OGH: Liability for Cycling Accidents on Mountain Bike Trails

Nov 10, 2023 Benn-Ibler Rechtsanwälte

The liability of road owners according to Section 1319a of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) also applies to mountain bike trails. The contractual assumption of maintenance establishes joint ownership. This means that the owner of the trail and the person maintaining the trail are jointly and severally liable.

The plaintiff had a fall with her bicycle on a mountain bike trail and was seriously injured. The defendant is the builder of the forest road and is also in charge of its maintenance for agricultural use. The maintenance of the mountain bike trail proper was contracted to the intervening party.

The agreement between the defendant and the intervener is as follows:

[...]

The [intervener] shall assume in its entirety the liability of the owner of the forest road and of the respective landowner of the adjoining land arising from the use of the road by cyclists. [...]

The [intervening party] shall assume the function of a keeper within the meaning of Section 1319a of the ABGB in relation to the cyclists entitled to use the road [...].

The plaintiff sought damages and a declaration of liability from the defendant. The defendant argued that, although they owned the road, the intervening party had agreed to be held liable for accidents involving cyclists.

The court of first instance dismissed the claim on the grounds that the defendant was neither the road keeper nor the joint road keeper. The court of appeal overturned the decision of the court of first instance. It held that the defendant had built the forest road and had therefore become the keeper of the road in any event. By contractually taking over the maintenance, the intervening party had only become a joint keeper.

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) upheld the decision of the court of appeal, adding the following:

The keeper of a road is the person who bears the costs for the construction and/or the maintenance of the road. By building the forest road, the defendant undoubtedly became its keeper and did not lose their status as keeper by agreeing with the intervening party. The latter became merely the joint keeper.

The maintenance of the forest road remains the responsibility of the defendant themself. It is irrelevant that the obligation to maintain the property applies only to its agricultural use.

As a result, the defendant is liable for the plaintiff’s damages.

3 Ob 90/23s (6 September 2023)