Who is responsible for the drunken fall? Court: co-drinkers have fulfilled their duty of care No need to bear compensation
Source of information: Shanghai Court Network
[replay the case]
2018Year6Month1In the evening, Mr. Su and Xiao Shen, Xiao Yao and other friends14People dined in the restaurant until that night.9It ends around one o'clock. During the dinner, Mr. Su drank nearly half a jin.42A bottle of white wine and a bottle of beer. For safety's sake, Xiao Shen sent Xiao Yao Shunlu, who had dinner with him, to take a taxi to take Mr. Su home. Half an hour later, the two arrived at Mr. Su's residential area and had a drink at the barbecue restaurant at the gate of the community, during which Mr. Su drank more than a bottle of beer. Evening10Point20After Xiao Yao sent Mr. Su out of the barbecue restaurant, he returned to the barbecue restaurant, and Mr. Su left by himself. Unfortunately, the next morning9At one o'clock, Mr. Su was found in his own building.3The platform of the building is dead. According to the forensic examination, Mr. Su's blood alcohol level is as high as2.58mg/mlIn a state of drunkenness, the cause of death was a high fall.
According to Mr. Su's wife, that night10At about one o'clock, she had a video call with Mr. Su and saw the courtyard wall of her community. Mr. Su said at that time that he had finished having dinner with his friends and was going home soon. According to the surveillance, the night of the incident23Hour04Mr. Su is located in2Stay at the door of the building, accompanied by strip, smashing the door, kicking and other movements.23Hour25Fenxu, the last time the surveillance captured Mr. Su's appearance was that he was in the same building.6The corridor of the building.
Mr. Su's family believes that the community property company did not fulfill its security obligations and did not find Mr. Su's abnormal behavior in the corridor in time, which made it wander for a long time into a tragedy. It was also pointed out that among the friends who had drinks with Mr. Su that night, Xiao Shen, Xiao Tang, Xiao Sun, Xiao Li, Xiao Yao and so on.5People should be held responsible for their death due to improper behaviors such as persuading, pouring, gambling and punishing alcohol. The Su family sued to the Shanghai Putuo District people's Court (hereinafter referred to as "Shanghai Putuo Court"), asking the property company of the community, as well as the above5Human bearing30%Liability for tort. Require Xiao Shen and so on.5Jointly borne by the defendants, including death compensation230Ten thousand yuan (including the living expenses of the dependant91Ten thousand yuan), funeral expenses5.7Ten thousand yuan, compensation for mental damage5Ten thousand yuan, the total amount is240More than ten thousand yuan20%The property company is required to bear the above total amount.10%Liability for compensation.
[in the case]
After the trial, the Putuo Court in Shanghai held that there was no evidence to prove the defendant Xiao Shen and so on.5There are improper behaviors such as persuading, pouring, gambling and punishing alcohol in the process of gathering and drinking, and there is no evidence to prove that Su was found to drink too much but did not stop it. And people also rejected Su's proposal to continue drinking at the end of the dinner, and Xiao Shen, as the dinner convener, also arranged for Xiao Yao to send Su home. After that, everything was normal during the phone call between Su and his wife, and he did not show mental abnormality or trance. Surveillance video showed that Su had arrived at his door. On the other hand, the second floor where Su lives, under normal circumstances, the danger of "high fall" is unlikely to occur, and the defendants can not be expected to have enough predictability to Su's death.
Therefore, the court held that the defendant Xiao Shen, etc.5People have fulfilled the responsibility of care, lack of predictability for Su's eventual death from a high fall, and do not need to bear compensation liability. As for the defendant property company, the court held that the legal security is mainly embodied in assistance and prevention, and the agreed security obligations are reflected in the "property service entrustment contract" agreed by both parties. It is a reasonable area to protect the personal and property safety of the owners. The plaintiff demanded the obligation to maintain public order for the security of the defendant property company should find Su abnormal behavior, beyond the reasonable scope, expanded the responsibility of the property company, the court did not support.
To sum up, Shanghai Putuo Court held that Su, as a person with full capacity for civil conduct, should be well aware of the harm of excessive drinking to his health and even to his family and society. According to the test report, the alcohol content in his blood is2.58mg/mlTo achieve a state of drunkenness (refer to the standard of drunk driving, blood alcohol content0.8mg/ml). Thus it can be seen that Su was in vain about his own health and safety, indulged in drinking, and finally had the accident of falling from a building, which bears fundamental and full responsibility.
The defendants Xiao Shen, Xiao Yao and Xiao Tang voluntarily compensated respectively.3Ten thousand yuan,2Ten thousand yuan,1Ten thousand yuan. It is hoped that the above payment can make up for the trauma of the family members.
A little knowledge:
What is "fair responsibility"?
Civil Code of the people's Republic of China1186Article: if neither the victim nor the actor is at fault for the occurrence of the damage, the loss shall be shared by both parties in accordance with the provisions of the law.
"Fair liability" means that when the parties have no fault for the damage caused and cannot apply the no-fault liability to require the actor to bear the liability for compensation, but if the loss suffered by the victim is not compensated, it is obviously unfair, according to the property status of the parties and other actual conditions, the people's court orders the actor to give appropriate compensation to the property loss of the victim.
So, what should we pay attention to when drinking together?
Section 1 of the Civil Code of the people's Republic of China1165Article: if the actor infringes upon the civil rights and interests of others by fault, he shall bear tort liability.
To put it bluntly, under what circumstances do co-drinkers have a legal obligation:
oneFirst of all, what should we not do? (situations in which there is a fault)
Forcibly persuade alcohol, force drinking (drinking), promise conditional drinking (gambling), punish drinking (penalty)
It is generally believed that if another person is in danger as a result of the previous misconduct, the wrongdoer (co-drinker) needs to assume the legal obligation to act, that is, the duty of relief.
In this case, it violates the salvage obligation, that is, inaction or inappropriate relief.
The main manifestations of omission are:
Drinking together leads to the drunkenness of the co-drinker, while other co-drinkers ignore it and walk away, causing the drunkard to choke to death due to vomit blocking the respiratory tract.
Inappropriate assistance may be manifested as:
It is found that some people are drunk and the measures taken by other co-drinkers are inappropriate or wrong, which leads to the suffocation and death of the drunkards.
twoSecondly, what can we do?
Even if co-drinkers do not have the above misconduct, care should be taken to avoid damage caused by co-drinking:
Know about your physical condition, driving and whether or not before drinking together? Remind or stop drinking when you know that there is an unsuitable situation for drinking.
Remind or stop drinking when you find that someone has been drinking too much.
Co-drinkers shall notify, nurse, care and escort other co-drinkers during and after drinking.
(C)Section 1 of the Civil Code of the people's Republic of China1198Article: operators, managers or organizers of public places such as hotels, shopping malls, banks, stations, airports, stadiums and places of entertainment, or organizers of mass activities, who fail to fulfill their safety obligations and cause damage to others, shall bear tort liability.
If damage to another person is caused by the act of a third party, the third party shall bear tort liability; if the operator, manager or organizer fails to fulfill its security obligations, it shall bear the corresponding supplementary liability. After assuming the supplementary responsibility, the operator, manager or organizer may recover the compensation from a third party.
[French Dictionary]
I. several provisions of the Supreme people's Court on the time effect of the Application of the Civil Code of the people's Republic of China
Article 1 the provisions of the Civil Code shall apply to cases of civil disputes arising from legal facts after the implementation of the Civil Code.
Cases of civil disputes caused by legal facts before the implementation of the Civil Code shall be subject to the provisions of the law and judicial interpretation at that time, except as otherwise provided for by law and judicial interpretation.
The legal facts before the implementation of the Civil Code shall continue until after the implementation of the Civil Code, and the provisions of the Civil Code shall apply to the cases of civil disputes caused by the legal facts, except as otherwise provided for by law and judicial interpretation.
II. Tort liability Law of the people's Republic of China
Article 6 the actor shall bear tort liability for infringing upon the civil rights and interests of others because of his fault.
If the actor is presumed to be at fault according to the law, and the actor cannot prove that he is not at fault, he shall bear tort liability.
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.
If damage to another person is caused by the act of a third party, the third party shall bear tort liability; if the manager or organizer fails to fulfill his security obligations, he shall bear the corresponding supplementary liability.
(case compilation: Shi Di, Putuo Court, Shanghai)
Shanghai Shixin Law Firm
