Skier collides with unpadded iron rod on ski slope - mountain railway firm liable

During spring 1996, a 10½-year old girl went with her parents and brother, all skiers, to the Klein Matterhorn. Upon reaching the mountain station, the group skied across the Plateau Rosa in the direction of Trockener Steg. The skiers stopped together 200m before the Poma plain. Thereafter, in order to gain enough speed for the flat section, the two children skied in a straight line, with the girl on the left side of the runway. After approximately 100m, she came off the runway with a slight curve to the right, proceeded in the soft snow and, still in motion, and before she could react, hit an iron rod, marking the runway boundry, head-on. The skier suffered traumatic brain.
The iron rod with which the girl collided formed part of the runway boundry. There were iron rods on both sides of the runway at distances of 20m. Moreover, they were unpadded.
In 1996, the injured girl, represented by Steinegger Rechtsanwälte, had an expert opinion drafted by the Swiss Association of Cable Car Companies (SVS). The expert concluded that, according to the SVS guidelines, padding was definitely required.
In 2007 the severely disabled victim sued the mountain railway company. Based on a further expert opinion, she asserted that the mountain railway firm infringed its duty of care on its premises.
In its judgement of 06.12.2010, the cantonal court of the Canton of Valais held the mountain railway company liable.¹ However, it allocated contributory fault to the skier and reduced the liability to 80%.
The cantonal court held that the mountain railway company failed to exercise its duty of care in that it neither utilised plastic rods, nor padded the iron rods at the accident location, as could be reasonably expected. By padding the iron rods with standard foam, the risk of injury could have been significantly reduced and the use of optimal foam could practically have eliminated said risk.
With the verdict from 18.09.2014² the federal court rejected the complaint filed by the mountain railway. The complaint by the plaintiff was partially approved by the court: the lower court had incorrectly assessed the skier's own fault. The verdict is arbitrary, if the ensuing result stands untenable and when it is in obvious contradiction with the factual situation, the norm or an indisputable legal principle grossly violates or is glaringly incongruous with the principles of justice. The matter was handed back to the lower court for reassessing the deduction of contributory negligence.

1. Judgement of the cantonal court of the Canton of Valais of 06.12.2010; 1st Civil Department, C1 09 37; liability of a mountain railway company for a ski accident: collision of a skier with an unpadded iron rod in the runway area; severe craniocerebral trauma with permanent disability (not yet final).
2. 4A_206/2014 und 4A_236/2014.