Accident in a children's ski course, the ski school's duty of supervision and § 1313a ABGB

The ski course contract between parents and the ski school is, under the settled case law of the OGH, not a mere service contract for ski instruction. It contains protective and care duties (Schutzpflichten) which oblige the school to preserve the child's physical integrity. These duties go beyond the pure subject matter of the instruction.

In concrete terms this means: the ski school owes not only competent teaching of skiing technique, but also a slope choice appropriate to the child's age and ability, a group size that ensures individual supervision, a teaching style that sets a FIS-compliant example, and the recognition and prevention of overstraining situations in real time.

Each of these duties is an independent contractual obligation. From the perspective of the parents of the injured child, the relevant point is that the breach of a single one of these duties suffices to establish the ski school's liability in principle. The causal link between the breach and the injury is for the parents to show; the proof of due care is then for the ski school to furnish.

The ski school is liable for the conduct of its ski instructor under § 1313a ABGB. The ski instructor is the school's Erfüllungsgehilfe, deployed to perform the school's contractual obligation. Any fault of the instructor is attributed directly to the school, as if it were the school's own fault. The parents need not prove that the school operator personally made a mistake.

This attribution rule is a central lever for the parents of the injured child. It closes off the argument that the school operator did not know of the instructor's error. § 1313a ABGB creates a guarantee liability for the Erfüllungsgehilfe, which can only be rebutted by demonstrating that the instructor acted with objective due care.

An important delimitation: § 1313a ABGB applies only in the contractual context. If the accident is attributable to a non-contractual situation, for instance because the child had left the ski course and was skiing an unsupervised slope on their own, delict liability under § 1315 ABGB applies instead, with stricter prerequisites. The precise reconstruction of the accident is therefore, from a legal perspective, the first and most important investigative step.

The reversal of the burden of proof under § 1298 ABGB is the most important procedural lever from the perspective of the parents of the injured child. Once the injured child's representative has shown the ski school's objective breach of duty, the burden reverses: the ski school must now prove that it and its instructor applied the requisite care. This proof is difficult to furnish where the circumstances of the accident suggest an overstraining situation, an oversized group or an unsuitable slope choice.

The child's own contributory fault under § 1304 ABGB is, pursuant to the basic rule of § 153 ABGB, in principle excluded for children under 14 (unmündig, lacking legal capacity for delict). An exception is the equitable liability under § 1310 ABGB, which applies if the child is economically capable of bearing the damage and it would be inequitable to leave the injuring party solely liable. In practice, § 1310 ABGB is rarely relevant in children's ski course cases; the operative question is whether an older child near the age threshold had actual discernment at the relevant moment.

Contributory fault of the parents under § 1304 ABGB is possible if the parents enrolled the child in a group that was manifestly unsuitable for the child's ability, if the equipment was manifestly inadequate (no helmet, incorrect binding setting) or if the parents gave the instructor an inaccurate ability declaration. This objection is routinely raised by the ski school's insurer and must be carefully documented and rebutted.

Immediately after the accident: request slope rescue and note the protocol number. Take photos of the accident scene and the terrain where possible. Record the ski instructor's name and the names of other children present. The slope rescue report is a central piece of evidence and should be requested at the earliest opportunity.

From the perspective of the parents of the injured child, the course contract or the ski school's terms and conditions are the first document to secure. This contract defines the scope of the school's obligations, the group size and the protective duties expressly assumed. In addition, the first medical report, the hospital report and all follow-up findings should be retained. The course of recovery determines the quantum of damages and must be comprehensively documented.

An early initial legal assessment is advisable, if only because the limitation period under § 1489 ABGB is three years from knowledge of the damage and the party responsible. For minor injured parties the period may in certain constellations begin only upon attaining majority, but evidence ages quickly: witnesses forget, ski schools change staff, course records are destroyed. Early evidence preservation is economically rational. For supplementary reading on a closely related topic, the post on liability for falls when boarding or exiting a chairlift is recommended where the accident occurred in the lift area.