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Austrian avalanche raises questions

11/11/2011
AP Images

On March 17, 2010, outside of Obertauern, Austria, an avalanche killed a woman in her late 50s. She was ski touring with her husband, and while both were carrying avalanche transceivers, the units were turned off and in their packs. The lack of signal severely delayed the search and rescue; ultimately the woman was found under more than a few feet of heavy, wet snow.

The couple, whose names were not made public, were descending a slope they deemed safe, according to the husband, when he triggered a 260-foot-wide, 820-foot-long slab that caught his wife. Even with the help of search and rescue, it took an hour and a half to locate and recover the woman's body.

This particular incident went beyond just another tragic fatality in the mountains. It made international news, not only because Austrian authorities decided to prosecute the husband for negligent homicide, but because on October 6, 2011, he was found guilty of manslaughter by a judge in Salzburg, Austria.

The man was sentenced to three months suspension. He and his lawyer are currently considering an appeal.

According to a Salzberg newspaper, the case of the prosecution rested on a few key points. The transceivers were off, negating already slim chances of survival. And while the woman had backcountry skiing experience, her husband was a more experienced ski mountaineer, and according to the prosecution, should have made sure that both transceivers were switched on and was therefore responsible for her death.

The defense argued that a transceiver would have made no difference, as the woman sustained severe head and neck trauma, but physicians for the prosecution said the cause of death was suffocation, therefore the lack of signal resulted in her death, according to an article on the Salzberg Mountain Rescue website.

Judge Manfred Seiss, who handed down the verdict, was quoted as saying, "If both parties had had their 'avalanche beepers' on, the woman would have been found within 10 to 15 minutes, and could have survived." Austria's mountaineering organizations maintain that personal responsibility is the issue and the law should not be involved.

Dr. Michael Obermeier, a lawyer, ski mountaineer, and expert in Austrian ski law, says that the idea behind the verdict is not a new one in Austria. All accidents in the mountains are investigated, he said, but usually found to be a no-fault situation. This is not the first case or conviction, he added, but this particular case received a lot of attention.

Obermeier, who has published several books on ski law -- including a guidebook with legal information and rights of freeskiers -- points out a changing mentality amongst skiers. "Quite a few of my freeride buddies have a feeling of uncertainty toward such situations, which has already resulted in the denial of requests made by other freeriders," Obermeier told ESPN. "There's already a general attitude: Only ride with people you know ride at the same level, so it won't come up in a situation that you may be liable for their death, injuries, etc."

The official organization for mountaineering in Austria, the Austrian Alpine Club, and the Austrian Mountain Rescue condemned the ruling. "I am very skeptical when the law is involved in private sports, as long as bystanders are not in danger. When two friends go on a ski tour together in the mountains, each is responsible for himself," the head of Mountain Rescue, Estolf Müller, said on the organization's website.

We should think before we act, and we should think over who is the real judge -- the avalanche or a judge by law?

--Paul Mair, Austrian mountain guide

To many who work and play in the mountains, it represents the continued devolution of personal responsibility in skiing and in society. "It is the antithesis of the whole mountaineering values. We should think before we act, and we should think over who is the real judge -- the avalanche or a judge by law?" said Paul Mair, an Austrian mountain guide.

In the United States, law experts do not think an incident of this nature could be prosecuted. Leah Corrigan, an attorney at Jackson, Wyo.-based Lubing and Corrigan, which specializes in recreation defense involving ski areas and guide services, said, "I would be very surprised if a criminal case of this nature could be successfully brought in the United States, where the inherent risks of backcountry skiing are accepted, and self reliance among backcountry skiers is expected."

Corrigan added: "Absent some indication [he] somehow purposefully mislead his wife or knowingly and maliciously put her in danger, (which does not appear to be the case), prosecuting attorneys in the United States would be hard pressed to bring criminal charges against an individual skier in that situation."

Although the Austrian legal precedents do not agree, that nation's mountaineering community has said that personal responsibility should play the final role. AAC's Head of Education and mountain guide Michael Larcher highlighted that when he said, "I would like to emphasize the fact that adult freeskiers, regardless of differences in their levels of experience, are and must be responsible for themselves during a tour. And personal responsibility has nothing or little to do with experience."

[This story was reported with translation assistance from Courtney Dixon in Munich.]