1st EUROPEAN LAW FORUM ON WINTER SPORTS

Transcription

1st EUROPEAN LAW FORUM ON WINTER SPORTS
Mr. IGNACIO ARROYO MARTINEZ
Mr. IGNACIO ARROYO.- 1st Juridical snow forum: Spain
Mr. IGNACIO ARROYO MARTINEZ
Ordinary Professor of Commercial Law
Universidad Autónoma of Barcelona
A lawyer of the RAMOS & ARROYO Office*
SPAIN
Legislation, Jurisprudence and Bibliography on Ski Law
(With special reference to liability for skiing accidents)
Ist European Juridical Forum on Snow
From snow rights to snow law
Bormio-Valtellina (Italy), 2-4 December 2005
*
RAMOS & ARROYO, Abogados – Paseo de Gracia 92 (Edificio La Pedrera) – 08008 Barcelona (España) – Tel.:
(+34) 934871112 – Fax: (+34) 934873562 – E-mail: [email protected] - Web: http://www.rya.es
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INDEX
I. INTRODUCTION
1. Presentation of the problem. Technical, sociological and economic characteristics and their
repercussion on the legal liability system.
II. LEGISLATION
2. The double regulatory discipline. Public-administrative and privatistic aspects.
3. Administrative organisation. State Federation and autonomous Federations.
4. The privatistic discipline on the liability for skiing accidents
III. SPANISH JURISPRUDENCE ON SKIING SPORTS ACCIDENTS
5. Sphere of application
6. Criminal responsibility
6. 1. Criminal condemnation sentences
6. 2. Criminal acquittal sentences
7. Civil case law
8. Continues.- a) Non provoked falls of skiers
8. 1. Sentences which acquit the station of all responsibility
8. 2. Sentences in favour of granting indemnity to the skier
9. Continues.- b) Collisions or crashes with other skiers . The Sentence of the Tribunal Supremo of
22 October 1992
9. 1. Sentences in favour of indemnity
9. 2. Sentences that did not recognise liability
9. 3. Claims against the station
10. Continues- c) Damage due to collisions with objects
10. 1. Crashes against buildings (fixed objects)
10. 2. Collisions against sign poles and snow cats (semi-fixed objects)
10. 3. Accidents caused by the use of mechanical ski-lifts (mobile objects)
IV. CONCLUSIONS
V. BIBLIOGRAPHY
VI. ABBREVIATIONS
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I. INTRODUCTION
1. Presentation of the problem. Technical, sociological and economic characteristics and their
repercussion on the legal liability system.
Sport skiing, meaning a sporting activity rather than mere transit on snow on skates, began in
Spain in the winter of 1908, on the slopes of the Catalan Pyrenees of Rasos Peguera. This means that, on
the date of this Forum (2/12/2005) three years remain before the first centenary of its existence is
celebrated.1 Starting from this very remote date, skiing developed very slowly in Spain. In fact, one has
to wait for the 80s and 90s of the Twenty-first Century before skiing can be considered a mass
phenomenon.
First of all, we ought to remember some statistical data to better place my report in is socioeconomic context. It is common knowledge that Spain, with an area of about half a million square
kilometres, is a world tourist power. The country has a population of 45 million inhabitants and receives
40 million tourists per year. This leadership position in terms of general tourism, drops dizzily in the
winter tourism sector. Certainly, neither the mountains (Pyrenees and Sierra Nevada), nor the quantity
and quality of the snow, can compete with other European countries which, like Austria, France, Italy and
Switzerland, for example, boast a great tradition and the best geographic and climatic conditions.
On one hand, there are as many as 59 equipped skiable areas open to the public, 2 although they
are concentrated especially in Catalonia (30) and Aragón (12).3 In the 2004 season, more than 6 million
skiers were recorded, as there are more than one million regular skiers in Catalonia alone. 4
1
As is generally known, sports skiing began in Norway toward the end of the XIX century. The Kristiania club was
established in Oslo in 1877. On the Alps, Delfinato, the first French Club, was set up in 1896. It was not until 1924 that the
International Skiing Federation (ISF), was established to organise the first Winter Olympics in Chamonix (France). In the first
Olympic games, only the North European skiing competitions (Cross-country skiing and jumping) were admitted.
Subsequently, North European skiing organised its first world championships in 1925, but, during the Olympic Games of
1936, alpine skiing was admitted as a sports discipline.
2
To use the same expression as that in art. 2 of the Italian law No. 363, of 24 December 2003, “Regulations regarding
safety in the practice of the descent and cross-country winter sports” (Gazzeta Ufficiale No.3, of 5 January 2004).
3
Cfr. http://www.revistaiberica.com/aventura/esqui. The following is a list of the places where one can find equipped
skiable areas, or the slopes or areas where skiing is possible: Almería: Bayarcal.- Asturias: Lena.- Barcelona: Castellar del
Riu.- Burgos: Espinosa de los Monteros.- Cantabria: Cabezón de la Sal.- Gerona: Alp, Queralbs, Guils de Cerdanya, Setcases.Huesca: Aisa, Anso, Aragnes del Puerto, Benasque, Fanlo, Panticosa, Sallent de Gallego, Valle de Hecho.- La Coruña: Pino.La Rioja: Ezcaray.- Las Palmas: Eguise.- León: Ponferrada, Puebla de Lillo, Villablino.- Lérida: Alt Àneu, Naut Aran,
Barruera, Espot, Esterri de Cardos, Lladorre, Lles, Montferrer y Castellbo, Coma y La Pedra, Rialp, Sort, Viella y Mijaran,
Josa i TuixeNo.- Madrid: Rascafría.- Orense: Carballeda.- Palencia: Brañosera.- Salamanca: Peñaranda de Bracamonte.Segovia: Cerezo de Arriba.- Teruel: Camarena de la Sierra, Valdelinares.
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The skiable areas include 837 kilometres of slopes with signs for all levels, 43 itineraries with 81
kilometres of routes, 9 half-pipes e snowparks for snowboarding, 152 kilometres for cross-country skiing
and a total 122,144 hotel accommodation units. In 2004, 32 million Euro were invested to improve
systems and services, and adapt them for disabled persons. Even though, up to now, Spain has not hosted
the Winter Olympics, in 1996 the World Alpine Skiing Championship was held in Sierra Nevada
(Granada).
On the other hand, the skiing accident indices are similar to those of other countries. According to
the data supplied by Intermundial Seguros, insurers specialised in this sector, 6% of skiers suffer this type
of injury by skiing.5
If we wish to better formulate the juridical criteria which should inspire ski regulations, we have
to identify the fundamental technical, sociological and economic characteristics of the phenomenon. I
shall briefly summarise them in the three following points:
a) First of all, we have moved on from the original figure of the mountaineer, excursionist skier,
to the fast skier, devouring the slopes. Traditional skiing, which was done freely, alone or in
small groups of friends as an activity complementary to alpinism, was replaced by skiing
inside prepared, delimited slopes, provided with signs and managed by companies - the socalled equipped skiable areas.
b) Secondly, as a consequence of the previous point, skiing techniques have changed, in common
with the types of skis. The slopes are more difficult, skis are faster, and the arrival of the
snowboard has revolutionised the 'traffic' regulations of traditional alpine skiing. Today,
everything is faster, and is performed en masse or collectively, and, as a result, it is much more
dangerous. Just think that the traditional woollen cap has been replaced by a protective helmet!
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c) And lastly, the very slopes have increased signs (at times with problems of visibility and
interpretation), the turn indicators (iron poles), the means of ascent (individual or in groups),
the mechanical means of transit (trains, cable railways) and have added new elements for the
production of snow (snow cannons, and chemical products, which, when mixed with water,
maintain the set temperature. All this has introduced greater obstacles to the freedom of
movement and has, consequently, increased, the number of accidents caused by these means,
4
See data supplied by the Asociación Catalana de Estaciones de Esquí y Actividades de Montaña (ACEM).
5
V. http://www.consumer.es/web/es/viajes/derechos_del_viajero.
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also entailing an increase of pollution (there are equipped skiable areas where drinking water
from artificial snow is forbidden, to prevent infections due to the chemical products added to
maintain artificial snow cold).
This is the trade-off of progress. However, one can easily intuit that although, on one hand, the
snow cannons, poles, doors and sign-fencing, etc., have increased quality and the available
space, on the other had, the collisions of skiers with cannons or poles have sometimes had
mortal consequences. Without artificial snow from the cannon, skis would get scratched, and
one could not ski through the last 200 or 300 meters, but collisions with the cannon leading to
sometimes irreparable injuries, would be avoided.
To conclude, on the basis of the three previous points (presence of equipped skiable areas), mass
skiing, and skiing as an activity that has become more risky), I wish to formulate three legal criteria
which should be woven into a European legislative policy.
a) The first is that skiing can no longer be an expression of personal freedom, because it is instead
an activity subject to a regulatory discipline: a set of rules or a code of transit must exist (among
the various forecasts: travelling direction, priority, compulsory helmet, overhaul and control of
technical equipment, examination or title of approval, limited access to specified slopes
according to the skier's ability or experience, etc.). 7
b) Responsibility for accidents can be ascribed not only to the skier who suffers damage (the
traditional criterion) but also to the skiable area managers or to a third party who has not
observed the safety and transit regulations.
6
Thus art. 8.1 of Italian law 363/2003 specifies “In the exercise of the practice of alpine skiing and of snowboarding,
subjects of less than fourteen years of age must wear a protective helmet conforming to the characteristics in sub-paragraph 3".
7
As we shall see in a while, in Spain there is no law or set of regulation which amounts to a transit code for the activity
of skiing. There is the Guía Cívica del Esquiador, published by ACEM, which unites the Ten Conduct Rules of the
International Ski Federation (ISF). The central idea is the concept of the risk inherent to skiing and, consequently, the need to
increase diligence or the precautionary measures to avoid accidents to oneself and to others. In conclusion, the skier's
behaviour must correspond to skiing in a way that is suitable for or compatible with his technique and ability.
On the other hand, the Spanish equipped skiable areas, members of ATUDEM, on 11 July 2003 approved new
Operational Regulations of Ski Stations, which insist on the idea of the skier accepting the risk, making him responsible for
accidents when he skis beyond his ability, technical possibilities or expertise. To conclude, responsibility is attributed based on
the criteria of negligence.
For your interest, we quote article 6, which literally states:
Art. 6º.- 1. The user accessing a Ski Station accepts that skiing is a sport the practice of which implies risks,
which can increase according to various factors, such as the weather, snow, the user's technical level and degree of
fatigue, the behaviour of the other users, the material used, etc.
2. The Station does not have the means whereby it can control the technical level of the users, and,
therefore, they shall be the only ones responsible for the consequences deriving from the selection of a slope
unsuitable for their level
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c) The skier cannot ignore the fact that the activity he is carrying out is one that implies a risk for
himself and for others, which he shoulders voluntarily. Hence the need to demand the
stipulation of an obligatory insurance, at least a legal liability insurance toward third parties.
These reflections on insurance must be applied also to equipped skiable areas.
II. LEGISLATION
2. The double regulatory discipline. Public-administrative and privatistic aspects
In Spain, the legal discipline of skiing has two aspects. On one hand, the so-called administrative
regulations: i.e. those which refer to the juridical sphere of the organisation, structure, and promotion of
winter sports, meaning a competitive activity. On the other hand, the privatistic regulations: we refer to
the legal regulations that discipline the consequences of sports accidents and injuries. This dichotomy
derives from the two ways skiing is practised: skiing at a competitive level, both professional and
amateur, and skiing done by anyone in what is purely a pleasure context, as a spare-time or recreational
activity.8
If we overlook the discipline concerning the skiable areas which, obviously, are subject to
different laws and whose jurisdiction is assigned to the administrative courts, and if we limit our talk to
professional and amateur competitive skiing, the legislation is based on a double set of regulations: state
and "regional or autonomic". The reason for this double status, should be sought in the constitutional
configuration of the Spanish state, which is ramified in Autonomous Communities (hereafter referred to
as "CCAAs"). For this reason, the 1978 constitution assigns and distributes competencies among the
State's Central Administration and the CCAAs. In particular, sport is a subject for which the Autonomous
Community is exclusively competent, unless state sports competitions are concerned, or competitions
which involve more than one Autonomous Community, in which case they are within the competence of
the Central Administration.9
8
Skiing as a form of amusement is not regulated by law. However, it is a different case if, following an accident, due to
injuries caused either by another person or by the poor operation of the ski station's systems, the skier who is the victim of the
accident, turns to an ordinary court claiming indemnity for damages. We shall deal fully with this important subject in this
report. The subject is regulated by civil laws and concerns many jurisdictional decisions.
9
See Art. 148.1.19 of the Spanish Constitution (hereafter referred to as: “CE), which states: “1 st.- The CCAAs may take
on competencies in the following subjects: 19.Promotion of sport and correct use of spare time". Nevertheless, art. 43.3 states,
as a general character, that "The public powers shall stimulate physical education and sport. Furthermore, they shall facilitate
correct use of spare time". The combination of both the provisions explains the fact that the discipline is doubled, because both
the Central Administration and the autonomic administrations have not renounced their respective spheres of competence.
There is no need to say that all the CCAAs, without exception, have taken on competence concerning sports within their
respective Community.
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3. The administrative organisation. State Federation and Autonomic Federations.
Consequently, from the point of view of the administrative organisation, one should distinguish:
a) The Real Federación de Deportes de Invierno (FEDI), which is a state body and is competent
throughout Spain, and the Autonomic Federations of Winter Sports, which number 13, although there are
17 CCAAs. FEDI is a non-profit private entity, with its own resources for achieving its purposes. It is
regulated by its own statutes, without prejudice to the application of Law No.10 of 15 October1990 (“Ley
del Deporte”) and of the Royal Decree No. 1835 of 20 December 1991 (“Real Decreto de Federaciones
Deportivas Españolas”)10. Its headquarters are in Madrid and it represents Spain in official international
sports activities and competitions, in addition to representing Spanish sports-people in competitions
abroad.11
The essential purpose of Law 10/199012 is to discipline the juridical sphere in which state sports
activities are practised, with special focus on the Spanish sports federations, which are private law
associations, to which the law attributes the exercise of administrative public functions.13
According to art. 2, the sports activities and the corresponding specialities, which are promoted
and developed by RFEDI, are as follows: a) Snow activities: Alpine skiing. Cross-country skiing and
10
See EDL 1991/16026.
11
FEDI (web: rfedi.es; e-mail: [email protected]) is, in turn, a member of the International Skiing Federation ( ISF) (www.
fis-ski.com).
12
Law No.10, of 15 October 1990, Ley del Deporte (BOE No. 249, of 17 October).
13
RFEDI has its own statutes – modified by the resolution of (
RCL 1993\3280 )- and they regulate - among other
things - the disciplinary and competition system. The body entrusted to apply the disciplinary system is the State Committee
of Sports and Competition Discipline (CEDDC), according to the Sports Discipline Regulations approved by the Delegated
Commission. CEDDC consists of 4 members, two of which are Law graduates, and it adopts decisions by a majority vote,
whereas, in case of a tie, the Chairman has the casting vote. Furthermore, the Committee is competent as regards appeals
against the decisions of the Clubs, in sports discipline matters, providing this competence is not recognised to the disciplinary
bodies of the respective Autonomic Federations. It is also competent in connection with the appeals against the decisions of
the Disciplinary Committees of the Autonomic Federations, when another appeal is not specified in the internal regulations
of the respective Community. One can present an appeal against the Committee's resolutions to the Spanish Sports Discipline
Committee (a body of the Consejo Superior de Deportes), whose decisions conclude the administrative path or, rather, the
Federative path. The jurisdictional path before the administrative Courts opens up for this administrative resolution.
As regards the structure of RFEDI, there are three representing bodies: the General Meeting, the delegated
Commission, and the Chairman of RFEDI. The General Meeting consists of the Chairmen of the Autonomic Federations
and, if necessary, the Delegates of RFEDI in the CCAAs without an Autonomic Federation. The Chairman of the RFEDI is
the executive body which holds the authorised representation and the economic, administrative and sporting management.
The duration in office is 4 year. See RCL 1996\47 and the Resolution of the Consejo Superior de Deportes of 20 December
1995 (BOE No. 6, 6 January 1996, page 461).
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the Biathlón. Jumping with skis. Artistic and Acrobatic skiing. Snowboard. b): Ice activities: Ice
Hockey. Artistic skating and races on ice. Bobsleigh and Luge.
b) When a competition takes place exclusively in the sphere of an Autonomous Community, the
autonomic laws and regulations are applied and the high authority is the Federation of the Autonomous
Community. All autonomic federations have their own statutes, and, logically, Federations of winter sport
are not present in all CCAAs.14
4. The privatistic discipline on the liability for skiing accidents
In Spain there is no special law which regulates responsibility deriving from accidents on snow.15
Consequently, the law courts make use of general, criminal or civil regulations, as concerns
responsibility.
When special matters are concerned, art. 621 of the Criminal Code of 1995 is applicable. It
addresses the offence of imprudent injuries.16 As a non-serious criminal infringement (
falta) is
concerned, and not a crime (delito), the punishment is usually a fine from one to two months, according
to the criterion of 6 Euro per day.17
As concerns legal liability, art. 1902 of the Civil Code is applied, regarding extra-contractual
responsibility, which states to the letter:
14
Even though Spain is made up of 17 CCAAS, there are 13 Winter Sports Autonomic Federations, specifically:
Andalucía, Asturias, Aragón, Cantabria, Castilla-León, Cataluña, Galicia, La Rioja, Madrid, Murcia, Navarra, País
Valenciano and País Vasco. It is easy to understand that, for climatic reasons, there is no Federation in the CCAAS of
Baleares, Canarias (although a skiable slope exists in Eguise, Las Palmas), Castilla-La Mancha and Extremadura.
For example, Catalonia has the Federación Catalana de Esports de Hivern (FCEH), disciplined by Law No.8 of 7 April
1988 (Llei de L’Esport de Catalunya), and by Decree No. 70 of 22 March 1994. FCEH has its own statute and specific
regulations. (ViDott. www.fceh.org).
15
And there is neither a law like the Italian law. Law of 24 December 2003, No. 363, "Regulations on safety in the
performance of descent and cross-country winter sports" (Gazzeta Ufficiale No. 3, of 5 January 2004). This law deals only
with legal liability (not criminal liability) of the manager of equipped skiable areas (from art.4).
16
Approved in the Organic Law No. 10 of 23 November 1995,
1995; corrected in BOE No. 54, of 2 March 1996).
17
L.O. del Código Penal (BOE No. 281, of 24 November
In the original Spanish text, I use the terms “falta” and “delito”, which I have translated as "criminal infringement"
and "criminal offence" respectively. Both are breaches of criminal law, and, therefore, criminal responsibility is concerned.
The difference between "delito" and "falta" is the seriousness of the conduct, and, therefore, of the punishment, slighter in the
"falta" (infringement) and more severe in the offence. Art. 13 defines offence (delito) as the violation which (criminal) law
punishes with a serious punishment (delito grave) or a less serious one (delito menos grave), whereas although the falta is an
infringement, it is punished with a light punishment. Offences (delitos) are regulated in Book II (articles from 138 to 616) and
infringements are regulated in Book III (articles from 617 to 639).
8
“The person who, by his action or omission, causes damage to another person, due to fault
or negligence, shall repair the damage caused".
I wish to stress that this provision has never been modified since it was originally drafted in 1898,
when it was approved by the Civil Code then in force18.
III. SPANISH JURISPRUDENCE ON SKIING SPORTS ACCIDENTS
5. Sphere of application
If the examination of the legislation previously referred to is useful for offering a view of the
regulatory sphere in general terms, and, at the same time, for explaining the peculiar structure of the
Spanish regional system (sic. autonomic), the presentation of the decisions adopted by Spanish Courts
regarding damage and injuries to skiers is of greater interest, in view of the aims of this Congress. The
series of cases is not very large, but the material is nevertheless sufficient for elaborating principles that
explain the operation of the legal liability system for skiing accidents.
It is understood that in these cases, legal action is taken in the private sphere. Therefore, the
cases do not concern claims in sporting competitions. However, it is a matter of presenting the case series
of accidents, the damage caused and the criteria used by the Courts to recognise or refuse the requested
indemnity.
6. Criminal responsibility
The study of Spanish jurisprudence on the responsibility for skiing accidents can be classified in
two sections: criminal responsibility and civil responsibility.
In particular, we have selected a total of sixty-two (62) sentences: twelve (12) sentences
pronounced by Criminal Courts and fifty (50) sentences pronounced by Civil Courts.19
Skiing accidents are generally civil, and only exceptionally criminal. In this connection, it is well
to remember that, in Spanish law, civil responsibility always derives from criminal responsibility, but not
18
Special laws on extra-contractual civil responsibility were approved in certain sectors (nuclear, road vehicles,
hunting, fishing, and air navigation) which are not applicable in these cases. Only the following articles concerning mass
traffic and responsibility for damages can be applied: articles 25-29 of Law No. 26 of 19 July 1984, Ley General para la
Defensa de los Consumidores y Usuarios (BOE No. 176, of 24 July), and Law No. 22, of 6 July 1994, on responsibility for
damages caused by faulty products (BOE No. 161, of 7 July).
19
In particular, five (5) Sentences were within the competence of the Court of Cassation
(Tribunal Supremo) , and the
thirty-eight (38) remaining sentences were within the competence of the Appeal Courts (Audiencias Provinciales). Obviously,
these sentences were issued regarding the subject of civil responsibility deriving from skiing accidents.
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vice-versa.20 Furthermore, we should underscore that not all criminal sentences pronouncing acquittal
automatically imply the exclusion of civil responsibility. As generally well known, it is a matter of
distinct actions and responsibilities, although there is a complex relationship between them. To give an
example, it is sufficient to mention the preliminary nature of criminal action compared to civil action,
and the principle whereby the facts declared proven in the criminal trial are binding on the civil sphere.
However this concerns only the facts, not the type of responsibility. A criminal action and a civil action,
deriving from an offence or infringement, have a distinct legal nature.
An examination of criminal case law will give us a preview of the following conclusions.
a) First of all, there are very few criminal condemnation sentences. Only 3 were recorded in the
period from 1996 to 2005.
b) Secondly, we have noted an increase of criminal proceedings, although, as we said, they usually
terminate with a sentence of acquittal. Nevertheless, in criminal proceedings, the facts declared
proven are binding on civil trials regarding civil responsibility.
c) Thirdly, although a case has to be prepared for trial by the Criminal Court of First instance
(“Juzgado Penal de 1ª Instancia”), which almost always declares that the deeds should be
archived, thus paralysing the continuation of the proceedings, the Appeal Courts (“Audiencias
Provinciales”) are more willing to revoke the resolution to archive, and demand that preparation
should continue until the trial is held, even though, usually - as we said - the conclusion is a
sentence of acquittal. The ultimate aim is to clarify, within the sphere of the criminal proceedings,
if the accident is either an infringement (falta) or an offence (delito). 21
d) Fourthly and to conclude, we can say that Spanish Courts are not in favour of treating skiing
accidents criminally, because the criminal system is based on the principle of presumed
innocence, and imposes the burden of proof on the accusing party, and its ultimate purpose is not
20
Art. 116.- 1. Every person who is criminally responsible for a crime or offence is also responsible for it in civil terms
if damages or harm derive from the fact. Obviously, to create civil responsibility, damages must have been caused, an
essential element in the concept of civil responsibility (liability). The current Spanish Criminal Code was approved by Organic
Law No. 10, of 23 November 1995, L.O. del Código Penal (BOE No. 281, of 24 November 1995).
21
See note 14 above.
10
to economically indemnify the victim. 22 That is why that the specific cases better correspond to
the civil liability scheme.
5.1. Criminal condemnation sentences
In any case, during (1996-2005), there were three criminal condemnation sentences..
1. The Sentence of the Appeal Court (Audiencia Provincial) (hereafter referred to as: “SCA”) of
Huesca of 16 July 2002 criminally condemned a skier, fining him for 30 days at an amount of 6
Euro per day. The proven facts, which, in criminal terms, amounted to an offence for injuries
through imprudence (a criminal offence), were as follows. The skier, who descended at high speed
along a route with poor visibility, where one could not react to avoid collisions with other skiers,
hit a girl of 7, who was on the lower part of the slope, causing her a fracture of the clavicle and
paralysis of the left arm, with permanent consequences. In addition to the above mentioned
criminal condemnation, he was also condemned to pay indemnity for subsidiary civil liability of
138.077.- . 23
2. On 14 April 2003, the SCA of Huesca, condemned, in the same way, a skier who committed the
offence of injuries due to slight imprudence. It fined him for 20 days, the fine amounting to 6 Euro
per day, and subsidiary civil responsibility for an amount of 11.594.- . The criminal imprudence
was caused by the fact that the skier descended on a snowboard and hit the accusing party, who
was standing still on the edge of the slope. The Cerler station was acquitted.24
3. On 14 April 2005, the SCA of Teruel (1st section), issued a sentence for an offence against
possessions, i.e. misappropriation, sanctioned by art. 623.4 of the Criminal Code. 25 This was not
a case of a sentence on criminal responsibility for imprudence deriving from an accident, but a
criminal condemnation based on the fact that the condemned person had taken possession of three
pairs of snow boots and three pairs of skis hired for daily use in a ski station. He was criminally
fined by a penalty of two months for a daily amount of 6 , without prejudice to the possibility of
a civil action to demand an amount corresponding to the proven value of the objects which had
been misappropriated. 26
22
Naturally, these principles are applied to all types of offences (serious offences, less serious offences and negligent
offences) and also to simple infringements (faltas)
23
JUR 2002\227655. Appeal No. 28/2002. Civil penalty of 138.077 . Speaker Mr. Antonio Angós Ullate.
JUR 2003\143471. Appeal No. 15/2003. Civil penalty of 11.594 . Speaker Mr. Antonio Angós Ullate.
25
This is technically a criminal infringement (falta) and not an offence (delito). See note 14 above.
24
26
See JUR 2005/102755. SCA Teruel No. 8/2005 (Section 1), of 14 April. Speaker Ms. María Teresa Rivero Blanco.
11
5.2. Criminal sentences of acquittal
The review of some criminal acquittal sentences is perhaps of greater interest compared to the
review of condemnation sentences. 27 For the sake of brevity, we shall merely provide a brief account of
the facts and of the juridical principles.
1. On 17 July 2002, the SCA of Girona acquitted the manage of the Masella skiing station for
injuries suffered by a skier who crashed into the side protection barriers of the slope. The accusing
party claimed that at least a criminal offence had been committed due to slight imprudence,
because the so-called 'protection' consisted of some sharp edged beams without any protection.
The skier had involuntarily slipped onto the slope and collided with the palisade, which caused a
transversal cut on his calf. 28
2. On 6 September 2002, the SCA of Girona criminally acquitted a skiing instructress who caused
damage to another female skier, who was also an expert, although not a professional. The collision
occurred while they were descending along the slopes of the "La Molina" skiing station. It was
proved that both skiers were expert, that the visibility was good, that it was a sunny day, and that
the snow was in perfect condition, whereas no imprudence by the instructress who caused the
collision was ascertained.29
3. On 3 December 2002, the SCA of Girona acquitted the instructor and manager of the station from
all criminal responsibility. These are the facts. A boy of seven years of age was travelling in a
chair-lift up the slope together with a girl friend of thirteen, in turn followed by the instructor of
both children, which instructor occupied the next chair. The children tried to step off at the
intermediate station, but, unfortunately, a cord of the raincoat hooked onto the chair, preventing
the boy from getting off. When the operator stopped the chair, the boy remained suspended by the
cord and then fell from a height of four metres. The party pressing charges stated that, if there had
been protective netting, the accident could have been avoided and, furthermore, based negligence
27
The explanation is due to the fact that the sentences of the Appeal Courts are more numerous and elaborate. In most
cases the judges of the first instance close the case with an archival decree (auto de archivo), therefore, without continuing
with the entire trial. This decision is normally appealed against, and the Appeal Courts revoke the decision of the judge of first
instance, and re-open the proceedings in order to decide whether or not the facts have criminal consequences. It is also true
that, in most cases, a sentence of acquittal is pronounced. To conclude, in practice, the result is the same.
28
29
JUR 2002\270922. Appeal No. 24/2002. Speaker Mr. Miguel Pérez Capella.
12
on the fact that the under-age boy was not continuously accompanied by the instructor, who
should have sat with him on the same chair.30
4. On 3 April 2003, the SCA of Granada released the manager of the Sierra Nevada slopes from all
responsibility, because the parties who had suffered serious injuries and pressed charges, behaved
negligently because all three travelled on the same sled. The collision with a snow level sign pole
was a consequence of their unskillfulness, and not of the station manager's behaviour.31
5. On 14 Aril 2003, the SCA of Segovia criminally acquitted the manager of the Navacerrada station
for injuries incurred by an instructor who collided with the pylon of a ski-lift on a slope which had
been closed for five years and was not prepared for skiing. The instructor, whose injuries were so
serious as to prevent him carrying out his work, had entered the slope by leaping over netting that
prevented access to it. 32
6. On 7 October 2002, the SCA of Granada acquitted the instructress and manager of the Sierra
Nevada station (skiable area), who had been accused of the crime of injuries due to negligence. In
this case, a skier remained paralysed following a fall along an embankment situated outside the
slopes. The woman victim was an expert skier who, together with other skiers, had hired an
instructress to do off-slope skiing. Obviously, the group entered the zone by jumping over the
signalling fence, because, otherwise, they would not have been able to ski outside the slope, which
was what they had agreed. The woman skier slipped on an icy zone, and fell into the embankment.
During the fall, she was struck by blows of varying intensity and then remained paralysed. The
sentence states that the expert woman skier shouldered a risk which could not be attributed either
to the instructress or to the station manager.33
7. On 31 January 2005, the SCA of Huesca (Section 1) issued an acquittal sentence in regard to an
accusation of injuries due to imprudence under art.621 of the Criminal code, assigning the court
costs to the plaintiff-petitioner. The Appeal Court (Audiencia Provincial) confirmed the sentence
of the Court, which had refused both the penalty of two months at 6 per day, and indemnity of
11.770.- for the injuries suffered, because it was impossible to prove that the "hole" or sudden
depression of the soil, was the cause of the injuries. The factor which caused the accident was the
30
JUR 2003\200102. Appeal No. 14/2003. Speaker Mr. Carlos Rodríguez Valverde.
32
JUR 2003\188498. Appeal No. 46/2003. Speaker Ms. José Villalain Ruiz.
33
ARP 2002/721. Appeal No. 180/2002. Speaker Mr. Eduardo Rodríguez Cano.
31
13
skier's unskillfulness, and not the care and maintenance of the slopes, because he was unable to
face the difficulty of an irregular terrain, with little snow. A skier must accept the risk entailed in
skiing. Furthermore, it was not proven that the station should have signalled the hole with
fencing, or repaired it, because it could not be proved that the hole in question existed on the
terrain. In any case, unskillfulness in the criminal sphere must be greater than that called for in
civil responsibility.34
8. On 8 July 2005, the SCA of Huesca issued a sentence of acquittal from criminal responsibility for
a possible offence entailing injuries caused by imprudence. The defendant, in addition to suing
the skier who had caused him the injuries, also sued the Aragon Winter Sports Federation, and the
respective insurance companies. The accident occurred when the defendant, who was taking a
skiing lesson, exactly like the plaintiff, who was however in another group, collided with the
victim, causing him injuries of different types. Even if the victim was lower down, the Sentence
does not recognise the responsibility of the defendant because it was not proved beyond any doubt
that the defendant was descending along the ski slope. The Court stated exactly as follows: it was
not possible to prove the imprudence of the defendant and, therefore, said defendant must be
acquitted, because under criminal law, the principle of presumed innocence prevails". 35
7. Civil case law
In addition to providing the case law material we have mentioned, skiing accidents have created
much more work for Spanish civil law courts. An in-depth examination of this rich case law material,
consisting of almost fifty sentences, enables us to draw the following conclusions:
a) First of all, civil case law is based on the "principle of accepting the risk. This means, in other
words, that the skier who is a victim of an accident, and who suffers injuries or physical damage,
must, as a consequence of skiing, in principle accept such damage, because it is assumed that he
voluntarily accepts a risky activity. Therefore, if he wishes to attribute responsibility to a third
party (the skiing station or another skier), he must prove that he (the victim) had acted with due
diligence; this means, according to the parameters, tests or standards of expertise, technique or
ability, required for using skis in a safe manner. In any case, to evaluate blame or negligence
(absence of diligence), one must take into account the concrete characteristics of each case (skier's
34
35
SCA Huesca No. 16/2005/92452. Appeal No. 8/2005. Speaker Mr.Santiago Serena Puig.
JUR 2005/180184. SCA Huesca Appeal No. 48/2005. Speaker Mr. Antonio Angós Ullate.
14
age, equipment, weather, the slope's level of difficulty, etc.). We shall address this important
question later on.
b) Secondly, the cases submitted for judgement to the Courts vary considerably, however, they can
be classified in three distinct categories: i) falls of skiers; ii) collisions or crashes between skiers;
iii) collisions against fixed objects (buildings and cabins), semi-fixed objects (sign poles and
fences), or mobile objects (mechanical ski-lifts, and the snow cat).
c) Thirdly, the legal decisions show a slightly higher percentage in favour of accepting the instances,
thus recognising indemnity to the damaged or injured skier. In particular, out of a total of fortyfive (45) sentences, twenty-five (25) grant indemnity, and twenty (20) refuse it. That means that
55% of the sentences accept indemnity, compared to 43% which are averse to granting indemnity.
d) Fourthly, the case law doctrine applied to cases of damage caused by collisions with fixed, semifixed and mobile objects - i.e. respectively, cabins and snow cannons, sign poles and mechanical
ski-lifts - , have had a positive effect favouring prevention, because the skiable areas have
responded, by installing, on one hand, soft protective devices, and, on the other hand,
announcements, posters, and precaution signals such as "danger", "for expert skiers only",
"dangerous slope"; etc., which obviously contribute to safer skiing.
8. Continues- a) Non provoked falls of skiers
The first group of sentences refers to injuries caused by skiers themselves falling. Naturally, the
determining fact is the absence of collisions, both between skiers, and against objects. A skier skis alone
and hurts himself when he falls by himself. Obviously, questions are asked when skiing is practised in a
ski station and the person who was injured thinks that he fell due to the negligence of the station. In
particular, it is usually claimed that the station was negligent in the care and maintenance of the slopes,
especially for having opened them in dangerous situations. According to the questions, the station's
diligence would have advised not to open the slope, because fog, stones, and even lack of snow uselessly
increased the normal risk situation. To conclude, according to the skier-plaintiff, the fall can be attributed
to the station.
Nevertheless, the main criterion of case law is contrary to indemnity, which, in most cases, leads
to acquittal of the equipped skiable areas, as no negligence had been noted, due to the mere fact that it is
within the competence of the stations to maintain the slopes or in not having decided to close them. As a
general rule, the Courts consider that a skier fell due to his own negligence, because he was skiing with
15
insufficient skill. Naturally, neither a fortuitous event nor mere fate are a factor that justifies attributing
responsibility to the station. The skier must accept the consequence of a fall, because skiing is a risky
sport.
In any event, we shall present some of the more frequent cases, highlighting two groups of
sentences: a) those which completely acquit the station and b) those in favour of indemnifying the skier.
8. 1. Sentences which acquit the station of all responsibility
1. On 2 February 1996, the Appeal Court of Girona pronounced a Sentence which refuted the claim
of the parents of a young girl who lost her life while skiing in the Vallter station. The Sentence
states that death was not caused by insufficient maintenance of the slopes, but rather by an
accidental fall, with mortal consequences for the skier.36
2. The same criterion in favour of acquitting the station - in this case the station of Candanchú
(Pyrenees of Lérida), was applied by the Huesca Appeal Court in its Sentence of 18 February
1997. The plaintiff fells and injured himself, by skiing on a black slope. The Appeal Court
rejected the skier's theory, whereby he argued that the station was negligent because "there was no
protective netting along the edges of the entire slope".
3. On the contrary, the skier accepted the risk of the black slope and the absence of protective
netting, especially as he was an expert skier .37
4. In the sentence of the Appeal Court of Granada of 27 June 2001, the plaintiff slipped and fell on a
red slope covered with icy snow, suffering injuries of varying gravity. During the proceedings, it
was ascertained that the skier had removed his skis to help another skier who had fallen. The
Appeal Court decided against the plaintiff, because it considered, on one hand, that the Sierra
Nevada (Granada) station was not negligent in regard to the causes of the accident, and, on the
other hand, that, instead, the plaintiff was negligent by removing his skis in an icy zone.38
5. The Sentence of the Appeal Court (Audiencia) of Madrid of 22 December 2001, rejected the claim
of the successors of a skier who had died due to impact against some rocks situated outside the
slope. The skier was descending along the slopes of the Valdesquí station (in the Madrid province)
at a great speed and entered a separation zone between slopes where the snow was not compacted.
His skis detached, he flew in the air and fell on the ground, striking his head against rocks
situated outside the slope and tragically lost his life. Although the slope was marked with poles,
36
37
Actualidad Civil (AC) 1996\440. Appeal deeds No. 269/1995. Speaker Mr. José Isidro Rey Huidobro.
Actualidad Civil (AC) 1997\355. Appeal deeds No. 66/1996. Speaker Mr. Ángel Iribas Genua.
16
they did not prevent access to the slope, and there were neither nets nor protective barriers. The
Court ruled that the mountain cannot be closed, by reverting to normal conditions the presence of
trees, or stones in the off-slope zones, because these elements, on their own, are not sufficient to
determine responsibility in case of an accident39.
6. In its Sentence of 18 February 2002, the Huesca Appeal Court acquitted the Candanchú station
from the accusation of responsibility for damages suffered by a skier who had fallen during
descent outside the slope, and when he was outside the slope, crashed against rocks.40
7. The Sentence of the Appeal Court of Huesca, of 18 February 2003, rejected the claim for damages
to a vehicle which was in the car park of the Astún station. The plaintiff argued that the damage
was due to the strong wind and, furthermore, that the station had been negligent because it had not
closed the accesses. Nevertheless, the Court turned down the claim, considering it unfounded and
rash, because, if one followed its reasoning, to avoid the damage, the station would have had to
close all the Pyrenees or the Huesca province. Furthermore, the damage was almost certainly
caused by acts of vandalism41.
8.2. Sentences in favour of granting indemnity to the skier
Nevertheless, on three occasions the Appeal Courts decided in favour of the skier, granting
him indemnity, because they found the skiing stations had been negligent in maintaining the
slopes. The fall of a skier due to poor maintenance of the slope, implies indemnity of the damages
suffered due to the fall.
1. The Sentence of 16 February 1999 of the Appeal Court of Granada partly condemned the Sierra
Nevada (Granada ) skiing station to indemnify a skier who lost a kidney following a blow
received in a fall while he was skiing. The plaintiff argued that the slopes were in poor condition
for skiing, as there was an abundance of hard snow. Although the Sentence does not directly or
exclusively find negligence by the station, it considers that the plaintiff had suffered excessively
serious damage, which indicate that there had been a collision with a blunt body located on the
38
JUR 2001\249983. Appeal No. 1115/2000. Speaker Mr. Juan Francisco Ruiz-Rico Ruiz.
JUR 2001\249983. Appeal No. 1390/1998. Speaker Mr. Ramón Fernando Rodríguez JacksoNo.
40
See Sentence of the Huesca Appeal Court of 25 May 1996. The plaintiff fell and slipped against rocks while skiing.
The sentence dismissed the claim, acquitting the station because the diligence imposed upon it cannot reach the extreme limit
whereby the entire mountain must be closed. Instead, the plaintiff must accept that risk (the fall and the presence of rocks).
AC 2002\793. Appeal No. 125/2001. Speaker Mr. José Tomás García Castillo.
41
JUR 2003/85033. Appeal No. 291/2002. Sppeaker Mr.Gonzalo Gutiérrez Celam.
39
17
slope. According to the evidence examined, contributory negligence was recognised, as the blame
could be attributed at 40% to the station and at 60% to the skier.42
2. The Sentence of 19 January 2000, pronounced by the Appeal Court of Cantabria, condemned the
Brañavieja-Alto Campoo (Santander) station to pay indemnity for damages suffered by a skier
who fell into a ravine near the slope.43
3. The Sentence of 26 March 2003, pronounced by the Appeal Court of Lérida, condemned the
Espot station to pay 8.796.- to the plaintiff for damages sustained while slipping, due to ice, on
one of the access roads to the station, after having bought a ski-pass. In spite of that, the claim was
only partially accepted, because contributory negligence was found, 75% to the station, and 25%
to the skier. The Appeal Court stated that the station was negligent because it should have
maintained the accesses safe, by adapting to the climate, which implies, in case of ice slabs,
scattering salt along the road. The skier too was negligent, because, as he knew that ice was
present and that skiing is a dangerous activity, he had to double his precautions according to
weather and to the conditions of the slopes and access ways. It is important to underline that the
sentence recognises indemnity for damages suffered before accessing the slopes in the strict
meaning of the phrase.44
4. The Sentence of 10 May 2003, pronounced by the Appeal Court of Granada, condemned, in
solidum, the driver of a slope-tracer, the Sierra Nevada station, and its insurance company to pay
10.758.- as indemnity for damages. A 16 year old girl skier, who collided with the slope-tracer,
incorrectly parked in one of the skiing slopes. Nevertheless the young girl was also negligent,
taking into account the following circumstances: she had not bought the ski-pass and was
snowboarding incorrectly, because, in addition to jumping, she was doing it in an unsuitable place.
When the Court had ascertained contributory negligence, it reduced indemnity by 50%.45
5. On 25 April 200, the SCA of Salamanca condemned the station because the fall of the plaintiff in
a road giving access to a bar, although it was not a road for accessing the skiing slopes, was a
consequence of its poor condition and of the fact that the measures for keeping the road ice-free
were not taken .46
42
Actualidad Civil (AC) 1999\3827. Appeal No. 527/1998. Speaker Mr. Domingo Bravo Gutiérrez.
ED 2000/9545. Condemnation to jointly and severally pay 10.758,11 . Speaker Mr. Miguel Fernández Díez.
44
JUR 2003\110535. Appeal No. 591/2002. Condemnation to pay 8.796 . Speaker Mr. Albert Montell García.
45
JUR 2003\229070. Appeal No. 1005/2002. Condemnation to jointly and severally pay 10.759,12 . Speaker Mr.
Carlos José de Valdivia y Pizcueta.
46
JUR 2005/134297. Appeal No. 179/2005. Speaker Mr. Ildefonso García del Pozo.
43
18
9. Continues.- Collisions or crashes with other skiers . The Sentence of the Tribunal Supremo of
22 October 1992
In the previous paragraph, we examined the cases of damages or injuries suffered by skiers
following falls and, therefore, the juridical debate took place between the plaintiff, who was the skier and
the skiing station, which was the defendant. Now, instead, we are dealing with damages following
collisions between skiers and, therefore, the debate is between skiers, excluding the possible
responsibility of the station.
If we examine the case law records, we see that the first trial for sporting civil responsibility,
concerned an accident between two sports people. I am referring to a case which became fundamental in
Spanish case law. The leading case in Spanish law is still the Sentence of the Tribunal Supremo (hereafter
referred to as : “STS”) of 22 October 1992.47
In brief, it concerned a friendly ball game, where a player lost an eye after being hit by the bounce
of the ball thrown by the opponents.48 The victim pressed charges against the opponent and the insurance
company, claiming an indemnity of 60.324.- . The Court of First Instance, partially accepted the claim,
and condemned the defendants to jointly and severally pay the sum of 12.243.- . On appeal, the Appeal
Court accepted the claim, increasing indemnity to 30.273.- . Nevertheless, the Court of Cassation
definitively dismissed the theory of the claim, acquitting the sports person who had caused the damage.
The significant aspect of this sentence, a part from the acquittal, is the consecration of the
principle of " acceptance of the risk by the sports person who suffered the injury", which implies the
release from all responsibility of the opponent who caused the damage.49 In spite of this, the theory of
"acceptance of risk" is not absolute: it is limited by "the rules of prudence that the players must observe".
The application of this doctrine, i.e. the one concerning the limits or exceptions applied to the theory of
47
See Repertorio Aranzadi de Jurisprudencia (RJ) , 1992/8399. The speaker was Rafael Casares Córdoba. The parties
in the dispute were Mr. Ricardo V.O. c/ Mr. José O.R. and the Compañía Nacional Hispánica Aseguradora, S.A. The Court of
first instance partially accepted the claim, which was later partially revoked on appeal, because the Appeal Court increased the
indemnity.
48
The ball game referred to in the text is typical of the Basque Countries, where the players hit the very hard small ball
with their hand against a wall (frontón).
49
It is interesting to transcribe part of the Sentence's Juridical Principles, according to which: "As regards games or
sports of this kind, the idea of the risk they imply - torn ligaments, fractures, etc. - is intrinsic to them and, consequently, those
who perform them accept the risk, providing, obviously, that the conduct of the participants does not exceed the normal limits,
because, in that case, one could enter the sphere of conduct which is considered a malicious or negligent offence (. . .), and, on
this subject, one should refer to the "rules of prudence which the players must observe".
19
acceptance of risk, was evidenced by the SCA of Navarra on 11 January 200150, which declared the
responsibility of the person committing damage, because - a game was concerned in this case too - the
injuries were caused by the impact of a wooden racket with the opponent's mouth. 51 Although the action
was not intentional, it was deemed that this conduct was "contrary to the rules of prudence", given that a
bounce blow and a direct blow are not the same thing.52
If we apply this doctrine to the resolved cases concerning skiing, we can say that case law follows
two complementary parameters or criteria. a) On one hand, the skier accepts the risk of a collision with
other skiers. b) On the other hand, the skier must moderate and adapt his speed and route, not only to his
skill, but also to the conditions of the slope (conditions of snow, visibility, slope angle, difficulties, level
or category, signs, etc.). Naturally, the breach of the rules breaks the principle of acceptance of risk and is
oriented, prima facie, against the rules of prudence, thus violating the general principle of acceptance of
risk, and imposing responsibility on the hitting party (for example, the knocked down skier was lower
than the level of the slope, did not reduce speed on a crossing between the slopes, was skiing at high
speed on a slope for beginners, did not observe the signs, knocking down skiers who were standing
outside the slope, the 'hitter' was a beginner who did not know skiing technique on hard snow and,
furthermore, was skiing on a slope marked "reserved for expert skiers"; etc.).
9.1. Sentences in favour of indemnity
1. On 25 October 1999, the SCA of Huesca, declared that the defendant who knocked down another
skier, the plaintiff, while the latter was about to get into a ski-lift was responsible. The Court
applied the theory of negligence, as an exception to the acceptance of risk by the victim, because
the defendant was unable to control his movements and did not adapt his speed to the difficulties
of the slope. The Sentence also acquitted the station, which had also been pressed with charges.53
2. On 19 October 2001, the SCA of Rioja confirmed the claim and recognised the right to indemnity
of 53.047.- in favour of the skier who was knocked down by another while waiting in the queue
50
Actualidad Civil (AC) 2001\691. Appeal No. 279/2000. Speaker: Mr. Fermín Zubiri Oteiza.
51
For a better understanding of the difference between the two sentences, it must be said that, in this case, the players
hit the ball with a small wooden racket, and not with the hand, as in the first case resolved by the Court of Cassation on 22
Oct.1992.
52
See the comments of VERDERA SERVER, Rafael: “Una aproximación a los riesgos de deporte”, in InDret, working
paper nº 116, Barcelona, January 2003, p. 6 and following pages. (www.indret.com).
53
Actualidad Civil (AC) 1999\6363. Appeal No. 124/1999. Condemned to pay 29.606,28 . Speaker Mr.
Gutiérrez Celma.
20
Gonzalo
to ascend on the ski-lift. On another occasion, the Sala applied the theory of negligence, against
the acceptance of risk, which, instead, was the reasoning of the defendant.54
3. On 11 July 2002, the SCA of Girona condemned a skier to pay 9.826,31.- to another skier who
had suffered injuries because the defendant entered at high speed from one side of the slope,
proceeding from a zone of fresh snow outside the slope. In spite of this, the Court applied the
theory of compensation of blame, given that the victim was skiing in a zone whose difficulty was
above his level.55
4. On 22 January 2003, the SCA of Cantabria (Santander) condemned a skier to indemnify the
victim (another skier) with the sum of 40.946.- . The defendant was going down the slope and
the victim of the injuries was in the lower part of the slope.56
9.2. Sentences that did not recognise liability
1. On 11 March 1999, the SCA of Alicante released a woman defendant from all responsibility. She
slipped on the slope and caused injuries to another skiers, because the SCA considered that no
negligence had occurred. She slipped in an inevitable or fortuitous manner. The victim who, in
turn, was not even negligent, must accept the consequences of a risky activity such as skiing.57
2. On 17 July 2003 the of SCA Granada refused indemnity due to injuries suffered in a collision with
another skier because it did not note any negligence by the defendant.58
3. On 20 July 200, the SCA of Madrid did not find any responsibility because the collision occurred
between two women skiers, both experts, and the negligence or unskillfulness of the defendant
was not demonstrated.59
9.3. Claims against the station
On the other hand, special consideration is merited by those cases decided by reference to case
law, where, as crashes or collisions occurred between skiers, the claim was directed against ski stations
and/or their insurance companies. It is important to underline that the resolved cases were in favour of
54
JUR 2002\16422. Appeal No. 227/2001. Condemnation to pay 53.047,41 . Speaker Mr. José Félix Mota Bello.
Actualidad Civil (AC) 2002\1642. Appeal No. 138/2000. Skier condemned to pay 9826,31 . Speaker Mr.Isidro Rey
Huidobro.
56
JUR 2003\147892. Appeal No. 241/2001. Condemnation in solidum di 40.946,16 . Speaker Ms. María Rivas Díaz
de Antoñana.
57
Actualidad Civil (AC) 1999\4898. Appeal No. 410-B/1997. Speaker Mr. Andrés Sánchez-Medina y Medina.
58
JUR 2002\202401. Appeal No. 118/2002. Speaker Mr. José María Jiménez Burkhardt.
59
Actualidad Civil (AC) 2005/1285. Appeal No. 401/205. Speaker Mr. Nicolás Díaz Méndez.
55
21
releasing the stations from all responsibility. Probably, the core of the decision must be looked for in the
fact that no charges were pressed against the skier who materially caused the damage.
1. On 1 April 1996, the SCA of Huesca acquitted a station against which charges were pressed by a
skier who was knocked down by another skier while they ascended on the ski-lift. The Court ruled
that there was no negligence by the station for not having closed all the zone of the ski-lift route,
whereas the other skier was guilty of negligence, in that he did not sop to rescue the victim, and
could not even be identified.60
2. On 8 July 1999, the SCA of Huesca rejected the claim presented only against the ski station of
Candanchú and the insurance company, because a skier knocked down the plaintiff and
considered that the cause of the accident was fog, in addition to the small amount of snow
covering the slopes. The plaintiff considered that the prudence or diligence of the station obliged
the closure of the slopes. The Appeal Court rejected the claim, acquitting the station and its
insurer, because it was not necessary to close the station, and, furthermore, the plaintiff should
have adapted his movements to the circumstances of that moment. It is important to underscore
that the Sentence also states that the victim should, in any case, have pressed charges against the
skier who knocked him down, which he did not do.61
3. On 5 April 2001, the SCA of Huesca rejected the claim because the collision of the skier with
some slope maintenance staff, who were working and preparing the slopes of the Candanchu'
station when the accident occurred, evidenced the fact that the plaintiff, victim of the injuries, did
not adopt any precautions to avoid the collision with those who were lower down, and, therefore,
did not control his skis as he should have done.62
4. On 20 March 2001, the SCA of Barcelona released the station of La Molino of all responsibility
for damages suffered by a skier (plaintiff) who was knocked down by the sledge of another skier
while he was walking near the station. 63
10. Continues- Damage due to collision with objects
The third group of cases concerns damages caused by collisions with objects, wherein it is
distinguished when the objects are fixed (cabins or snow cannons), semi-fixed (sign poles and netting),
and mobile (mechanical ski-lifts, and snow ploughs).
60
ED 12916. Speaker Mr. Santiago Serena Puig.
Actualidad Civil (AC) 1999\1583. Appeal No. 520/1998. Speaker Mr. Antonio Angós Ullate.
62
Actualidad Civil (AC) 2001\2063. Appeal No. 417/2000. Speaker Mr. Gonzalo Gutiérrez Celma.
61
22
10.1. Collisions with buildings (fixed objets)
1. The Sentence of the Court of Cassation (STS Hall 1), of 18 March 1999, rejected the appeal to the
Court of Cassation and definitively confirmed the rejection of the claim, as the Court of First
Instance and the Appeal Court had previously done, acquitting the Candanchú ski station. The
facts which led to the trial are as follows. A woman slipped on the snow with a plastic object,
collided with a cabin of electrical transformers, which was unprotected, hitting her head which
caused her death by cranial trauma. The Court of Cassation ruled that the fault was exclusively
that of the victim, because slipping while grasping a plastic object was not the same as skiing, and,
furthermore, the woman had been warned of the danger and the cabin was outside the slopes.64
2. The Sentence of the Court of Cassation (STS Hall 1) of 26 June 2001 noted contributory
negligence, and condemned the La Molina (Gerona) station to pay 70% and the plaintiff the
remaining 30%. The plaintiff suffered injuries when he collided with a ventilation cabin close to
the skiing slopes, which had insufficient protection. The station was negligent because the
measures necessary to prevent, or at least reduce, the danger of collisions and/or lessen or reduce
the damage or its consequences were not taken. On the other hand, the Court of Cassation noted
partial negligence (equal to 30%) by the skier, who, although he was on a slope for beginners,
skied at high speed.65
3. The sentence of the Court of Cassation of 20 July 2005 (Civil Hall, Section 1) recognises
contributory negligence, condemning solely the station to indemnify 25% of the damage, and
attributing the remaining 75% to the victims. The damage was a consequence of a collision of the
skiers, who went downhill on a plastic sledge, and collided with a chronometric cabin. Although
the cabin was built in cement and had no protection, it was situated in a closed slope, as indicated
on a sign visible at the start of the slope. Furthermore, using a sledge was prohibited, as indicated
by another sign which literally and visibly stated "sledges forbidden". In spite of this, the Court of
Cassation found contributory negligence of the station because the cabin had no protection and the
prohibition was not sufficiently effective. The Guardia Civil –police- stated that, on other
occasions too, in spite of the prohibition, skiing and descent on a sledge were normal and
habitual.66
10.2. Collisions against sign poles and snow cats (semi-fixed objects)
63
JUR 2001\170530. Appeal No. 279/2000. Speaker Mr. Vicente Conca Pérez.
RJ 1999\1658. Cassation Appeal No. 3065/1994. Speaker Mr. Alfonso Barcalá Trillo-Figueroa.
65
2001\5082. Appeal No. 1594/1996. Speaker Mr. Antonio Romero Lorenzo.
64
23
1. On 20 March 1996, the Court of Cassation (Hall 1) condemned the Sierra Nevada station,
confirming the decision of the Granada Appeal Court and rejecting the decision of the Court of
First Instance, for injuries suffered by the plaintiff, following a collision with a sign pole on the
slopes.67
2. On 27 April 1998, the Court of Cassation (Hall 1) rejected the plaintiff's request, who urged
condemnation of the Astún ski station. It rejected the appeal to the Court of Cassation, and fully
confirming the sentences of the judge a quo and ad quem, it was established that the victim was
solely to blame - he collided with a pole of the fence which separated the slope from a precipice.
The manoeuvre in question was the skier's attempt to avoid knocking down a small child who was
standing still nearby. The excessive speed of the skier on a slope for beginners amounted to
negligence by him: a diligent skier must ski with the prudence (i.e. at slow speed) required to
avoid foreseeable accidents.68
3. On 29 October 2001, the SCA of Orense condemned the Manzaneda skiing station to indemnify
the physical damages suffered by a skier in a collision with an iron pole, which supported a fence
for signalling and protection against possible falls into a ravine. 69
4. On 18 April 2002 the SCA of Lérida condemned the station of Baqueira Beret (Lérida) to pay
7.061,89.- for damages suffered by a skier who collided with a not very visible pole when the
slopes were closing. According to the Sentence, it was the station's duty to strengthen the
precautionary measures toward the evening, a time when there are many skiers on the final part of
the slopes. This was not done, and was the reason why the station was declared guilty of
negligence.70
5. The SCA of Gerona, on 2 December 1999, declared contributory negligence in equal parts (at
50%) of the skier and the station as concerned the collision with a pole of the protective fence.
The victim's contributory negligence derived from the acceptance of the risk of collisions with
natural and artificial elements and from the need to control his movements on the skiing slope.71
66
RJ 2005\4369. Appeal No. 294/1999. Speaker Mr. José Almagro Nocete.
RJ 1996\2244. Appeal No.2736/1992. Speaker Mr. Antonio Gullón Ballesteros.
68
RAJ 3262. Appeal No. 1027/1994. Speaker Mr. Antonio Gullón Ballesteros.
69
JUR 2001\332815. Appeal No. 281/2000. Condemnation to pay 6.866,56 . Speaker. Mr. Abel
Carvajales Santa
Eufemia.
70
Actualidad Civil (AC) 2002\800. Appeal No. 58/2002. Condemnation to pay 7.061,89 . Speaker Mr. Albert Montell
García.
71
Actualidad Civil (AC) 1999\2267. Appeal No. 709/1998. Condemned jointly and severally to pay 6.605,12 . Speaker
Mr. José Isidro Rey Huidobro.
67
24
6. On 1st March 2000, the SCA of Granada, declared contributory negligence in equal parts (at 50%)
of the skier and of the Sierra Nevada station for damages suffered in the collision with a pole
situated on the edge of the slope.72
7. On 26 June 2001, the SCA of Huesca, condemned the station of Astún, and its insurance company
to indemnify the damages suffered because a "snowboard half-pipe" was in the middle of the
slope, and the relevant signs were decidedly insufficient.73
8. On 6 November 2001, the SCA of Huesca acquitted the Cerler skiing station for damages suffered
in the collision of the plaintiff with a sign-pole of a slope. The sentence indicated that "minimum
diligence forces the skier to avoid such collisions and, if they happen, it is understood that they
derive from the acceptance of risk by the victim in the performance of skiing”.74
9. On 6 March 2002, the SCA of Granada condemned the Sierra Nevada station to pay an indemnity
of 1.507.039,87.- . The victim suffered serious injuries to the vertebral column due to impact
against a sign-pole.75
10. On 16 March 2005, the SCA of Granada acquitted the station because the accident whereby a
skier collided with a pylon, which was suitably protected, was not due to the maintenance of the
systems. On the contrary, in addition to moving at an inadequate speed, the victim could not state
that the sign was dangerous, as the pylon was protected.. 76
10.3. Accidents due to the use of mechanical ski-lifts (mobile objects)
72
Actualidad Civil (AC) 2000\3806. Appeal No. 463/1999. Condemnation to pay 5471,07 . Speaker Mr.
Moisés
Lazuen AlcóNo.
73
JUR 2001\292192. Appeal No. 102/2001. Condemnation to pay 24.065,32 . Speaker Mr.
José Tomás García
Castillo.
74
It is of interest to transcribe part of the Juridical Principles No.2 of the above mentioned sentence, the contents of
which are:
“It cannot be demanded for the stations to be delimited by soft fencing and to be protected in all natural points
and places and in the constructions and systems without exception, so that the protections area able to completely
absorb the shock of any blow or fall, if one were to demand such a thing (…) one would arrive at the absurd situation,
which could not be achieved in such vast spaces, of having to wrap all the mountain with protective material, of
having to build along the entire skiable surface,actual tunnels of nets, fencing, padding and other means of protection
to allow transit by those who practice this sport, which is a risky sport, in which the beauty of the landscape and the
mountain also count, which mountain, on the slopes, at least during all the winter season, would be completely hidden
in plastic, protective devices and tensioned, resistant netting of a great height, with its support poles, which would be
able to offer protection in spite of the thickness of the snow coating. (…) the mountain cannot and must not be
transformed into a kind of plastic play-park protected against any falls. It is supposed that the risks of a fall are
accepted by whoever decides to practice and enjoy a risky sport".
Actualidad Civil (AC) 2002\829. Appeal No. 480/2000. Speaker Mr. Gonzalo Gutiérrez Celma.
75
76
JUR 2002\127493. Appeal No. 879/2001. Condemnation to pay 1.507.039, 87 . Speaker Mr. Antonio Gallo Ereña.
JUR 2005/138862. Appeal No. 565/2004. Speaker Mr. Antonio Mascaró Lazcano.
25
The person who today performs alpine skiing usually walks only a little or not at all and
frequently uses the mechanical ski-lifts offered by the station, which, without the skier having to make
any effort (not counting the boredom of the queues), take him to the upper part of the slope. It can be
easily observed that the skier does no more than ski downhill, as the fact of having to effect as many
descents as possible at the fastest possible speed, has by now become an obsession. Winter sports have
gradually eliminated those wonderful and athletic return climbs along the sides of the uncontaminated
mountain, waiting to be rewarded with one or two descents along the same or another side, both equally
virgin. A whole, complete day offered skiers only the reward of one or more descents, however, this was
compensated by the effort required for the return climb, by the contemplation of virgin landscapes, by the
slow rhythm of the walk, by the surprise offered by the return climb, and also - why not? - by the peace
and absence of artificial elements installed by man (I am referring to the noisy and ugly ski-lifts). The
dangers consisted of natural elements (trees, rocks, inclines, ravines), and not artificial elements, a
consequence of skiing practised thanks to the mechanical systems.
In these new conditions, it is logical that accidents happen due to the mechanical ski-lifts, which
provide access to the slopes. The most frequent circumstances in the cases analysed by jurisprudence
have similar if not identical characteristics: damages suffered when one is getting on or off the ski-lift,
when one tries to remedy the lack of snow on the entry and exit platforms, by placing straw or a sliding
carpet. In this chapter, the decisions of the courts, which condemn or acquit a station, have, in turn , had a
positive effect in the reduction of accidents.77 Today, the stations try to maintain a minimum level of
snow on the entry and exit platforms, adding sufficient labour to provide the necessary snow. Straw and
tapis roulants have been eliminated a little at a time.
Nevertheless, the law cases are very varied and it would be an error to say that the courts
automatically condemn a station for the mere fact that straw or tapis roulants are present. The blame or
negligence is a subjective evaluation of the conduct, and the skier accepts a risk by definition. Fate,
unskillfulness or the skier's negligence can cause an accident, independently of the objective
circumstance of lack of snow, and of the presence of the station's other elements (straw, tapis roulants,
etc.). In any case, the "onus probandi" that the conditions of the systems were the cause of the accident is
the plaintiff's responsibility. We can thus quote some cases in which the judges refused indemnity for
damages caused by the use of a ski-lift.
77
The changes in the approach of skiing stations are not a consequence merely of the condemnation sentences. The
mere fact of having charges pressed against the stations and being exposed to the reasoning of the victims, has led to a change
in safety policies. The cases addressed in this chapter are a good example of this statement. Note that the three sentences
referred to acquitted the skiing station, although the plaintiff proved the existence of straw and tapis roulants.
26
1. The Court of Cassation (Hall 1) of 21 November 1996, in connection with a claim presented by a
skier who fell and injured himself when getting on the ski-lift at the Formigal station, states that
"the plaintiff should have maintained his balance and the control of the situation, and, more so,
given that straw was present instead of snow, something that does not increase the risk of an
accident". As a result, the court acquitted the station from any responsibility for the accident.78
2. The SCA of Huesca, on 16 September 1998, rejected the claim, because a woman skier with
thirty-five years' experience could not argue that she had fallen, when getting onto a chair-lift, due
to the tapis roulant.79
3. The SCA of Barcelona, on 27 July 1999, rejected a claim for the same reasons, because the
plaintiff could not prove the station's negligence. The skier was hit by a chair-lift which was
depositing him on the arrival platform, and he argued that there was little snow and that straw was
present on the platform.80
4. The SCA of Huesca, on 3 May 2005, acquitted the defendant of all responsibility, because the fall
from the chair-lift and the consequent blows which caused injuries to the victim should be
attributed to his unskillfulness, and, therefore, the personnel of the station against which charges
had been pressed, had to be exempted from all responsibility.81
The Sentences which recognise the right of indemnity in favour of the skier highlight the station's
negligence for not having taken the necessary measures to avoid the accident, both because the fall would
not, on its own, have been so serious, if some additional precautions had been taken in connection with
the rocks near the ski-lift, and because as a collision occurred between two skiers who were descending
simultaneously on the chair-lift, this collision could have been avoided by the station.
1. The SCA of Cantabria on 10 December 1997 ruled that the station should have taken safety
measures because the snow was rather hard and the ski-lift was significantly inclined. In this case,
a woman skier fell from a ski-lift and, unfortunately, the hard snow made her slip until she
78
RJ 1996\9195. Appeal No. 144/1993. Speaker Mr. Alfonso Villagómez Rodil.
ED 27652. Speaker Mr. Antonio Angós Ullate.
80
ED 30189. Speaker Mr. Jordi Seguí Puntas.
81
JUR 2005/113213. Appeal No. 346/2004. Speaker Mr. José Tomás García Castillo.
79
27
collided with some nearby rocks, which caused her some serious injuries, for which indemnity
was granted to her.82
2. The SCA of Barcelona, on 2 April 2003, resolved a rather unusual case, because, although it
concerned charges pressed following an accident caused by the use of a mechanical chair-lift, the
debate was not between the skier and the station (Baqueira Beret), but between two skiers. In fact,
the case concerned the injuries caused by a skier to another skier, as the former skier exited
incorrectly from a mechanical chair-lift. The Court condemned the defendant and his insurance
company to pay 96.773.- for the damages suffered by the plaintiff, who collided with the
defendant's skis, while both got off the chair-lift. The Court ruled that there was negligence by one
of the skiers who behaved totally incorrectly in the manner of using the chair-lift .83
3. The SCA of Huesca, on 3 May 2005, considered that the injuries suffered by falling from a chairlift were he consequence of lack of maintenance by the station, which should have installed
protective fencing near to the ski-lift platform.84
4. The SCA of Granada, on 21 February 2005, refers to the responsibility of the station for damages
caused to a woman skier by a snow cat. This was not a case of a collision with a slope indication
or signalling element, in which case the skier must act with due diligence, but rather the
negligence of the snow cat driver, who knocked down the victim from behind while she was
skiing. The station's negligence consisted of the fact that it allowed operators to transit on snow
cats among the skiers, without the due precautions to avoid accidents..85
82
Actualidad Civil (AC) 19972409. Appeal No. 461/1996. Condemnation to pay 13.053, 98 . Speaker Mr.
Alonso Roca.
83
JUR 2003\245417. Appeal No. 390/2002. Condemnation to pay jointly and severally 96.773 . Speaker Mr.
Antonio Ballester Llopis.
84
JUR 2005/113271. Appeal No. 325/2004. Speaker Mr. José Tomás García Castillo.
28
Agustín
José
IV. CONCLUSIONS
To complete my report, I wish to underline the most important conclusions which can be drawn
from skiing case law in Spain.
First.- Spain is a country where skiing has become a sport on a massive scale. Nevertheless, there is a
certain imbalance between the huge number of human resources (6 million skiers per year) and the
material resources (57 equipped skiable areas and 837 km of slopes.), and the insufficient legislative,
academic and bibliographic attention focused on the legal aspects of skiing.
Second.- There are no regulations or a special law regulating civil or criminal liability in skiing. The
discipline is general and refers, on one hand, to administrative aspects and to the attribution of
competencies among the State Federation (RFES) and the other Regional Federations (Cataluña, Aragón,
etc.), and, on the other hand (art. 1902), to the privatistic aspects of both criminal and civil responsibility,
which are regulated by the provisions of the Criminal Code (the offence of injuries by imprudence) or of
the Civil Code.
Third.- In contrast with this regulatory shortage, there is sufficient case law material (62 sentences
pronounced by the Court of Cassation and by the Appeal Courts between 1996 and 2005), which is a
clear and appropriate doctrinal corpus at the service of correct indemnities and exemptions. The sentences
were issued both in criminal matters (12) and in civil matters (50). Statistically, the decisions lean slightly
in favour of the victims (55%), but the percentage of acquittal sentences is equally significant (55%).
85
JUR 2005 139485. Appeal No. 103/2005 (Sezione 4ª). Speaker Mr. Antonio Molina García.
29
Fourth.- Case law is highly various, and the solution depends on the circumstances of each case. Despite
this variety, the jurisprudential doctrine turns around two complementary principles. a) On one hand,
skiing is a risky sport and, therefore, the skier must accept its consequences according to his ability. b) On
the other hand, the acceptance of risk by the skier is not a licence, or a cause of automatic exemption of
the skiing stations, or of third parties, which/who must, in turn, behave with diligence. To conclude, the
Spanish system of civil responsibility for skiing injuries is based on the system of blame or negligence,
with an inversion of the burden of proof. It is the skier, the victim of injuries, who must prove the fault of
the entity/person (the skiing station or a third party) against which/whom he has pressed charges.
Fifth.- The condemnation sentences for responsibility have contributed to increasing safety measures in
equipped skiing areas (visible announcements, soft protection on fencing and poles, improved
maintenance of slopes and access roads).
Sixth.- From the point of view of lege ferenda, we are in favour of a common European discipline, to be
applied directly in all member states of the European Union. This is because common problems call for
solutions that are, in turn, common. Nobody can assert that the legal problems entailed in skiing change
according to the colour of one's hair, language, manner of dressing or culinary and cultural traditions these characteristics must, on the other hand, remain distinct in a rich, plural Europe. Neither the place
where an accident occurs, nor the provenance of the parties in a dispute, nor certainly the competent
jurisprudence can be factors that justify a distinct solution (call it "a justice"). So let us all build together a
European, uniform Snow Law!
Many thanks for your attention and, obviously, I shall be at your complete disposal for any clarifications
during the debate.
Mr. Ignacio Arroyo Martínez
Barcelona, 1st November 2005
30
V. BIBLIOGRAPHY
ÁNGEL YÁGÜEZ, Ricardo De: Tratado de responsabilidad civil, 3ª ed., Universidad de Deusto/Civitas,
Bilbao, 1993, p. 1103.
CABANILLAS MÚGICA, Santiago: “Comentario a la Sentencia del Tribunal Supremo de 22 de octubre
de 1992”, in Cuadernos Civitas de Jurisprudencia Civil, 1992, nº 30, September-December, p. 949-958.
DÍAZ ROMERO, María del Rosario: “La responsabilidad civil extracontractual de los deportistas”, in
Anuario de Derecho Civil, 2000, p. 1483-1546.
DÍEZ BALLESTEROS, Juan Alberto: “La asunción del riesgo por la víctima en la responsabilidad
extracontractual: Un estudio jurisprudencial”, in Actualidad Civil, 2000, nº 37, p. 1343-1382.
LAMARCA MARQUÉS, Alberto: “Accidentes de esquí”, InDret, 2002, nº 4, November
(http://www.indret.com), p. 16.
IDEM: “Accidentes de esquí. Guía de jurisprudencia, segunda edición”, InDret, Facoltà di Diritto.
Universitat Pompeu Fabra (Barcelona). Working Paper nº 194, Barcelona, January 2004,
(http://www.indret.com).
ORTÍ VALLEJO, Antonio: “Responsabilidad en la explotación y práctica de actividades de riesgo”, in
AAVV.: Tratado de responsabilidad civil, coord. dal Prof. Luis Fernando Reglero Campos, Pamplona
(Editorial Aranzadi), 2002, p. 1357-1389.
VERDERA SERVER, Rafael: “Una aproximación a los riesgos del deporte”, InDret, Facoltà di Scienze
Giuridiche. Universidad de Las Palmas de Gran Canaria. Working Paper nº 116, Barcelona, January
2003, (http://www.indret.com).
31
VI. ABBREVIATIONS
AC:
Actualidad Civil (Law magazine “Actualidad Civil”)
ACEM:
Asociación Catalana de Estaciones de Esquí y Actividades de Montaña
AP:
Audiencia Provincial (Appeal Court)
CC:
Código civil (Civil Code)
Cass.:
Sentence of the Court of Cassation
CA:
Comunidad Autónoma (Region)
CCAA:
Comunidades Autónomas (Regions)
CE:
Constitución española de 1978 (Spanish Constitution of 1978)
CEDDC:
Comité Estatal de Disciplina Deportiva y Competición
CP:
Código penal (Criminal Code)
D:
Decreto (Decree)
FCEH:
Federación Catalana de Esports de Hivern (Catalan Winter Sports Federation)
JPI:
Juzgado de Primera Instancia (Unipersonal Court of the First Instance)
JUR:
Jurisprudencia (Jurisprudence or case law)
LECr:
Ley de Enjuiciamiento Criminal (Code of Criminal Procedure)
RD:
Real Decreto (Royal Governative Decree)
RDL:
Real Decreto Ley (Royal Law Decree)
RFEDI:
Real Federación Española de Deportes de Invierno
RJ:
Repertorio de Jurisprudencia Aranzadi (Aranzadi Repertoire of Case Law)
S:
Sentencia (Sentence)
SCA:
Sentencia de la Corte de Apelación (Sentence of the Appeal Court)
SAP:
Sentencia de la Audiencia Provincial (Sentence of the Appeal Court)
STS:
Sentencia del Tribunal Supremo (Sentence of the Court of Cassation)
SSTS:
Sentencias del Tribunal Supremo (Sentences of the Court of Cassation)
TS:
Tribunal Supremo (Court of Cassation)
32

1st EUROPEAN LAW FORUM ON WINTER SPORTS

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