Trail maintenance liability despite contractual assumption of liability by a third party (accident on a mountain bike trail)? (OGH 3 Ob 90/23s) (Kopie 1)

Created by Thomas Hörantner, LL.M. |
Civil Law

Facts of the case

The plaintiff fell as a cyclist on a forest road built by the defendant and was seriously injured. The forest road is a signposted mountain bike route. The signposting and maintenance of the mountain bike route is carried out by a third party (in the present case: tourism association). The latter joined the legal dispute as an intervening party. 

The basis for this was a written agreement between the defendant and the tourism association. This had the following content (in extracts):

IV.3: “The liability of the path keeper and the respective landowner of the adjacent areas resulting from the use of the path facility by cyclists shall be assumed in full by the [Tourism Association].” …

IV.4: “The [tourism association] assumes the function of a path keeper within the context of § 1319a ABGB (Austrian Civil Code) and is obliged to repair and maintain the road, but only for cycling purposes, in accordance with this provision." ... 

However, the defendant was still responsible for the maintenance of the forest road for agricultural use.

The plaintiff demanded compensation from the defendant as the keeper of the road and a declaration of liability for all future damages resulting from the accident. The defendant argued that the tourism association had contractually assumed liability for bicycle accidents and that it should therefore be held liable (= lack of passive legitimation).


Legal basis

§ 1319a of the Austrian Civil Code (ABGB) regulates the so-called "path keeper liability". According to this, the keeper of a path is liable to the users if damage is caused by the defective condition of the path and the keeper himself or persons attributable to him can be accused of culpable negligence or intent. 


Statements of the Supreme Court

The keeper of a path is the person who bears the costs for the construction and/or maintenance of the path and has the power of disposition to take the corresponding measures. Joint keepers are jointly and equally liable. 

By constructing the forest road, the defendant became the keeper. The status of keeper was not lost by the agreement with the tourism association (contractual assumption of liability for bicycle accidents). Rather, the tourism association became the co-keeper of the road.

This results from the fact that the defendant is still responsible for the maintenance of the forest road - even if only for the maintenance of the forest road for agricultural use. 

The maintenance obligations of the defendant and the tourism association inevitably overlap. Thus, the maintenance for agricultural use is the basis for the (subsequent) use by cyclists. 

As a result, the contractual assumption of liability for cycling accidents does not make the tourism association the sole keeper of the mountain bike route.



The contractual assumption of liability by a third party does not automatically mean that the keeper of the path loses his status as keeper, which makes him liable for damages in the event of accidents. This applies in particular if the keeper continues to maintain part of the road. As long as it has not been established that the cause of the accident lies exclusively in the area of responsibility of the third party, the keeper and the third party are jointly and severally liable as joint keepers. Each of the two can be held jointly and severally liable by the injured party. The party who has paid the joint debt can then take recourse against the other party.