Skiing and snowboarding accident claims: An important Judgment of the Italian Supreme Court [N. 28616 of 20.12.2013] excludes strict liability for the Ski Resort Operator if an accident on the slopes has been caused by excessive speed
In the case of careless and imprudent behaviour of the skier, running down the track at high speed and slamming against the curb, there is no liability of the Ski Resort Operator due to strict liability to preserve "things into its custody". The Ski Resort Operator is not obliged to compensate its customers for any damages suffered from skiing incidents if the real cause of the damage is their reckless behavior.
Under Italian law, there is a long established doctrine of strict liability which is also codified in art 2051 of the Italian civil code. It is a principle of general tort law in Italy that any Italian Ski Resort Operator must compensate the ski users and the visitors for any injuries caused by all objects under their custody (such as a curb or the boundaries), even if the accident has occurred through no fault or gross negligence: such liability is defined by art 2051 as "strict liability to preserve things in custody"
However, when the traumatic event is produced by careless and reckless of the ski users. such strict liability does no longer operate.
In a recent judgment of the Italian Supreme Court [N. 28616 of 20 December 2013], the Court held that the high speed by the skier that descends the track recklessly is one of those so-called "incidentals factors" ("caso fortuito"), unpredictable by the owner of the structure, which then excludes any liability. And this all the more so if the curb or the obstacle against which skiers went to slam was regularly placed on the track.
A part from the "pathological" scenario described above – which is however far from uncommon – the liability of the keeper (which is, in fact, the Ski Resort Operator) under Italian law is considered as "strict" or "objective" liability: This means that the victim has a very easy route to seek compensation for damages suffered whilst in the ski resort or skiing in the slopes.
For the victim, in fact, it is sufficient to prove:
a) the event from which the damage (for example: the broken leg)
has derived;
b) the so-called "causation", i.e. the fact that the
damage has occurred as a direct result of the asset into the
Operator's custody (the ski slope): it will, for example,
necessary to prove – with the aid of witnesses and by any
photographs – that the fracture was determined by the fall
and that the fall occurred on the track.
As soon as these circumstances are proven by the victim, for the guardian there is nothing to do to avoid liability and compensation, except to argue that the incident has been caused by an "incidentals factor", namely the existence of an external factor, unique and impossible to predict and prevent. This would be, indeed, a reckless behavior by the victim.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
