OGH on Chairlift Operators’ Liability

Feb 16, 2024 Benn-Ibler Rechtsanwälte

In transportation contracts, the obligation not to harm the physical well-being of passengers is considered a secondary contractual obligation.

The first and second plaintiffs were riding the defendant’s chairlift in January 2018, when the weather suddenly turned bad. Due to strong winds, two chairs came too close to each other at the top of the mountain station and froze together due to black ice. This resulted in an interruption in service for more than an hour.

The plaintiffs sought to recover damages and to hold the defendant liable for future damages arising from the incident, which had resulted in post-traumatic stress disorder caused by the violent rocking of the chair, in addition to frostbite. Their claims were based on breach of the duty of care under the transport contract and of the Austrian Railway and Motor Vehicle Liability Act (Eisenbahn- und Kraftfahrzeughaftpflichtgesetz, EKHG). The defendant’s argument was that the wind warning system had been in working order and that the incident had been an unavoidable event.

The OGH ruled that the defendant had not culpably breached their duty to protect and care under the law. The company’s employees had carried out inspection rides in accordance with the weather forecast and had reacted immediately to the increase in wind and the sudden appearance of black ice.

The defendant could be liable under the EKHG if the damage was caused by an accident during the operation of the chairlift. In the law of strict liability, an accident is understood to be a damaging event that occurs suddenly and from the outside. It is not necessary for there to be physical contact with the vehicle or the presence of any other mechanical force.

According to Section 9 EKHG, if the accident was caused by an unavoidable event that was neither due to a technical defect nor to a failure to exercise due care, the obligation to pay compensation is excluded. The freezing of the wheels due to the formation of black ice, which caused the chairlift’s prolonged standstill, constituted a failure to perform. Consequently, the defendant has no defence in respect of an unavoidable event.

OGH 2 Ob 198/23s (21 November 2023)