With the end of the winter season, it is – unfortunately – common to deal with claims for damages arising from injuries sustained in ski accident.

According to the statistics, it has been estimated that in Italy:

• There are 3,480,000 on the slopes skiers every year;
• An average of 40,000 accidents per year (many of these with serious personal injuries and some unfortunately fatal accidents) occur;
• In comparison with other ski areas in other Countries, the incidence of traumatic mortality is lower, approximately 0.8 deaths/year per ski day.

Most accidents involve traumatic events:

• 52.3 % (23.8 % snowboard) lower limbs;
• 16.3 % (44.4 % snowboard) upper limbs;
• 13.2 % (12.7 % snowboard) face and head;
• 6.8  % (11.6 % snowboard) trunk;
• 11.4% (7.5 % snowboard) other.

The accidents are allegedly due to a lack of knowledge of, or failure to comply with the rules of conduct for skiers/snowboarders on the slopes, slope classification, signs and, more generally, the principles provided by the national safety law. However, it has to be outlined that this representation of the causes of accidents is mainly based on the reports by authorities’ and ski resort operators that are not always accurate and tend to minimize the liabilities of person other than the skiers, for example, ski instructors and ski resorts.

The complexity of the cases related to skiing is aggravated by the presence of several potentially liable parties who may be responsible in various capacities for the injuries sustained in an accident on the ski slopes (lifts operators, slopes managers, other skiers).

For this reason, the provisions related to winter sports are very detailed: the legislative decree 28 February 2021 no 40 concerning «Provisions for the safety for winter sports», amending the previous Law 24 December 2003 no. 363, introduced major innovations with specific regard to the safety in the ski areas and winter sports.

Ski areas and their management

Slopes shall be identified and classified in a specific list, pointing out their level of difficulty, which must be highlighted by the lift operator by appropriate signs.

Legislative Decree no. 40/2021 provides for the main obligations of the managers of ski areas (Articles 4-16):

• To guarantee the practice of sports and recreational activities within the equipped ski areas under safe conditions;
• To maintain the slopes;
• To indicate the degree of difficulty of the slopes and the type of activity they are destined to skiing, snowboarding, racing and sledging;
• To report the closures of training slopes to the public, the maintenance of the slopes, the lack of visibility, and generally to use signs;
• To signal speed limits and urge caution;
• To provide first aid to injured persons and to install defibrillators in suitable locations;
• To have an insurance contract, covering civil liability for damage to users and third parties and for facts arising from the manager’s liability in connection with the use of these areas.

General obligations for users of the ski areas

Legislative Decree no. 40/2021 contains general obligations for the users of ski areas (Articles 17-31), and in particular:

• The compulsory use of protective helmets for minors (under 18 years old) for downhill skiing, snowboarding, telemark skiing, sledging, and tobogganing;
• The compulsory ownership of a valid insurance policy covering their civil liability for damage or injury caused to third parties (slope operators/managers must provide skiers with the possibility of taking out the policy, even daily, when purchasing the ski pass);
• The ban on skiing intoxicated of alcohol or drugs.

Rules of conduct for the skiers

Specific rules of conduct for the skiers, inspired by principles of common-sense and common prudence that every skier and snowboarder must know and respect, are listed in the above-mentioned legislative decree:

• Skiers are responsible for their conduct on the ski slopes. For this purpose, they must be familiar with and comply with the provisions for the use of the slopes, which are made public by the manager of the ski areas by posting them at the lift departure points, ticket offices and slope entrances;
• In relation to their technical abilities, the type of the slope and the environmental situation, their behaviour shall prevent them from causing any danger to their own safety or that of the other users of the ski areas;
• They shall reduce their speed when visibility is restricted, near buildings or obstacles, crossings, with fog, haze, poor visibility or overcrowding, in the narrow areas and in the presence of beginner skiers;
• They shall maintain a speed and behaviour of prudence, diligence and attention appropriate to their ability, the existing signs and safety prescriptions, as well as the general conditions of the slopes, the clear view, the weather conditions and the intensity of traffic;
• The skier coming from behind shall maintain a direction that allows him to avoid collisions and danger for the skiers ahead;
• When overtaking another skier, they shall ensure that they have sufficient space for the purpose and sufficient visibility;
• At junctions, they shall change their trajectory and reduce speed to avoid any contact with skiers coming from another direction or slope. When approaching a junction, the skier shall take note of the skiers coming from another slope;
• Skiers who stop shall avoid danger to other users and move to the edge of the slope;
• All skiers shall respect all signs and markings of the skiing slopes.

Liability regime

The rules governing liability in the case of a ski accident are based on three different sources: 1) the Italian Civil Code, enacted in 1942; 2) Statutory provisions; 3) the case-law.

a. Liability of skiers

Until 2003, the liability of skiers was regulated by Article 2043 of the Civil Code, imposing on the claimant to prove the liability of the opposite skier; moreover, without statutory rules, Italian case-law used to assess the behaviours of skiers according to the principles identified by FIS (International Ski Federation), also known as «Skier’s Decalogue», which contained rules of conduct for skiers and, in general, for users of skiable areas.

In 2003, these rules of conduct were adopted with some minor changes by Law no. 363 of the 24th of December 2003 concerning «Provisions for the safety for winter sports in downhill and cross-country skiing», which was then amended by Legislative Decree 28 February 2021 no 40 («Provisions for the safety for winter sports»). Finally, according to Article 33 of Legislative Decree no. 40/2021, special rules of conduct may be provided by special regional laws and regulations.

Pursuant to Article 28 of Legislative decree no. 40/2021, «in the case of a collision among skiers, it is presumed that each skier equally contributed towards causing damages unless proof of the contrary is offered». Accordingly, the burden of proof lies upon both parties and, if both parties fail to provide enough evidence of the other party’s exclusive fault, each skier is liable for the damages caused to the extent of 50%.

In the case of a collision among skiers, the Police report can provide relevant information in relation to the condition of the slope where the accident occurred – including signals, weather conditions, visibility, speed of the skiers -, to the presence of witnesses and to the way the accident took place. Nevertheless, local authorities’ reports are not always reliable.

It is essential that the injured skier takes note of any possible witnesses who may be critical to prove the infringement of the rules of conduct by the opposite skier and to assess liabilities, to overrun the presumption of equal contribution as per Article28 of Legislative decree no. 40/2021.

b. Liability of the ski area managers/operators

Legislative Decree 28 February 2021 no 40 («Provisions for the safety for winter sports»), along with special regional laws and regulations, provide specific rules for the safety of ski areas, imposing on the ski areas managers/operators the obligation to guarantee the practice of sports and recreational activities within the equipped ski areas under safe conditions.

The accidents caused by the breach of such obligations may give rise to a contractual and/or tortious liability of the ski area managers/operators:

• The ski area manager/operator who issued the ski pass shall be responsible for the transport of the skiers to the summit and for the management/maintenance of the downhill slopes served by the ski lifts; the slope manager/operator is obliged to guarantee, as part of the “ski pass contract”, both the safe use of the ski lifts and the maintenance of the slopes. Given the contractual relationship between the ski area managers/operators and the users, the case-law recognised obligation, for the ski area managers/operators, to “safely maintain” the slopes, and the possibility that they may be considered liable for damages occurring on the slopes, based on the rules concerning contractual liability for breach of contract, provided that the damaging event is causally linked to that breach and not attributable to a fortuitous event;
• The ski area managers/operators may be held liable in tort for damages caused to the users as a result of failure to comply with obligations relating to the preparation and maintenance of slopes, and to use methods and tools that could have prevented such occurrences.

In such a situation, to avoid liability, the ski area managers/operators have to prove that they adopted all necessary measures to prevent the accident from occurring.

It is fundamental that the injured person or his/her relatives/friends collect all personal contacts of the witnesses present at the accident and take pictures of the site.

c. Liability of ski instructors

According to settled case law, the ski instructor is liable for injuries sustained by pupils according to the rules governing the performance of intellectual work; in particular, he has the obligation to watch over the conduct of the pupil to guarantee his or her safety in accordance with the legal duty of care and supervision.

The ski instructor’s main obligation towards his or her students is providing the guarantee of safety, and so doing what is necessary to avoid exposing his or her students to a level of risk that is excessive compared to that tolerated by the law and necessary for learning purpose.

The ski instructor shall avoid liability if there has been the correct performance of the obligation of properly supervising the safety and security of the pupil, so that the damaging event was the result of circumstances that are in no way attributable to the teacher.

Ski instructors and ski schools are contractually liable towards their clients. This means that reversal of the burden of proof on the defendant applies.

Conclusion

Skiing is indeed one of the most popular sports in Italy and in the Alpine Countries. However, skiing is a practice that can entail risks if certain basic rules of behaviour and safety on the slopes are not respected.

In the case of an accident which causes injuries, the victim shall call the emergency services and the police. We recommend taking photos of the place of the accident, to identify possible witnesses, and to ask for the details of the insurance policy.

Studio legale Bona Oliva e Associati