Fall when boarding or exiting a chairlift, claims of the injured passenger

Cable cars and chairlifts fall, under settled case law of the OGH, under the EKHG as operating companies within the meaning of the Act. Liability attaches to the operating hazard: whoever operates such an installation is liable for damage arising within the hazard zone characteristic of that installation, without any fault of the operating staff being required.

Relief from liability under Section 9 EKHG requires what is known as an unabwendbares Ereignis, i.e. an event that could not be averted even with the utmost possible care and that is based neither on a defect in the condition nor on a failure of the functions of the installation. This threshold is high. Under settled case law of the OGH, a technical cause or a staff error during the boarding or alighting process does not suffice to establish relief. The operator bears the full burden of proof for the existence of an unavoidable event.

For the injured passenger this means: under the EKHG track, the passenger need only establish the damage and the causal link with the operation of the installation. The operation of the chairlift and the fall when boarding or alighting are regularly undisputed; the dispute therefore shifts to the question of relief and to the quantum of the damage. The EKHG liability caps must be borne in mind: for severe personal injury they can become relevant in individual cases, which is why parallel contractual claims without statutory caps remain important.

With the purchase of the lift ticket the passenger concludes a carriage contract (Liftkartenvertrag). This contract creates not only the primary obligation, namely the transport, but also comprehensive protective and care duties owed by the operator to the passenger, in particular when boarding and alighting as the most dangerous phases of the journey.

The lift staff at the boarding and alighting station are performing agents (Erfüllungsgehilfen) of the operator. Under Section 1313a ABGB the operator is answerable for the errors of its staff as if they were its own. This covers: failure to reduce chair speed for inexperienced passengers or children, absent or unclear instructions when boarding or exiting, failure to close the safety bar or footrest, absence of active assistance at the valley and mountain station, and failure to slow or stop the installation in time.

Within the contractual liability track, the reversal of the burden of proof under Section 1298 ABGB operates in favour of the passenger. The operator must show and prove that it complied with all reasonable duties of care. An injured passenger who has preserved a complete evidentiary record, comprising slope-rescue protocol, witnesses and lift ticket, is in a substantially stronger position in practice.

Contributory negligence on the part of the injured passenger under Section 1304 ABGB can reduce the operator's liability proportionally. Typical scenarios in practice are: the passenger ignores staff instructions for boarding or alighting, fails to close the safety bar despite an express instruction, boards or alights outside the marked zones, or is inattentive when boarding and fails to prepare for the arriving chair.

From the perspective of the injured passenger it is important to note that contributory negligence is not an automatic consequence of the fall. It must be established concretely which conduct of the passenger was causally relevant and what standard of care was reasonable in the specific situation. A child or an inexperienced person is assessed differently from an experienced skier. Under settled case law of the OGH, contributory negligence is regularly given less weight where passengers were not or inadequately instructed and in the case of children.

Particular attention is warranted for children's ski courses and organised group transport: where the course instructor or lift staff assumed the task of briefing children and failed to do so, the child's contributory negligence regularly recedes behind the operator's breach of duty. For further detail see the post on the duty of supervision in children's ski courses.

Evidence preservation after a chairlift fall follows a clear priority. While still on site: note the name of the installation and station number, time of the fall, witnesses with contact details, photos of the boarding or alighting zone and the installation, details of the lift attendant (name or badge number). The lift ticket is the proof of contract and must be kept; it grounds the reversal of the burden of proof under Section 1298 ABGB and is therefore of procedural value.

The slope-rescue protocol records the time, type of injury and often also the rescue team's assessment of the cause of the fall. It can be requested from the ski area's rescue service. A medical report from the day of the accident documents the type of injury; later reports alone are often insufficient for the causation question.

The limitation period is three years from knowledge of the damage and the tortfeasor (Section 1489 ABGB). A first legal assessment within a few weeks of the accident is advisable, while witnesses are still reachable, photographic material is available and the safety arrangements of the installation are still in their original state. Where a standstill of the lift was the cause of the accident see also the post on chairlift standstill and EKHG liability.