A New York Times article (Gift Link!) informs us that an Austrian man is being prosecuted for failure to prevent his girlfriend from freezing to death on an Alpine mountain. They were near the summit, she couldn’t continue, he left to get help, and she died. He is said to have incurred the Germanic legal doctrine known as Garantenstellung that establishes a responsibility to take effective action for people who have a “duty of care” in a certain situations. If effective action isn’t taken, criminal liability may be found.
The Times says that Garantenstellung sometimes finds hired mountain guides liable for the deaths of their customers, but the principle being invoked when someone dies in an amateur excursion is unusual. Prosecutors argue that the un-named man was liable for his girlfriend’s death because he planned the trip and was much more experienced than she was.
The scenario immediately reminded me of the film “Backcountry.” A man who is supposedly an experienced hiker takes his novice hiker girlfriend to find a “special place” he knows in the wilderness where he intends to propose. He gets lost, however, the trip goes horribly wrong, and he ends up being attacked and eaten by a bear. If she had been the one eaten, I’d call the movie a close approximation of the Alpine tragedy.
Prosecutors have identified “nine errors” they said the man made that led to the woman’s death. It’s all hindsight bias. Both the man and the woman were irresponsible as well as unlucky. If you decide to take on a dangerous activity like Alpine climbing, you have assumed the risk of perishing no matter what the circumstances. Like the bear snack in “Backcountry,” this guy was not as experienced as he thought he was and his companion assumed him to be. Moreover, it’s not as if the man ran off and let his girlfriend fend for herself. It isn’t in dispute that she was unable to continue and he left to get help for her.
The defendant in the looming criminal case certainly might face a civil suit in the U.S., though even that would be a long shot. A criminal conviction, however—he could serve three years in prison—seems unfair. This was an ethics breach of competence, honesty and responsibility: he foolishly misled a woman into trusting his judgment and expertise, and neither were as good as he thought they were. There was no mens rea here, however. It was a tragic accident.
In this case, at least, Garantenstellung is a crock.
Ethics Alarms 
Do we ever prosecute negligence or is it always a civil suit?
There’s criminal negligence. Forgetting that you’ve left a baby in a hot car can get you prosecuted for that.
After reading what is available online concerning the play by play details, I completely understand the nanny state orientation to prosecute this guy. Currently, for the task they were undertaking, I can’t think that this was anything other than flagrant derriliction of safety. Literally nothing safe was done.
Not from a nanny state myself, I have learned stuff in life like “fire burns”, “cold freezes”, “oxygen is important”, “gravity breaks bones”. FAFO is especially apropo to indifferent wilderness environment – at night in the cold on the side of a mountain in the snow.
I take no position on this matter.
However, I believe I heard about this story and there was some speculation that he did this intentionally to get rid of her in a way that looked like an “accident.”
-Jut
Here’s another comparable event:
https://www.theguardian.com/world/2025/nov/26/australian-hikers-chilean-mountain-blizzard-survival-stories
Is there something about mountain hiking that causes people to greatly underestimate the risks involved? I live near the Rocky Mountains and get up in them regularly, and I’m always aware of weather and equipment limitations. I also am aware of numerous rescues conducted every year of people who went up the hill thinking that nothing bad was going happen. But it seems that no matter how many public service announcements go out about hydration, proper clothing, and knowing your limits, people put themselves in life-threatening situations all the time. That we don’t have 50 people a year dying here is mainly because of luck and the dedication of the mountain rescue teams.
I wonder what it is, I find it mystifying. we have had more than a few Chinese tourists that needed to be rescued off of Mount Fuji because they climbed in summer clothing and sandals, or they started out so late in the day that they ended up stranded partway up the mountain and found themselves unable to descend. they installed a gate at the main route up the mountain last year and it’s staffed with volunteers who advise people on their clothing and their equipment and turn away people who are dressed improperly.
I suspect it is simple conditioning.
If we are regularly exposed to danger we know that words are not merely literally flourishes.
Not enough people die for a proper fearful legend to form. So, people watch outdoorsy stuff on YouTube in their air conditioned homes conditioning then to expect the same experience on the trail. They honestly don’t have the broader knowledge of risk mitigation in wilderness environments that expires so.
I think of it like “be careful” to my children is different than to me because of my life experience. Most people grow up in some form of a controlled box which has zero risk to eliminate liability. This, as pertains to EA , is unethical.
I suspect the guy did this intentionally. Too many questions like:
Why didn’t the woman have a phone?
Why didn’t the woman use any emergency blankets that they had brought?
Why didn’t they notify officials they were trekking at night?
This is like taking a vacation to the in beach with your boy friend who chums the ocean while you are swimming so that you can get some up close picture of the sharks.