The first instance court and the appleate court dismissed the claim for compensation: Although it had been obvious to the defendant that the shortcut between the access road and the toboggan run had been repeatedly used by tobogganers and skiers, this would not trigger an obligation to ensure the safety of the unmarked and unprepared descent resulting from the deviation. Due to the good illumination of the access path, its course up to the junction with the toboggan run and the wooden barn below the toboggan run had been recognisable. The claimant had therefore deviated from the path at his own risk. The Supreme Court confirmed this ruling and referred mainly to the clear visibility of the route and access path.8 2.1.4. A fatal confusion In 7 Ob 66/99b, the 53-year-old plaintiff was a guest at an alpine hut that had no electricity. After having lunch and drinking alcohol there, she wanted to go to the toilet. As she had been sitting in the blazing sun for a long time without sunglasses, the difference in light in the hut bothered her and impaired her perception. Despite the appropriate signage, she mistook the toilet door for a cellar door and fell down a staircase into the cellar. She suffered a traumatic brain injury. The plaintiff claimed that it had been relatively dark inside the alpine hut. Regardless of the signage on the two doors, the defendant should have anticipated that the doors could be confused due to the lighting conditions and the fact that guests may have been under the influence of alcohol. Furthermore, the staircase to the cellar, down which the plaintiff fell, did not comply with technical regulations. The defendant argued that the mountain hut it operated was a simple alpine farm with no electric lighting and no employees. The premises were adequately signposted and lit. The plaintiff was therefore solely responsible for the accident. The first instance court found the operator to be half at fault. The relatively small sign at the top of the door could not be considered sufficient. Although the lighting conditions were adequate once the eyes had adjusted, confusion was still possible when walking through quickly and without having adjusted. The appelate court reversed the judgment and completely dismissed the claim. The defendant did not have to expect guests to use the stairs, particularly in view of the signage in place. The decisive factor is whether the defendant 8 OGH judgment of 23.10.2012, 10 Ob 39/12a. 192 MICHAEL WUKOSCHITZ
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