Facts

On February 5, 1967, a traffic accident occurred on the Furka Road between Lax and Mörel in the canton of Valais, in which Albert Fux lost control of his passenger car on an icy stretch and crashed into a wall. His wife Elsa Fux suffered serious injuries. The plaintiffs, Albert and Elsa Fux, claimed that the road was not properly maintained, as the ice had not been treated and no danger signals had been set up. They sued the canton of Valais as the road owner and Constable Kuonen for damages.

Considerations

The Federal Court ruled that, according to case law, the issue of inadequate road maintenance should be assessed under Art. 58 of the Swiss Code of Obligations, even if a public authority is the owner of the road. However, the Federal Court has recently limited this principle, stating that public law is primarily applicable and that a maintenance defect can only be spoken of if elementary measures have been neglected.

In the present case, the Valais Road Act expressly stipulates that public roads must be kept open in winter in accordance with traffic requirements to the extent that can be demanded of the party responsible for maintenance, and that winter maintenance includes snow removal and the treatment of ice and snow slipperiness. Thus, public law in Valais requires public authorities to combat winter slipperiness on their road network.

The Federal Court further states that this does not mean that every accident related to such a hazard source is to be concluded as a deficiency in the maintenance of the road within the meaning of Art. 58 of the Swiss Code of Obligations. Rather, in each individual case, it must be examined whether the road owner was even able to fulfill its task given the temporal, technical and financial circumstances. It must be taken into account that a road network, due to its extent, cannot be kept under control to the same extent as a single building, and that the expenditure of a public authority for the winter road service must be in a reasonable proportion to its resources and its other expenses.

The Federal Court concludes that the canton of…