehung durch unerlaubte Handlungen, Art. 41–61 OR, 5. Aufl., Bern 2021 (zit. BK-Brehm); Bütler, Michael/Stiffler Hans-Kaspar, Sportunfall – insbesondere Haftung beim Schneesport, in: Weber, Stephan/Münch, Peter (Hrsg.), Haftung und Versicherung, Basel 2015, S. 807 ff.; Bütler Michael, Gefahrensatz und Verkehrssicherungspflichten im Bergrecht, in: Klett, Barbara (Hrsg.), Haftung am Berg 2013, Zürich 2013: S. 35 ff. (zit. Gefahrensatz und Verkehrssicherungspflichten); Bütler Michael, Zur Haftung von Werkeigentümern und Tierhaltern bei Unfällen auf Wanderwegen, Sicherheit & Recht 2/2009, S. 106 ff. (zit. Haftung auf Wanderwegen); Christen, Rita, Gutachten bei Bergunfällen, HAVE 2015, S. 268 ff.; Dannegger, Karl, Die Rechtsfragen der Bergsteiger und der Skifahrer, Zürich 1938; Ermacora, Andreas, Die Haftung von Sportlehrern und Bergführern in Österreich, SpuRt 1/2015, S. 10 ff. ; Erni, Franz, Unfall am Berg: wer wagt, verliert!, in: Klett, Barbara (Hrsg.), Haftung am Berg 2013, Zürich 2013, S. 15 ff.; Fischer, Adrian/Lamprecht, Markus/Bürgi, Rahel, Wandern in der Schweiz 2020, Bundesamt für Strassen ASTRA / Schweizer Wanderwege (Hrsg.), Bern 2021; Fontana, Katharina, Bundesgericht, Urteil 6B_235/2020 vom 1. Februar 2021, SJZ 117/2021 S. 401 ff.; Gerber, Andreas, Strafrechtliche Aspekte von Lawinen- und Bergunfällen unter Berücksichtigung der schweizerischen Gerichtspraxis, Diss. Zürich 1979; Hogrefe, Juliane, Mountainbiken, in: Schneuwly, Anne Mirjam/Müller, Rahel (Hrsg.) Bergsportkommentar 2022; Kern, Markus, in: Waldmann, Bernhard/Belser, Eva Maria/Epiney, Astrid, Basler Kommentar, Bundesverfassung, 1. Aufl., Basel 2015 (zit. BSK-Kern); Kessler, Martin A., in: Widmer Lüchinger, Corinne/Oser, Davi, d (Hrsg.), Basler Kommentar, Obligationenrecht I, 7. Aufl., Basel 2019 (zit. BSK-Kessler)Krauskopf, Frédéric, Der Auftrag, in: Präjudizienbuch OR. Die Rechtsprechung des Bundesgerichts (1875–2020), Gauch, Peter / Stöckli, Hubert (Hrsg.), Zürich 2021, S. 1128 ff.; Kraemer, Raphael, Die Krux mit Art. 43 SVG, Strassenverkehr 2/2016, S. 16 ff. (zit. Strassenverkehr); Kraemer Raphael, Verkehrsregelungen auf ausserordentlichen Verkehrsflächen, Unter Berücksichtigung der Geltung des SVG auf Skipisten Wanderwegen, Diss. Freiburg 2015 (zit. Verkehrsregelungen); Kaiser, Martin/Ferreiro, Javier, Sozialversicherungsrechtliche Aspekte des Unfallbegriffs und des Wagnisses im Sport – eine Übersicht über die Rechtsprechung (2. Teil), SZS 2014, S. 20 ff.; Lamprecht, Markus/Bürgi, Rahel/Stamm, Hanspeter, Sport Schweiz 2020. Sportaktivität und Sportinteresse der Schweizer Bevölkerung, Bundesamt für Sport BASPO (Hrsg.), Magglingen 2020; Lustenberger, Erik, Die Eigenverantwortung im Alpinismus, in: Klett, Barbara (Hrsg.), Haftung am Berg, Zürich 2013, S. 115 ff.; Meyer, Ulrich, Probleme des Unfallbegriffs bei sportlichen Betätigungen, LBR Band/Nr. 14 2007, S. 39 ff.; Munter, Werner, 3x3 Lawinen, Risikomanagament im Wintersport, Vernamiège 2014; Müller, Rahel, Die neue Risikoaktivitätengesetzgebung – was erwartet uns per 1. Januar 2014, Sicherheit & Recht, 2/2013, S. 94 ff. (zit. Risikoaktivitätengesetzgebung); Müller, Rahel, Haftungsfragen am Berg, Diss. Bern 2016 (zit. Haftungsfragen); Müller, Rahel, Vorbemerkungen zu den Sportarten, in: Schneuwly, Anne Mirjam/Müller, Rahel (Hrsg.), Bergsportkommentar (zit. Bergsportkommentar); Niggli, Marcel Alexander/Maeder, Stefan, in: Niggli, Marcel Alexander/Wiprächtiger, Hans, Basler Kommentar, Strafrecht, 4. Aufl., Basel 2019 (zit. BSK-Niggli/Maeder); Oser, David/Weber, Rolf H., in: Widmer Lüchinger, Corinne/Oser, David (Hrsg.), Basler Kommentar, Obligationenrecht I, 7. Aufl., Basel 2019 (zit. BSK-Oser/Weber); Portner, Carlo, Rechtliches aus dem Bergführer-, Skilehrer- und Bergrettungswesen, Haldenstein 1988 (zit. Rechtliches); Portner, Carlo, Haftung für Unfälle auf Wanderwegen, Schriftenreihe Umwelt Nr. 266 BUWAL, Bern 1996 (zit. Haftung); Rey, Heinz/Wildhaber, Isabelle, Ausservertragliches Haftpflichtrecht, 5. Aufl., Zürich/Basel/Bern 2018; Seferovic, Goran, Die Haftung des Gemeinwesens für Schäden durch Naturgefahren auf Wanderwegen zwischen Werkeigentümer- und Staatshaftung, Sicherheit & Recht 1/2018, S. 48 ff.; Stiffler, Hans-Kaspar, Schweizerisches Schneesportrecht, 3. Aufl., Bern 2002; Verde, Michel, Straftatbestände als Schutznormen im Sinne des Haftpflichtrechts, Diss. Luzern 2014; Vogel, Stefan, Verfassungsrechtliche Zulässigkeit von Mischverkehr auf Fuss- und Wanderwegen, Sicherheit & Recht 1/2021, S. 23 ff.

Materials

BBI 1983 IV 1 ff., Botschaft zu einem Bundesgesetz über Fuss- und Wanderwege (FWG); BBI 2009 6013 ff., Bericht der Kommission für Rechtsfragen des Nationalrates zur Parlamentarischen Initiative, Rahmengesetz für kommerziell angebotene Risikoaktivitäten und das Bergführerwesen; Bergnotfälle Schweiz 2021, Zahlen und Auswertungen, Schweizer Alpen-Club SAC; Die rechtliche Stellung von Tourenleiterinnen und Tourenleitern des SAC, Schweizer Alpen-Club SAC, 2011; SAC Berg- und Alpinwanderskala, Schweizer Alpen-Club SAC; Empfehlungen zur Anwendung von UVG und UVV Nr. 5/83, ad hoc-Kommission Schaden UVG.

I. General Information

A. Introduction

Hiking is understood as a sporting discipline without a competitive character, in which a certain distance is covered on foot (Bergamin, p. 7). This discipline is considered the most popular and most widely practiced sport in Switzerland (Lamprecht/Bürgi/Stamm, p. 23). More than half of the Swiss resident population aged 15 years and older (not to mention the numerous, approximately 300,000 tourists) hike in Switzerland every year (Fischer/Lamprecht/Bürgi, p. 6).

Unfortunately, accidents are also on the rise when it comes to hiking. For the year 2021, the Swiss Alpine Club SAC recorded by far the most emergencies for mountain hikes compared to the other mountain sports. Of a total of 3,680 mountain emergencies in which mountain walkers called on the assistance of the mountain rescue services, 1,525 mountain emergencies were registered for mountain hikes alone (Bergnotfälle Schweiz 2021, p. 1 f.).

Legal questions arise in a large number of such mountain emergencies. Who is liable for the damage caused? Has criminal conduct been committed? Is there a claim to insurance benefits, or are there restrictions? In view of the numerous accidents and the legal follow-up questions, a legal examination of the popular sport of hiking is needed.

B. Basics

The starting point for the assessment of legal questions concerning hiking trails is the Federal Constitution. Art. 88 of the Federal Constitution empowers the Confederation to enact framework legislation, whereby an adequate and safe infrastructure for footpaths, hiking trails and cycle paths is to be made possible by means of construction and maintenance (cf. BSK-Kern, Art. 88 BV N 2 and 5; Kraemer, Verkehrsregelung, para. 80; BGE 129 I 337 E. 1.2). Based on its competence, the federal government enacted the Federal Law of 4 October 1985 on footpaths and hiking trails (FWG). The law distinguishes between footpaths (Art. 2 FWG) and hiking trails (Art. 3 FWG). Differentiation is made according to the function and location of the connection (BBI 1983 IV 1, 8), whereby the same regulation of footpaths and hiking trails does not result in different legal consequences (BGE 129 I 337 E. 3.3). Art. 3 FWG, which is relevant for hiking trails, reads as follows:

1 Hiking trail networks are primarily for recreation and are generally located outside of the settlement area.
2 They include trails connected to each other in an expedient manner. Other trails, portions of footpath networks, and lightly traveled roads may serve as connectors. Historic trails are to be included wherever possible.
3 Hiking trail networks provide access in particular to areas suitable for recreation, beautiful landscapes (vantage points, shores, etc.), cultural attractions, public transport stops and tourist facilities.

Except for short sections (cf. Art. 3 para. 2 FWG), hiking trails have an independent routing (Vogel, p. 26). The hiking trail networks are to be recorded in cantonal (as well as communal) plans (cf. art. 4 para. 1 lit. a FWG; Bütler, Haftung auf Wanderwegen, p. 107 f.; Müller, Haftungsfragen, p. 17). In addition, the cantons must ensure that hiking trails are created, maintained and marked, that these trails can be walked freely and as far as possible without danger, and that public access is legally secured (Art. 6 para. 1 FWG). The cantons can enact corresponding implementation laws (cf. examples in Bütler, Haftung auf Wanderwegen, p. 110 f.).

On the constitutional level, Art. 82 BV is also relevant (Kraemer, Verkehrsregelungen, para. 80). The federal government can regulate not only road traffic but also pedestrian traffic, since the term "road" also includes footpaths (Vogel, p. 25; BSK-Kern, Art. 82 BV N 4; Kraemer, Strassenverkehr, p. 16). However, neither the Road Traffic Act (with the exception of Art. 43 para. 1 SVG; see Hogrefe, para. xx) nor the signalization ordinance (SSV) based on it define hiking trails in more detail. But by means of Art. 115a lit. fSSV, the standard SN 640 829a "Strassensignale" issued by the VSS was declared legally binding.

1. Standard SN 640 829a

The legally binding standard SN 640 829a divides the hiking trail network into hiking trails, mountain hiking trails and alpine hiking trails, defines these terms and describes the respective requirements for users and their signalization as follows:

Hiking trail (item 7.8):

"Hiking trails are generally accessible and usually intended for people on foot. They run as far as possible away from roads for motorized traffic and have as few asphalt or concrete layers as possible. Steep passages are overcome with steps and fall-off points are secured with railings. Streams are crossed on footbridges or bridges."

Requirements for users (item 7.8.1):

"Trails do not place special demands on users."

Signalization (item 7.8.2):

"The signalization of the trails is yellow."

Mountain hiking trail (item 7.9):

"Mountain hiking trails are hiking paths that partly open up impassable terrain. They are mostly steep and narrow and sometimes exposed. Particularly difficult passages are secured with ropes or chains. Streams may have to be crossed via fords."

Requirements for users (item 7.9.1):

"Users of mountain trails must be sure-footed, free from vertigo and in good physical condition, and must be aware of the dangers in the mountains (falling rocks, danger of slipping and falling, weather conditions). Sturdy shoes with non-slip soles, equipment appropriate for the weather, and carrying topographic maps are required."

Signalization (item 7.9.2):

"Signposts are yellow with white-red-white tip, confirmations and markers are white-red-white."

Alpine hiking trail (item 7.10):

"Alpine hiking trails are demanding mountain trails. They lead partly through pathless terrain, over snowfields and glaciers, over scree slopes, through rockfall gullies or through rock with short climbing sections. Structural precautions cannot be assumed and are limited at most to securing particularly exposed places with a danger of falling."

Requirements for users (item 7.10.1):

"Users of alpine trails must be sure-footed, free from vertigo and in very good physical condition, and must be proficient in the use of rope and ice axe, as well as in negotiating climbing sections with the aid of their hands. You must know the dangers in the mountains. In addition to equipment for mountain trails, an altimeter and compass are required, and rope and ice axe for glacier crossings."

Signalization (item 7.10.2):

"The signposts are blue with white-blue-white tip, confirmations and markings are white-blue-white. The information board alpine hiking trail indicates the special requirements at the beginning of the trail."

2. SAC Mountain and Alpine Hiking Scale

The SAC has made a similar differentiation in its "SAC Mountain and Alpine Hiking Scale". Although it does not have the character of a rule, it can nevertheless have legal implications (cf. Müller, Haftungsfragen, para. 13; RiskV Annex 2). The SAC mountain and alpine hiking scale also differentiates between hiking, mountain hiking and alpine hiking, but additionally between different degrees of difficulty (T1-T6).

As can be seen from the division of the hiking trail network into hiking, mountain hiking and alpine hiking trails and also from the fine division by means of difficulty levels, the demands on both the hiking trails and the hikers vary greatly depending on their qualifications (cf. Müller, Haftungsfragen, para. 41).

3. Hiking off the beaten track

The legal basis for hiking off trails is Art. 699 of the Swiss Civil Code. According to this, anyone is allowed to enter forests and pastures, unless the competent authority issues individual, specifically defined prohibitions in the interest of the crops (para. 1). Land that is not suitable for cultivation (cf. Art. 664 ZGB) is treated in the same way as forest and pasture (Bergamin, p. 15). The right of access is restricted where it is not exercised without damage and is thus no longer compatible with the interests of the landowner (BGE 109 Ia 76 E. 3b) or where the cantons, for example, restrict access based on the Forest Act (Art. 14 para. 2 lit. a WG).

II. Private law

Hiking trails are located in the open countryside and sometimes cover rough and challenging terrain, can be steep, narrow and exposed and have natural obstacles. Accordingly, they harbor certain accident risks. In the case of hiking accidents, the question may arise - always taking into account the personal responsibility of the hiker - whether a third party (natural or legal person) is (jointly) responsible for the accident and can be held liable. Possible bases for liability (liability for fault, causal liability, contractual liability and liability based on trust) have already been discussed in the General Section, to which reference is made (see Müller, Bergsportkommentar, para. 36 et seq.).

It should be mentioned at this point that hikers basically act on their own responsibility. Personal responsibility includes the duty to adapt the activity to one's own abilities and physical condition, to make sufficient preliminary clarifications (in particular regarding the choice of route, degree of difficulty and external circumstances such as time of day and weather conditions) and to equip oneself with sufficient equipment and food (cf. Bütler, Haftung auf Wanderwegen, pp. 111 and 116; Müller, Haftungsfragen, para. 34; Lustenberger, p. 123 f.; Bergamin, p. 99 f.). In case of doubt, a hiking tour should be refrained from or aborted if the circumstances worsen (cf. Bergamin, p. 100; Portner, Haftung, p. 130).

Anyone who goes into the mountains does so in principle at his own risk. According to federal court jurisprudence, anyone who recognizes a concrete danger and takes it upon himself or promotes it by his actions acts at his own risk (cf. BGE 117 II 547 E. 3b; BGE 92 II 221 E. 6). Acting on one's own responsibility is relevant for all liability constellations and can lead to a reduction of damages or even to an omission of damages according to Art. 44 OR (Art. 99 para. 3 OR; BSK-Kessler, Art. 44 OR N 4 ff.).

In the case of hiking, the principle must be assumed that there is consent to the unavoidable risk of injury inherent in alpine sports - but not to damage caused by third parties in breach of duty (cf. Müller, Haftungsfragen, para. 30; Bergamin, p. 42 f.; Bütler/Stiffler, p. 847 f.; Gerber, p. 80 f.). According to the principle casum sentit dominus, hikers have to bear the damage from an accident themselves, unless a special liability norm is fulfilled (Bütler, Haftung auf Wanderwegen, p. 111). The possible liability constellations for hiking are discussed below.

A. Liability of the hiking guide

1. Hike leaders

Hiking guides are persons who hold a corresponding federal professional certificate. The hiking guide profession falls under the risk activities legislation (Art. 1 para. 2 RiskG i.V.m. Art. 1 lit. c RiskV; Müller, Risikoaktivitätengesetzgebung, p. 99). In principle, the federal certificate of proficiency for hiking guides only qualifies hikers to organize and lead tours commercially with an additional authorization according to Art. 3 RiskG. It is important to note that hiking guides may only lead tours with a maximum difficulty level of T4 of the SAC mountain and alpine hiking scale (Art. 8 Para. 4 lit. a RiskV), whereby no permit is required for difficulty levels T1-T3 (Art. 3 Para. 1 lit. b RiskV).

As a rule, a contract-like relationship exists between hiking guides and their guests (cf. Müller, Haftungsfragen, para. 295 m.w.H.). However, it is also possible that a guest concludes a contract with an organizer (an association or a mountain school), which in turn has a contractual relationship with a hiking guide (Müller, Haftungsfragen, margin no. 327 ff.; on this triangular constellation, see the following explanations (Tour guides) margin no. 25 ff.).

Due to the contractual relationship, hiking guides and the organizer have special duties of care and loyalty (Art. 398 OR). They are liable to pay compensation if a guest is injured due to careless or unfaithful execution of the agency contract (BSK-Oser/Weber, Art. 398 OR N 24 ff.; Müller, Haftungsfragen, Rz. 295). Accordingly, the contractually owed service consists of a "faultless 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" (Portner, Rechtliches, p. 27).

2. Liability

Hiking guides do not guarantee safety, but rather compliance with the risk standard of their profession (Müller, Haftungsfragen, para. 299; cf. Munter, p. 11). In turn, subjecting the hiking guide profession to risk activity legislation suggests that guiding on hiking trails is not a hazard-free activity. The addition of a hiking guide for a hike transfers part of the personal responsibility (see above para. 12) to the guide, leaving a residual risk inherent in the mountain with the hikers (Müller, Haftungsfragen, paras. 35 and 299; Bütler, Haftung auf Wanderwegen, p. 111; cf. also Bergamin, p. 100). This includes, for example, cases over which hikers have no control, such as unforeseeable stone and rock outcrops, stumbling falls on terrain that cannot be secured, and unforeseeable avalanches and debris flows (cf. Müller, Haftungsfragen, para. 35; Ermacora, p. 11).

a. Due diligence

Contractual liability and tort liability presuppose a breach of duty of care with a comparable standard of care (Müller, Haftungsfragen, margin no. 300). The standard of care is measured according to objective criteria, based on the concrete circumstances of the individual case (Krauskopf, Art. 398 Rz. 2; Rey/Wildhaber, Rz. 1002 ff.).

The duties of care that apply anyway as a result of the contractual relationship (cf. Art. 398 OR) are additionally set out in Art. 2 RiskG (Bütler, Gefahrensatz und Verkehrssicherungspflichten, p. 57). According to Art. 2 para. 1 RiskG, measures are to be taken "which are necessary according to experience, possible according to the state of the art and appropriate according to the given circumstances, so that the life and health of the participants are not endangered". This description is based on the general principle of risk derived by doctrine and jurisprudence from Art. 2 of the Civil Code (BBI 2009 6013, 6031), which states that "anyone who creates or maintains a condition that could harm another is obliged to take the precautions necessary to avoid harm" (Bütler, Haftung auf Wanderwegen, p. 112; Rey/Wildhaber, para. 899 with further references; BGE 121 III 358 E. 4a).

Art. 2 para. 2 RiskG lists a (non-exhaustive) list of duties derived from case law (cf. e.g. BGE 126 III 113 E. 2bb; judgment 4C.296/1999 E. 2b of January 28, 2000; BGE 121 III 358 E. 4a; BGE 125 IV 9 E. 2a; BGE 123 III 306 E. 4; BGE 129 IV 119; BGE 118 IV 130), which now has a preventive effect (Müller, Risikoaktivitätengesetzgebung, p. 97 f.).

According to the catalog of duties, hiking guides must inform customers about special dangers (lit. a) and check whether they have sufficient capacity to perform the chosen activity (lit. b). They must ensure that the equipment is free of defects and that installations are in good condition (lit. c). Furthermore, they have to check the suitability of the weather and snow conditions (lit. d). They must ensure that the personnel are adequately qualified (lit. e) and that they have sufficient personnel for the degree of difficulty and the danger (lit. f). Finally, they must show consideration for the environment and in particular protect the habitats of animals and plants (lit. g).

How far the duties of a hiking guides extend in individual cases depends on the concrete circumstances, in particular on the abilities of the participants and the requirements of the hiking tour. However, the care to be taken is likely to be less extensive than that of mountain guides, as the standard of training, experience and routine are unequal (cf. Müller, Haftungsfragen, para. 322; Dannegger, p. 172; Bütler/Stiffler, p. 829).

b. Case law

As far as can be seen, there is no case law on the liability of hiking guides. However, this may not be surprising due to the still young profession (only since 2011).

B. Liability of the Tour Guide

1. Tour leaders

Tour guides are persons trained by the SAC who conduct guided tours for the SAC and its members (Müller, Haftungsfragen, para. 312). Tour guides do not fall under the risk activities legislation because they do not carry out their activity on a commercial basis but on a voluntary basis (Müller, Haftungsfragen, para. 313 and 320; Bütler/Stiffler, p. 813).

The involvement of an SAC section and a tour leader in a hike creates a triangular relationship with the participating members. A contractual relationship exists between the organizing SAC section and both the tour guide and the participating members. However, there is no contractual relationship between the tour guide and the participating members.

2. Liability

If a liability-relevant accident occurs on the guided tour, the organizing SAC section is directly liable under Art. 97 para. 1 in conjunction with Art. 398 para. 2 CO or Art. 41 CO. Art. 398 para. 2 OR or Art. 41 OR for the conduct of the tour guide, as they are auxiliary persons in the sense of Art. 55 and 101 OR. The SAC section in turn can, if necessary, take recourse against the tour guide (cf. Müller, Haftungsfragen, para. 317). Alternatively, participating members can assert claims of a tortious nature directly against a tour guide based on Art. 41 CO.

a. Due diligence

According to the guide "Die rechtliche Stellung von Tourenleiterinnen und Tourenleitern des SAC" (The legal position of SAC tour guides), tour guides have the following duties (Müller, Haftungsfragen, Rz. 318):

  • Training and further education according to the "Regulations for mandatory training and further education for SAC Tour Leaders";
  • careful tour preparation and planning;
  • conscientious selection of participants;
  • any substitute tours must be within the capabilities of the registered participants and must not be more difficult than the originally planned tour;
  • appropriate grouping;
  • Careful group supervision and monitoring.

Tour guides therefore have "real leadership responsibility", which also leads to an increased duty of care compared to a merely de facto guide (Müller, Haftungsfragen, para. 321; Stiffler, para. 815 ff.). In contrast, the same degree of care may not be demanded of a tour guide as of a mountain guide (Müller, Haftungsfragen, margin no. 322; cf. also Bütler/Stiffler p. 829 f.; Benisowitsch, p. 176 f.; decision of the Cantonal Court Committee Graubünden PKG 1981 No. 26, 77, reproduced in Stiffler, margin no. 816). Due to the parallels in training, it seems appropriate to equate the standard of care with that of hiking guides. Only with regard to a possible assessment of damages can the fact that tour guides perform their activities on a voluntary basis be taken into account in the comparison (cf. Müller, Haftungsfragen, para. 320).

If a tour guide leads a tour whose requirements exceed his or her abilities and no mountain guide is called in, this constitutes a negligence of the duty of care (Müller, Haftungsfragen, para. 322; cf. also Benisowitsch, p. 177; Bütler / Stiffler p. 830).

b. Case law

As far as can be seen, there is no case law on the liability of tour guides in relation to hiking (but cf. cases in relation to skiing in the corresponding contributions Umbricht/Koch, para. xx and Elsener/Wälchli, para. 31 et seq.).

C. Liability towards third parties

Liability is not only conceivable towards persons who have contractually or factually joined together for a hiking tour, but also towards third parties.

1. Direct damage by third parties

The Higher Regional Court of Stuttgart, Germany, dealt with an accident on a mountain hiking trail in which a person fell into a group of hikers who were below on the trail, causing one person who had been hit to fall and later succumb to his injuries (OLG Stuttgart, judgment 3 U 65/06 of July 26, 2006, summarized in SpuRt 4/2007, p. 166 f). The hiking trail ran through steep and rocky terrain and was partially equipped with steel chains on the rocky side. The person who fell first held the hand of the almost four-year-old daughter without holding on to the steel chain herself. The court held that the safety chain also served to protect others and that the person had acted through negligence, since she should have recognized the necessity of holding on.

However, accidents are also conceivable in which stones (Müller, Haftungsfragen, para. 272) or other heavy objects such as backpacks, full drinking bottles, etc. are set rolling and injure third parties underneath. In such constellations, it would have to be clarified in the individual case whether there was any reproachable behavior on the part of the person triggering the accident, i.e. whether the person acted intentionally or through negligence. As a rule, this should be negated, since stones can already become detached or set in motion through the normal use of hiking trails. On the other hand, a breach of duty of care could exist if a hiker wants to throw a backpack or a full water bottle to someone, but throws this object down the slope and thereby injures a person below, although the throwing was not required due to the steep terrain and was not necessary otherwise.

2. Obligation to provide assistance

Under criminal law, everyone is obliged to render assistance to a person, provided that the person in need of assistance is in immediate danger of death and that rendering assistance is reasonable (Art. 128 StGB; BGE 124 IV 18 E. 2a). However, a failure to render assistance may also be relevant under civil law as a tortious (omitted) act within the meaning of Art. 41 OR (Müller, Haftungsfragen, para. 268; Verde, para. 660). The duty to act (BSK-Kessler, Art. 41 OR N 37) and the unlawfulness of the damage is thereby established by the protective norm of Art. 128 StGB (Verde, Rz. 660 m.w.H.).

Anyone who encounters a person in imminent danger of death while hiking and does not provide assistance despite given reasonableness can be held liable on the basis of Art. 41 OR (Müller, Haftungsfragen, Rz. 266 ff.).

D. Liability of the owner of the works

As a rule, there is no contractual relationship between hikers and owners or operators of hiking trails (Müller, Haftungsfragen, para. 98; Bütler, Haftung auf Wanderwegen, p. 111). However, a contractual relationship is possible, for example in the case of use against payment (see examples listed in Müller, Haftungsfragen, para. 100) or in the case of transport by mountain railroads (Bergamin, p. 179 ff.). Nevertheless, in the case of accidents on hiking trails, it is mainly non-contractual bases of liability that must be examined, in particular the liability of the owner of the works according to Art 58 OR.

1. Work owner liability

According to Art. 58 para. 1 CO, the owner of the work is liable for the damage caused by faulty installation or manufacture or by inadequate maintenance of the work.

a. Work

Works in the sense of Art. 58 para. 1 CO are stable, man-made or arranged, structural or technical installations that are permanently connected to the ground, either directly or indirectly (BSK-Kessler, Art. 58 OR N 12; BK-Brehm, Art. 58 OR N 24). This includes, for example, wire fences (BGE 96 II 34), scaffolding that is only temporarily connected to the ground (BGE 96 II 359) or, for example, walls, barriers and protective structures as parts of a road (BGE 106 II 201 E. 2a m.w.V.). Exceptionally, a tree can also become a work by the way it is planted or as a result of artificial alteration (BSK-Kessler, Art. 58 OR N 12b; BK-Brehm, Art. 58 OR N 30). A meadow, however, is not a work (BK-Brehm, Art. 58 OR N 47).

In the doctrine, the opinion prevails that hiking trails have the character of works if they are artificially created by considerable excavations, blasting and filling (terrain changes) or are provided with structural constructions or safety elements (bridges, ladders, stairs, iron bars, handrails, hooks, ropes, metal chains, retaining walls, fences, ditches, pipes, shafts, etc.) (Müller, Haftungsfragen, para. 77; Bütner, p. 123; Bergamin, p. 67; Portner, p. 81 et seq.) (Müller, Haftungsfragen, para. 77; Bütler, Haftung auf Wanderwegen p. 113; Lustenberger, p. 123; Bergamin, p. 67; Portner, Haftung p. 81 ff.). The Federal Supreme Court is also of the opinion that artificially created paths have the character of a work, whereas a merely trodden path does not, even if it is marked (BGE 91 II 281 E. 2). Hiking trails therefore only partially have the character of a work (Bütler, Haftung auf Wanderwegen, p. 113 f.; Lustenberger, p. 123; also Seferovic, p. 51 f.).

b. Deficiency

If a work does not provide the safety required for its intended use, there is a defect in the work, i.e. a defective installation or poor maintenance (BSK-Kessler, Art. 58 OR N 13 m.w.H.). Whether a work is free of defects is determined by objective aspects (BK-Brehm, Art. 58 OR N 55; BGE 122 III 229 E. 5a). If the necessary safety and protective devices exist to ensure safe use, the work is considered free of defects (BGE 116 II 422 E. 1b). However, not all dangers must be prevented. Risks that can be avoided with a minimum of caution may be disregarded (judgment 4A_265/2012 of 22 January 2013 E. 4.1.1; BGE 130 III 736 E. 1.3).

The decisive criteria for determining the defectiveness are therefore the purpose, the reasonableness of safety measures and the personal responsibility of the user of the work (Müller, Haftungsfragen, para. 80 f. and 89; Bütler, Haftung auf Wanderwegen, p. 114 ff.).

The purpose of a hiking trail depends, on the one hand, on its hiking trail category (Bütler, Haftung auf Wanderwegen, p. 114) and, on the other hand, on its concrete use (judgment 4A_244/2010 of July 12, 2010 E. 1.5). For the users of hiking trails, the purpose is to be able to move in free nature and, in the case of mountain and alpine hiking trails, in challenging pre-alpine and alpine terrain (Bütler, Haftung auf Wanderwegen, p. 114). If there is an additional purpose in the concrete use of a hiking trail, this must also be taken into account (see judgment 4A_244/2010 of July 12, 2010 E. 1.5). Furthermore, it should be noted that the use of hiking trails is fundamentally linked to good, snow- and ice-free conditions and to daylight (Müller, Haftungsfragen, para. 84; Bütler, Haftung auf Wanderwegen, p. 114).

One restriction of the security obligation is the reasonableness (BK-Brehm, Art. 58 OR N 58; judgment 4A_265/2012 of 22 January 2013 E. 4.1.1). Security measures are reasonable if they are technically possible and are in a reasonable relationship between the users' interest in protection and the purpose of the work. Likewise, the economic proportionality is to be considered, but not the concrete financial capacity (BK-Brehm, Art. 58 OR N 60 f.; cf. Seferovic, p. 49). If, for example, defects were caused by third parties or natural forces, the decisive factor for the defectiveness is whether it was reasonable to detect and remedy the defect in time (Bergamin, p. 68; Portner, Haftung, p. 86).

The personal responsibility of hikers is again of central importance (Bütler, Haftung auf Wanderwegen, p. 116). According to federal court case law, athletes have to bear the risks inherent in the sport (judgment 4A_235/2007 of October 1, 2007 E. 5.2). Remaining subordinate dangers do not constitute defects of the work if a high degree of attention can be demanded (BK-Brehm, Art. 58 OR N 85), as in the case of hiking. The liability of the owner of the work does not apply even if the work is defective, if it is established that even if the work had been properly maintained, neither the occurrence of the damage would have been prevented nor its effects reduced (BGE 122 III 229, 233 ff.; BSK-Kessler, Art. 58 OR N 6). In accordance with the principle that "individual rockfalls are always to be expected in the mountains" (Lustenberger, p. 124), the residual alpine risk remains with the hikers.

Due to current events, the safety obligations will (unfortunately) have to be discussed again. According to media reports, in the summer of 2022, five people fell on hiking trails in the Alpstein area around the Äscher, not far from each other, and fell down a slope or rock face, injuring themselves fatally (https://www.srf.ch/news/schweiz/zwei-todesopfer-wieder-ein-toedlicher-wanderunfall-im-alpstein). In this regard, the work owners (and possibly the hiking trail operators) will be confronted with the question of whether the Alpstein hiking trails are sufficiently secured.

c. Passive legitimacy

Hiking trails are usually built on behalf of the community (Bütler, Haftung auf Wanderwegen, p. 118) and maintained either by the community itself or by private professional organizations within the meaning of Art. 8 FWG (sections of the Swiss Hiking Trail Association) or private individuals (cf. Portner, Haftung, p. 46). However, according to Art. 58 para. 1 CO, the owner of the work is liable. According to this provision, the liability of the owner of the work is therefore in principle not linked to the person who carries out the maintenance, but to the ownership.

Hiking trails often lead over land that is not suitable for cultivation and are therefore in principle the property of the community (Art. 664 Para. 2 ZGB). In some cases, however, they also lead over land that is suitable for cultivation (Bütler, Haftung auf Wanderwegen, p. 116). It can therefore happen that both the community and natural or legal persons are owners of land over which hiking trails run. By virtue of the principle of accession, the structural measures for the hiking trails, which are usually firmly connected to the ground or rock, are part of the land and belong to its owner (Art. 671 para. 1 ZGB; Bütler, Haftung auf Wanderwegen, p. 117; Müller, Haftungsfragen Rz. 91).

The principle of the landowner's liability is exceptionally deviated from if the work is not within the owner's area of responsibility under liability law (BGE 121 III 448 E. 3c; BK-Brehm, Art. 58 OR N 7 ff.). Thus, the community entitled to the easement is considered to be the owner of the works if a public footpath is constructed on the basis of an easement on a private property and is maintained by the community (BGE 91 II 281 E. 5a; Bergamin, p. 70 f.). However, such a deviation can only be justified for the community and not vice versa for private individuals, since hiking trails always serve the public interest as well (cf. Bütler, Haftung auf Wanderwegen, p. 118 f.; Rey/Wildhaber, para. 1291).

Private individuals are liable if the hiking trail is located on their property and they have created the trail in their own interest, i.e. not on behalf of the community (Müller, Haftungsfragen, para. 94; cf. Bütler, Haftung auf Wanderwegen, p. 118 f.). Whether a private professional organization is involved in the maintenance of the hiking trail is irrelevant for the liability of the community according to Art. 58 OR (Müller, Haftungsfragen, para. 93 and 96). Nor is it decisive for liability under Art. 58 CO whether the hiking trail has been included in the plans (Bütler, Haftung auf Wanderwegen, p. 122 f.).

2. Further bases of liability

If a contractual relationship exists, the owner of the works or the operator of hiking trails may be held liable on the basis of contractual liability (Müller, Haftungsfragen, para. 98 ff.).

In the event of a transport contract with a mountain railway, contractual liability must always be examined in the event of accidents on paths in the catchment area of the mountain railway, since a breach of the contractual secondary obligations can also lead to liability based on Art. 97 para. 1 CO (cf. Bergamin, p. 191 ff.). The Federal Supreme Court left open whether the ancillary obligations of a transport contract with a mountain railroad also include certain protective obligations that concern hiking trails (BGE 113 II 246 E. 6). According to Bergamin, a functional connection between the transport contract and the duty to protect and thus a contractual collateral duty to this effect is to be denied in principle. Exceptions and thus contractual collateral duties exist where the corresponding responsibility has been expressly assumed in the contract, the advertising assigns a certain characteristic to a path or the path serves as a connecting route (Bergamin, p. 193 f.).

As an alternative to the liability of the owner of the work, the owner of the work can also be held liable on the basis of Art. 41 OR (Bütler, Haftung auf Wanderwegen, p. 120 f.). However, tort liability according to Art. 41 CO is likely to be relevant only if the quality of the work within the meaning of Art. 58 CO is denied (BSK-Kessler, Art. 58OR N 4).

The community can be held liable on the basis of cantonal liability laws (state liability) (Bütler, Haftung auf Wanderwegen, p. 122 f.; Müller, Haftungsfragen, para. 97), but only subsidiary to the works owner's liability according to Art. 58 OR (BGE 115 II 237 E. 2c).

3. Case law

In the ruling 4A_244/2010 of July 12, 2010, the Federal Supreme Court examined the liability of the owner of the works after a person fell on an icy section of a mountain hiking trail that led over the property of a mountain railway. As a result of the fall, the hiker sustained multiple fractures to her right forearm and left carpus. The mountain railroad claimed that the mountain hiking trail became a public property by virtue of its dedication, which meant that only the municipality was entitled to passivity. The court held that the mountain railroad was passively entitled under Art. 58 CO, since the section of the path lies on its property, serves as a connecting path from the railroad station and the parking lot to the valley station, and the mountain railroad takes care of the maintenance of the path (E. 1.4). Furthermore, the court considered that for the degree of maintenance not only the designation of the path, but also the concrete use is decisive. If the path is used as a connecting path in the interest of the owner, she can be required to take the necessary precautions for this use. Thus, it would have been reasonable to sprinkle the path with wood chips or to close it off for skiers who caused the icing (E. 1.5 ff.). A personal responsibility was denied (E. 1.6) and the liability of the mountain railway as owner of the works was affirmed.

In the judgment S 02 1921 of the court president 7 of the court district II Biel-Nidau of 18.12.2003 (reproduced in Berger, para. 1 ff.), the court dealt with the criminal liability of a hiking trail operator due to an accident in the Taubenlochschlucht on a well-maintained hiking trail in the immediate vicinity of the city (cf. below explanations on the criminal part, para. 62). The court held that safety obligations can also apply to secondary areas of hiking trails if threats such as falling trees and falling rocks emanate from them for hikers. On the other hand, it denied a safety obligation if there was a danger that hikers would trip over roots or fall from a scaled slope (Berger, para. 24). Although no civil claims were made, the considerations on the duty to secure may also be relevant for the liability of the owner of the works according to Art. 58 OR (Müller, Haftungsfragen, para. 61).

III. Criminal law

For the basics of possible consequences under criminal law in the case of mountain accidents, reference is made to the General Section (para. xy above). In the case of a hiking accident that is relevant under criminal law, the question usually arises as to whether a person involved in the accident has committed the offense of homicide or assault through negligence (Christen, p. 270).

A. Assault / homicide through negligence

According to Art. 12 para. 3 StGB, anyone who fails to consider or disregards the consequences of his conduct. The core of negligence lies in a culpable lack of care (BSK-Niggli/Maeder, Art. 12 StGB N 88). The extent of the duty of care depends on the personal circumstances of the offender (cf. Art. 12 para. 3 sentence 2 StGB). The duties of care thus depend on the one hand on the skills or expertise acquired individually through training or experience (BSK-Niggli/Maeder, Art. 12 StGB N 100; cf. also BGE 98 IV 168 E. 4), and on the other hand also on the role of the migrating person (Christen, p. 270).

Christen states with regard to guides that the duties of care of a professional guide go furthest, somewhat less far those of a volunteer guide and a de facto guide, and least far those of a member of a danger community (Christen, p. 270).

B. Case law

In judgment SK 18 12 of the Superior Court of the Canton of Bern, 2nd Criminal Chamber of January 25, 2019, the Superior Court dealt with a fatal accident involving a girl who fell down the gorge on her way to a rappelling point. The mountain guide was accused of homicide through negligence for failing to guide the two 13-year-old girls down with a rope belay. The trail was a non-official hiking trail that was about waist wide and about 50m long. The path led partly through very steep terrain (up to 40 degrees), had many roots and trees, was partly built with wooden steps and on the valley side ground edge with tree trunks. On the day of the accident, the path was wet and covered with leaves. The Superior Court held that a strict standard of care had to be applied, since it was a matter of a trained and experienced mountain guide (E. 18.1). However, it denied a breach of the duty of care by descending the path without using ropes due to the concrete circumstances (good behavior of both girls before the accident, slow pace, admonitions to walk carefully, constant observation and verbal assistance by the mountain guide) and finally held that the mountain guide was within the range of permissible risk (E. 19).

Furthermore, in BGE 122 IV 303, the Federal Supreme Court dealt with the duty of care of a class teacher who was on a mountain hike with his sixth grade class and about 20 students and an accompanying person, during which a student slipped on a snow field, fell down and succumbed to his injuries. The Federal Court stated that camp and tour leaders who take children into the mountains must, in principle, meet high duties of care and described the general duties of care as follows: "It is the duty of the guide to carefully check before starting the tour whether, given the given weather and route conditions, the physical aptitude and technical ability of the participants, the planned mountain hike should be carried out at all. He will also make sure that the participants are sufficiently equipped. During a mountain tour or mountain hike, the physical condition of the participants must be taken into consideration and the terrain must be studied in detail. If difficulties arise in the course of the tour, special care is required in any case" (E. 3a). Due to the concrete circumstances (lack of reactions and instructions concerning the snowfields and lack of leading by the guide as well as lack of required physical and character qualities of the child) a violation of the duty of care was affirmed (E. 3b ff.).

In the judgment S 02 1921 of the court president 7 of the court district II Biel-Nidau of 18.12.2003 (see above para. 56), the court dealt with an accident in the Taubenlochschlucht (pigeon hole gorge) in which one child was fatally injured and three other children were injured, some of them seriously. The children were walking together with their mothers on a hiking trail before the group rested on a bench and a few children began to play on an embankment rising in the immediate vicinity with existing trails. Suddenly, several stone blocks came loose, knocking the four children to the ground and causing the injuries. Already some months before, stone blocks fell down in the immediate vicinity of the accident site. Since, despite knowledge of the danger and other relevant circumstances (hiking trail in a local recreation area, available financial resources), no geologist was called in and no safety measures were taken, the court found the president of the association responsible for the trail guilty of homicide, common assault and causing a collapse through negligence.

IV. Social insurance law

A. Entitlement to accident insurance benefits

Employees working in Switzerland are subject to compulsory accident insurance (Art. 1a UVG) and self-employed persons can take out voluntary insurance (Art. 4 UVG). Insurance benefits are generally granted for occupational and non-occupational accidents (Art. 6 para. 1 UVG). On the basis of these provisions, it must be examined whether salvage, healing, loss of earnings, etc. caused by migrant accidents can be covered by accident insurance (cf. Müller, Haftungsfragen, para. 384).

The legal definition of an accident is found in Art. 4 ATSG (Art. 1 para. 1 UVG). According to this, an accident is the sudden, unintentional damaging effect of an unusual external factor on the human body, which results in impairment of physical, mental or psychological health or death. The decisive criterion for the definition of an accident is the unusual nature of the accident. Accordingly, the realization of a risk inherent in the sport does not in principle constitute an accident (Meyer, pp. 47, 55 ff.; Müller, Haftungsfragen, para. 385). Physical injuries similar to accidents (cf. lit. a to h) are covered by accident insurance, provided that the injury is not primarily due to wear and tear or illness (Art. 6 para. 2 UVG).

B. Benefit reductions/denials

The UVG provides for reductions or refusals of benefits if the damage has been culpably caused or if an extraordinary danger or risk has been taken (Art. 37 and 39 UVG). According to the case law of the Federal Supreme Court, skiing, mountaineering and climbing are actions that are in principle worthy of protection (BGE 104 V 19 E. 2; BGE 97 V 72 E. 3). Since hiking is associated with lower risks than the aforementioned sports due to lower speed and (usually) less steep terrain, hiking must also be considered an act worthy of protection.

Sports that are worth protecting and that involve risks can nevertheless be considered relative risks if the necessary precautions to reduce the risks to a reasonable level have not been taken (BGE 112 V 297 E. 1b; BGE 112 V 47 E. 2a and b). The question of whether or not a relative risk exists therefore depends on the individual case and even on the individual stage of action (cf. Erni, p. 22; BGE 97 V 72 E. 6a). In its (non-binding) Recommendation No. 5/83, the ad hoc Commission on Damage UVG states that mountaineering, climbing and snow sports activities off marked slopes constitute relative risks in the event of serious disregard of the usual rules and precautionary requirements of sports. Frequently, therefore, the question that arises in the case of a mountain accident is whether the person has failed to reduce the objectively existing risks and dangers to an acceptable level (Erni, p. 27).

Mountain accidents caused by gross negligence can lead to a reduction of the insurance benefit (Art. 37 para. 2 UVG). Whereas in the case of risk the great danger of the action is in the foreground, for gross negligence the execution of the action is decisive (Müller, Haftungsfragen, para. 406; Erni, p. 25).

C. Case law

In the judgment U 258/04 of November 23, 2006, the Federal Insurance Court was based on a case in which a hiker suffered a fatigue fracture of the heel bone after a long hike due to a hard impact while going downhill in rocky terrain without a secured path with heels up to 1.5 meters high. The Federal Insurance Court denied the unusualness as well as the suddenness, which is why it denied an accident and also an accident-like injury in the sense of the law (judgment U 258/04 of November 23, 2006 E. 3.2 f.).

In judgment U 519 of April 6, 2004, the Swiss Federal Insurance Court dealt with a blister caused by rubbing the feet in narrow mountain boots and subsequent infection below the big toe. The court held that the bacteria responsible for the infection did not enter the body because of an actual injury and that therefore, because of the lack of an unusual external factor, there was no accident (reproduced in RKUV 2004, p. 439 ff.; see also Meyer, p. 61).

In the judgment Schweiz. Unfallversicherungsanstalt v. Squaratti of the Federal Insurance Court of July 23, 1960, the court dealt with a fatal accident on a mountain hike in which a person fell on a steeply sloping, wet grassy slope. The unusual nature and thus the existence of an accident was affirmed. However, since the victim was known to suffer from dizziness and weakness in certain positions, his behavior was qualified as a significant contributory cause of the fall and thus as grossly negligent. The survivor's pension was therefore reduced by 50% (reproduced in EVGE 1960, p. 158 ff.; see also Kaiser/Ferreiro, p. 32; Meyer, p. 61).

In contrast to alpine tours and snowshoe hikes (cf. subsequent articles xy), no court cases of (relative) dangers are known in the case of hikes (on hiking and mountain trails). Nevertheless, such a constellation would be conceivable if, for example, a mountain hike were to be undertaken despite the announcement of a great avalanche danger (Erni, p. 27) or if a hiking trail were to be followed anyway due to a foreseeable danger of a landslide and a corresponding closure.

V. Specific issues

Since hiking routes can involve (not only affectionate) encounters with animals and are sometimes closed due to natural events and hazards or for other reasons, these aspects of hiking still need to be discussed individually.

A. Encounters with animals

As stated earlier, trails may also cross cultivated land. Especially in the case of commercially used pastures, encounters with animals kept by humans may also occur. If injuries caused by animals occur, for example by cows (especially mother cows), bulls, horses, dogs (especially guard dogs), etc., Art. 56 CO serves as the basis for liability (Bütler, Haftung auf Wanderwegen, p. 121). According to Art. 56 OR, liability for damage caused by an animal is "whoever keeps the same, if he does not prove that he exercised all due care in keeping and supervising it according to the circumstances, or that the damage would have occurred even if he had exercised such care". However, liability can only be considered if the damage is due to animal-specific behavior and the animal acted on its own initiative (BSK-Kessler, Art. 56 OR N 8 f.; Bütler, Haftung auf Wanderwegen, p. 121). An animal-specific behavior is no longer present if the owner uses the animal as a "tool" (BGE 64 II 373 E. 1). If the aforementioned prerequisites are not given, a liability according to Art. 41 OR can be examined subsidiarily (BSK-Kessler, Art. 56 OR N 3).

The concrete duties of care according to Art. 56 CO are primarily based on applicable safety and accident prevention regulations. In the absence of statutory or regulatory provisions and even private associations have not issued any generally recognized regulations, it is necessary to examine what level of care is required based on the totality of the specific circumstances (BGE 131 III 115 E 2.1).

In BGE 126 III 14, the Federal Supreme Court dealt with the liability of animal owners. A married couple was with two leashed dogs on a descending hiking trail from the Chasseral, which led through a pasture fenced with barbed wire, where mother cows with their calves were located. When the couple with their dogs entered the pasture through the turnstile, the mother cows approached and began to moo. Frightened, the couple let go of the dogs, which, however, remained near them. The excited cows jostled the couple, knocked them over, and trampled on them, causing them serious injuries. The Federal Court denied the violation of a legal norm or an association regulation and examined, based on a weighing of interests, whether further safety measures could reasonably be required. It considered the effectiveness and disadvantages of a measure, its costs, the probability of the risk occurring and the possible extent of damage to be the relevant criteria. A safety obligation going beyond the existing safety measures, in particular an obligation to put up warning signs, was denied and thus also a liability according to Art 56 OR (BGE 126 III 14 E. 1b; cf. Bütler, Haftung auf Wanderwegen, p. 121 f.).

The Federal Supreme Court dealt with the criminal liability of an accident caused by a bovine animal in its judgment 6B_1084/2009 of July 29, 2010. A wandering person climbed over an electric fence and went to a pasture where there was a herd of cattle. As the wandering person walked past the cattle, he suffered various injuries to his back inflicted by a bovine. Since it could not be proven that the cattle in question had already been viciously aggressive before and that the animal owner had been aware of this, the Federal Court denied a breach of duty of care on the part of the animal owner.

B. Closure of hiking trails

Hiking trails are sometimes within the sphere of influence of natural hazards such as rockfall, rock and landslides, debris flows, landslides, snow and ice avalanches, lightning, heavy precipitation, falling trees during storms, etc., which are events independent of human actions (Bütler, Haftung auf Wanderwegen, p. 115). Such hazards, if then foreseeable, may require trail closures. If foreseeable closures are omitted, they may give rise to liability on the basis of a guarantor status. A possible basis for liability is the liability of the owner of the works (cf. Bütler, Haftung auf Wanderwegen, p. 115) or state liability under a cantonal liability law (cf. Seferovic, p. 54 f.).

The fact that hiking trails can be closed and, under certain circumstances, must be closed, results from the traffic safety obligations according to Art. 58 OR for the owners of works (Bütler, Haftung auf Wanderwegen, p. 116) and from Art. 6 para. 1 lit. b FWG as well as from the general set of hazards (cf. Seferovic, p. 54). If an extraordinary hazardous situation is imminent and the authorities receive credible information in time, an event may be foreseeable. In this case, experts are to be consulted and protective measures adapted to the danger situation are to be taken (Bütler, Haftung auf Wanderwegen, p. 116). In the case of acute, imminent danger to trail users, the authorities must close hiking trails (Seferovic, p. 55), which effectively reduces the liability risk (Berger, para. 46). If hiking trails are not closed, liability should nevertheless only rarely arise due to the purpose of hiking trails and personal responsibility (cf. Bütler, Haftung auf Wanderwegen, p. 116).

In the ruling 6B_235/2020 of February 01, 2021, the Federal Supreme Court dealt with the landslide on the northeast flank of Piz Cengalo in the Bondasca Valley on August 23, 2017, which triggered a flow of debris to the village of Bondo below. Eight people who were on a hiking trail at the time of the landslide have since been considered missing. In the criminal proceedings, the private plaintiffs asserted civil claims against the persons who were allegedly partly responsible for the fact that the affected hiking trails had not already been closed as of August 10, 2017 (see E. 1.3). In doing so, the public prosecutor investigated whether and which recommendations were made to the municipality in the run-up to the landslide and whether the event was foreseeable (E. 2.6.2.). The Federal Supreme Court remanded the case to the public prosecutor's office (see also Fontana, p. 401 ff.), which means that the question of foreseeability is still open.

Recently, a fatal incident occurred on a well-maintained hiking trail, the heavily frequented Badstrasse between Bad Ragaz and the Tamina Gorge. On this hiking trail, a tree trunk fell from a rock face above the trail, fatally injuring two people. According to reports, a visual inspection of the Bad road takes place three times a week (https://www.srf.ch/news/schweiz/weg-zur-taminaschlucht-mutter-und-kind-von-herabfallendem-baumstamm-toedlich-verletzt). Similar to the Piz Cengalo case, the legal question to be asked in this context will be whether the foreseeability of the tree fall was given.