The ski resort jumped over the platform and fell and was injured. Court: there are obvious deficiencies in the performance of security obligations by operators. Undertake70% liability
Source of information: Shanghai Court Network
Spin, jump, spin in the air. Skiing is loved by many people, and some tourist holiday products with tickets to large ski resorts have also become popular in winter on various tourism platforms. However, while enjoying the fun of ice and snow sports, we must not ignore that skiing, as a high-risk sport, puts forward higher requirements for places and skiers in terms of safety and security. A mistake may bring irreparable losses.
[replay the case]
Mr. Yang started from2005He started skiing in 2000. He is an experienced skier and has participated in many of the top amateur skiing competitions in China.2018In 2008, he and his wife booked a two-day itinerary of a tourist resort on a travel network booking platform (hereinafter referred to as "booking platform") (including two snow tickets a day at the resort). However, on the afternoon of the second day after checking in, Mr. Yang accidentally fell and injured when he tried to jump the platform for the third time in the newly opened "Snowboard Park" of the ski resort. He was immediately taken to the infirmary by the staff and then transferred by ambulance to the local hospital, where he was diagnosed with lumbar fracture and cauda equina syndrome by photography. A total of two times28The day-long surgical treatment and two full rest for half a year have caused serious damage to Mr. Yang's physical, mental and economic aspects. Afterwards, Mr. Yang sued to the Shanghai Changning District people's Court (hereinafter referred to as "Shanghai Changning Court"). The tourist resort development company (hereinafter referred to as "tourist resort") and the booking platform jointly compensate for medical expenses, nursing fees, nutrition fees, missed work expenses, mental comfort and other losses.
The defendant tourist resort argued that the ski resort was qualified for operation, and the site planning also met the requirements of national laws and regulations; it was not extremely bad weather that day, and there was no basis for Mr. Yang, the plaintiff, to argue that the ski slopes were open and unqualified. At the same time, skiing as an outdoor sport with certain risks, the ski resort has warned tourists in a very significant way at the entrance, and is equipped with a large number of ski assistants, related facilities and well-staffed medical treatment centers. after the accident, the active medical treatment behavior was taken at the first time, and the security obligation has been fully fulfilled. Therefore, the ski resort is not at fault for the injury suffered by the plaintiff and should not be liable for compensation.
The defendant booking platform said that as the platform providing information release and dealmaking services, it only provided hotel reservation services during the trip, and Mr. Yang should be held responsible for the ski resort for injuries during skiing. At the same time, there is evidence that the platform has fulfilled the corresponding qualification review and security obligations.
After organizing the exchange of evidence and cross-examination between the two sides, the court examined and determined the relevant evidence and confirmed the identity of the parties, the situation of the ski resort involved and the plaintiff's injury, treatment and work income before the injury.
[in the case]
The dispute over the rights to life, health and body caused by the skiing accident heard by the Changning Court in Shanghai was recently upheld by the Court of second instance, which was undertaken by the defendant's tourist resort.70%Liability for damages, total compensation to Mr. Yang, the plaintiff21Ten thousand yuan; the plaintiff is conceited.30%The responsibility of. The verdict has come into force.
Shanghai Changning Court held that in view of the special dangers of skiing, skiing operators and participants should have a higher duty of safety care. The ski resort involved in the case did not change the contents of the guide map in time in the case of temporary addition of skillful skiing venues, did not mark "instructions for skiers" at the entrance of the ski resort, and did not prove that the plaintiff had been required to sign a risk notification form. After the plaintiff was injured, he failed to perform the rescue obligation properly, failed to prove that the construction of the board park platform was in line with national or industry standards, and there were obvious deficiencies in fulfilling the security obligations. Shall be liable for damages suffered by the plaintiff in accordance with the law.
Mr. Yang, the plaintiff, as a senior skiing enthusiast, knew full well that platform jumping skiing was a high-risk event and had been injured because of it. He still tried many times when he thought that day was not suitable for skiing. He was also at fault, so he decided to be conceited.30%The responsibility of.
The law stipulates that for goods or services related to consumers' lives and health, e-commerce platform operators who fail to fulfill their safety obligations to consumers and cause damage to consumers shall bear the corresponding responsibility in accordance with the law. Therefore, one of the elements for the platform to assume responsibility to consumers is that there is a causal relationship between its failure to fulfill its security obligations and consumer damage. The plaintiff was fully aware of the precautions and dangers of skiing when booking the products involved in the case, and the booking platform did not participate in the operation and management of the ski resort involved and the treatment after the accident. The plaintiff's injury was not caused by the violation of the relevant safety notification and prompt obligations of the booking platform, so the plaintiff did not support the plaintiff's request for the booking platform to bear.10%A claim for responsibility.
Judge that the booking platform knows or should know the situation, mainly to examine whether the booking platform is qualified for the operation of the ski resort. If the ski resort in question holds a valid license for operating high-risk sports, it can be determined that there is no legal situation in which the booking platform should know or knowingly exist. As for the problems that may exist in the daily operation of the ski resort, especially in the process of dealing with specific situations, it is difficult to determine that the booking platform knows or should know. It is also difficult to require it as the party providing booking services to take the initiative to grasp such information in advance. Therefore, the plaintiff's request that the defendant's booking platform bear joint and several liability will not be supported in accordance with the law.
(the referee in this case was before the formal implementation of the Civil Code of the people's Republic of China. )
[French Dictionary]
I. Law of the people's Republic of China on Tort liability
Article 26 If the infringee is also at fault for the occurrence of the damage, the liability of the infringer may be reduced.
Article 37 the managers of hotels, shopping malls, banks, stations, places of entertainment and other public places or the organizers of mass activities who fail to fulfill their safety obligations and cause damage to others shall bear tort liability.
……
II. Law of the people's Republic of China on Electronic Commerce
Article 38 the operator of an e-commerce platform knows or should know that the commodities sold or services provided by the operators in the platform do not meet the requirements for ensuring the safety of person and property, or that there are other acts infringing upon the legitimate rights and interests of consumers, if necessary measures are not taken, he shall be jointly and severally liable with the operators in the platform in accordance with the law.
For goods or services related to consumers' lives and health, e-commerce platform operators fail to fulfill their obligations to examine and verify the qualifications of the operators in the platform, or fail to fulfill their safety obligations to consumers, thus causing damage to consumers, bear the corresponding responsibility in accordance with the law.
★ Civil Code of the people's Republic of China (2021Year1Month1Effective as of)
Article 1173 If the infringee is also at fault for the occurrence of the damage, the liability of the infringer may be reduced.
Article 1198 If the operators, managers or organizers of public places, such as hotels, shopping malls, banks, stations, airports, stadiums and places of entertainment, fail to fulfill their safety obligations and cause damage to others, shall bear tort liability.
……
(written by Wang Yuyi, Changning Court, Shanghai)
Shanghai Shixin Law Firm
