|Obertauern Ski Resort (photo credit: Gasthof zur Post)|
The Austrian Times is reporting that a 65 year old man has been given a 3-month sentence after an appellate court upheld his involuntary manslaughter conviction for triggering an avalanche that caused his wife's death while the pair was skiing at the Obertauern ski resort. The court then immediately suspended the sentence, meaning that if the man - whose name has not been released - complies with certain terms and conditions, he will not serve any jail time.
According to the report, the court found that the man set off an avalanche that swept away his wife who was skiing below him when the slide started. The man searched for his wife, but his rescue attempt was hampered by the fact that her avalanche beacon was turned off. When rescuers eventually found the woman, she had died of massive massive injuries she sustained during the slide.
Under American law, a conviction for involuntary manslaughter under these facts would quite unlikely. An element of involuntary manslaughter, under US law, is that the defendant must commit some unlawful act. Here, at least as far as we can imagine, the husband committed no unlawful act. His wife's death was a tragic accident.
As a side note, European ski resorts generally do not provide avalanche control except on pistes and in marked ski routes. Resorts do not have boundaries, so the couple was not skiing "out of bounds" in the North American sense. Ironically, had the couple been skiing out of bounds in North America, the husband arguably would have committed an unlawful act that could have constituted an element of involuntary manslaughter. However, in Europe skiing off-piste is perfectly legal.
As a foreign lawyer, the decision seems at odds with the country's longstanding tradition that when a skier ventures off-piste, that skier assumes the risk of his actions. By imposing criminal liability on another, the Austrian court has quizzically deviated from this practice.