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protection network is virtually non-existent, the ski resort was awarded a million in compensation
Case profile
January 2016, a company through the travel agency organization Mr. Li and other employees to ski resort skiing. Mr. Li skiing in the ski resort primary road, in the side of the piste rushed to the piste three layer protective net after falling out of the piste, hit the corner of a house outside the piste caused serious injury. Mr. Li was sent to the hospital for treatment, but died of his injuries. Mr. Li's family to the right to life, the right to health, the right to physical disputes, the ski resort and travel agency to the court, demanding compensation of 1.8 million yuan. The ski resort does not agree with the family's lawsuit request, that the ski resort will be subject to occasional inspection, in line with the relevant norms. The travel agency believes that they have been into the risk of informing the obligation, should not bear the responsibility for compensation. Court hearing, Mr. Lee's family claimed that the ski resort did not fulfill the obligation of safety and security, and submitted to the court the family went to the scene of the accident after the incident of a video, the video shows that Mr. Lee fell in the lower section of the lower part of the primary snow road on one side of the side of the snow road outside the nearer position of the building of the blue roof of the operating room, the eaves of the house, the roof and the snow road at the same level, the walls are installed by the soft cushion, the eaves of the house, the roof is not installed. Soft cushion. The incident side of the snow road is installed with three layers of blue protective net, family members can use one hand to the protective net down.Court hearing
The court held that the ski resort operator has to ensure that the ski resort and supporting facilities and equipment in line with the management norms and to protect the safety of tourists obligations. According to the evidence in the case, Mr. Li in the ski resort of the primary snow skiing, did not violate any of the management of the ski resort, but in the skiing from the protective net out of the hit the house resulting in injuries and ultimately died. Although the accident occurred at three layers of protective net, but the protective net in this accident basically failed to play an effective protection, blocking role, and ski resort business houses built in the distance from the snow road closer position, eaves, roof and snow road is basically at the same level, the roof, eaves and other angular not installed protective pads, there is a greater security risks. Therefore, the ski resort should bear the main responsibility of Mr. Li skiing out of the chute injury and eventual death.The travel agency should bear the tort liability. According to Mr. Li's company and the travel agency signed a travel contract and the travel agency to submit the "travel risk information book" of the specific content, the travel agency should be identified in the travel to Mr. Li's unit before the skiing activities to carry out the risk of informing the obligation, combined with the specific circumstances of the activity, the travel agency on the consequences of the damage occurred without fault, should not be liable for infringement of rights.
Whether Mr. Li should be partially responsible. Skiing for a recognized high-risk sports, Mr. Lee as an adult with full capacity for civil behavior, this should be foreseen, should pay attention to safety and good protection. But Mr. Li in skiing did not wear a helmet to do a good job of full protection, so that the head hit the house and was injured and ultimately died, its own consequences of the damage should bear some responsibility.
In the end, the court based on the specific circumstances of the case, found that the ski resort should bear 95% of the responsibility, Mr. Li 5% of the responsibility, the ski resort compensation for the family funeral expenses, death compensation, moral damages *** total of 1.6 million yuan.Judge's interpretation of the law
Article 1198 of the Civil Code stipulates that hotels, shopping malls, banks, stations, airports, stadiums, entertainment venues and other places of business, public **** places of business, managers, or the organizers of mass events, failed to do their duty of safety and security, resulting in other people's damages, shall bear responsibility for tort. Because of the third person's behavior caused damage to others, by the third person to assume tort liability; operators, managers or organizers have not exhausted the obligation of safety and security, bear the corresponding supplementary liability. Operators, managers or organizers to bear the supplementary responsibility, can be recovered from the third party. Here it should be noted that: First, the ski resort is a reasonable range of security obligations, mainly to prevent the site risk, facility risk, management risk, rescue risk, etc.; Second, the supplementary liability refers to more than two debtors on the same debt *** with the creditor to assume responsibility, but the external first by the first-ranking liable, only in the first-ranking liable for the inability to compensate for the second-ranking liable for supplementary liability. By the second liable person to supplement the liability.2
Court adopts industry standards
Snow parks violated the duty of safety
Summary of the case
Our current laws and regulations have few provisions for ski resorts. Few laws and regulations for the ski resort safety and security obligations of the content of the direct provisions and specific explanations, the practice is usually measured using four standards, namely, the statutory standards, industry standards, contract standards and good administrator standards. Among them, the national and local industry standards in the court proceedings as the basis for factual findings appear to be very important.
In January 2019, Mr. Zhang went skiing at a ski resort. Mr. Zhang was leaning forward for some reason during the downward movement of the beginner's trail, so he leaned over and supported himself with both hands toward the snow trail. Instantly, Mr. Zhang fell backward and hit the sensor set at one end of the magic carpet (conveyor rail) located next to the snow track, resulting in injuries to Mr. Zhang, who was hospitalized at the emergency center on the same day. Mr. Zhang's body fractures, the judicial appraisal for disability grade eight. Mr. Zhang believes that the ski resort sensor location is not set up reasonably caused their injuries, the ski resort to the court, requesting compensation for medical expenses, lost wages, moral damages *** totaling 900,000 yuan.The ski resort did not agree with Mr. Zhang's compensation request, that the sensor installation location in line with the technical specifications, the ski resort has done its duty of safety tips, Mr. Zhang fell because of their own skiing technology level caused.
Court hearing
On the operation of high-risk sports conditions, China's "National Fitness Regulations," Article 32, paragraph 1, there are specific provisions, (a) the relevant sports facilities in line with national standards; (b) with the number of national vocational qualification certificates to achieve the required number of social sports instructors and rescuers; (c) has a Corresponding safety and security system and measures. Regarding the technical standards for ski resorts and facilities, the national standard is "Conditions and Technical Requirements for the Opening of Sports Venues", and the local standards of Beijing are "Technical Specification for the Evaluation of Safety Production Levels, Part 53: Ski Resorts", and "Specification for the Safe Operation and Management of Ski Resorts in Sports Venues". The above local standards are the specific implementation of the national standards and provisions of the refinement of the specific standards for the setting of safety protection facilities for the ski resort in Beijing made a clear specification. Through the above industry standards can be determined, the ski resort magic carpet is located on the side of the ski slope, the magic carpet outside the only low snow as isolation, in may lead to collision trauma of sharp hard objects sensor clearly exposed position and ski slope and magic carpet adjacent to the necessary sections, did not set up safety nets (mats) and other safety protection facilities, can not form an effective physical deceleration or collision effects, not enough to realize the safety buffer after the skier slipped and fell. Skiers slipped after the safety buffer, but also failed to realize the reasonable exclusion of safety hazards. In addition, the ski resort as the operation of high-risk sports operators, even if it fulfills the obligation to prompt, it is not appropriate to determine that it has completely fulfilled its obligation to ensure safety, its obligation to prompt can not be exempted from its at the same time, with obvious safety hazards in accordance with the relevant norms to set up an effective safety protection facilities of the obligation, the court did not accept the ski resort to claim this reduction of the responsibility of the reason.Given that Mr. Zhang did not regulate the wearing of ski protective gear, there is a secondary fault in the skiing process, the court ruled according to the proportion of the responsibility of the ski resort compensation of seven hundred thousand yuan.
Judge's interpretation
Article 511 of the Civil Code provides for the parties on the quality requirements of the content of the contract is unclear, in accordance with the mandatory national standards; there is no mandatory national standards, in accordance with the recommended national standards; there is no national standards, in accordance with the performance of the industry standard; there is no national standards, industry standards, in accordance with the usual standards or consistent with the purpose of the contract. In accordance with the usual standards or specific standards in line with the purpose of the contract. In this case, it is worth noting that the injured in the absence of specific negotiation agreement or statutory standards to determine the scope of managers, operators of safety obligations, you can look for national or local industry standards to support their own claims.3
Failure to fix the evidence in time, skiing fall injury claim was rejected
Case Brief
In January 2019, Mr. Liu went to the ski resort skiing. Mr. Liu slid down to the bottom of the slide near the senior road fell, assisted by a companion to the ski resort in the infirmary for simple diagnosis and treatment, Mr. Liu was sent to the hospital for treatment, diagnosed as a fracture of the clavicle of the left shoulder, identified as a tenth degree of disability. Mr. Liu believes. The reason for the fall is the snow road with ice, so the ski resort to the court, requesting compensation for medical expenses and other *** counted 160,000 yuan. In the lawsuit, the ski resort does not agree to compensation, indicating that their own operation of the snow road in line with industry norms, requiring Mr. Liu to submit evidence material on the snow road with ice. But until the end of the trial, Mr. Liu failed to submit evidence of ice at the location of the fall.Court hearing
The court held that the daily ski resort operation, the bottom of the snow road for the deceleration of the brakes concentrated area, with the increase in the number of skiers, the surface of the snow road by the snow cuts lead to the amount of snow covered by the side of the shift, the snow road was compacted hard are normal phenomena, did not cause obvious potholes obstacles, the ski resort does not exist fault. Mr. Liu said he fell down place icy, this also did not provide evidence to support, the court does not accept. Mr. Liu was other skiers to the infirmary did not have a significant aggravation of its injuries, medical personnel with clinical qualifications, Mr. Liu was injured after the check there is no obvious fault, in summary, the court found that the ski resort has fulfilled the obligation to protect the safety. Skiing itself has a certain degree of danger, skiers should be reasonable assessment of their own ability to choose the level of their own skills and skills skiing. Skiers should be reasonable control of skiing speed, with a certain skiing skills, Mr. Liu into the senior road skiing, skiing down in the process of their own fall, should bear the full responsibility of their own damage. So Mr. Liu asked the ski resort to assume responsibility for all the claims, the court did not support.In another case, Mr. Tan claimed that the ski resort provided ski equipment defective, resulting in Mr. Tan skiing injuries, and the trial, Mr. Tan on this did not submit legal and effective evidence to prove that the court ultimately rejected all of Mr. Tan's litigation claims.
Judge's interpretation
In the two cases mentioned above, if the injured person's statement is true, then the reason for losing the case is due to the inability to prove. Therefore, it is particularly important to fix the evidence in time after the injury. First of all, into the ski resort should keep good tickets, insurance tickets and payment vouchers, tickets are generally accompanied by the purchase of personal accident insurance, some ski resorts will also be insured public liability insurance. After the dispute, in favor of determining the main body of the lawsuit, and the case of insurance contract disputes can often be dealt with in the dispute over tort liability, the insurance company shall bear the corresponding responsibility within the insurance limit. Secondly, the use of ski equipment provided by the ski resort, to carefully check, found defects in a timely manner to replace, refused to replace, to take pictures to keep. For the ski area there are unclear signs, snow road uneven, the height of the protective net is not enough and other issues, to reflect to the snow field in a timely manner, once the collision, fall situation, their own or companions in a timely manner to take pictures, video preservation of the scene of the accident. The rules of skiing are similar to the rules of road traffic, so the handling of skiing accidents can also refer to the handling of traffic accidents. Finally, some of the other injured people did not get the court to support the cause is based on the "principle of risk", the Civil Code provides for voluntary participation in cultural and sports activities with a certain degree of risk, due to the behavior of other participants in the damage, in addition to other participants have intentional or gross negligence, the victim shall not request other participants to assume tort liability. The victim shall not request other participants to bear the tort liability except for the intentional or gross negligence of other participants. Therefore, snow and ice enthusiasts should be based on their own skill level, choose the appropriate snow road, not to achieve a certain level of skill, do not try to high-level road without authorization, to avoid accidents resulting in personal injury to themselves and others.Multiple parties to curb the growth of disputes
In recent years, skiing accidents caused by personal property disputes not only the number of growth in the amount of litigation is also on the rise. Injured people in the majority of young people, more than half of the disability. Snow road ten million, safety first. On the one hand, to reduce the occurrence of sports accidents, depends on the ski resort operators, managers standardize the operation, improve the hardware facilities and software services, the quality of coaching staff, but also need to skiing enthusiasts to do their own prudent duty of care, and gradually improve their own technical level. On the other hand, to reduce the occurrence of disputes, it is necessary to improve the accident disposal mechanism, improve the emergency relief capacity, the introduction of a similar motor vehicle traffic insurance system and expand the ski resort public **** liability insurance insurance coverage, the establishment of a "mediation organization + insurance + snow" dispute resolution mechanism. First of all, ski resorts should guard against four risks, namely, site risk, facility risk, management risk, rescue risk. The site risk is that the ski resort site settings do not meet the appropriate standards, there are easy to trigger the risk of safety hazards. Facility risk refers to the safety hazards arising from the non-compliance of ski facilities and equipment provided by ski resorts. Management risk refers to the safety risk arising from unscientific and non-compliant management of the ski resort in its daily operation. Rescue risk refers to the ski resort is not according to the requirements of the rescue personnel and facilities, or in the danger of failure to fulfill the timely and appropriate rescue obligations and the risk of damage expansion. Secondly, the skiing sportsman, whether it is their own fall or collision with others, after the accident, first check their own physical condition and whether the snow gear is broken, call for rescue in time, and seek medical treatment for more serious injuries. Injuries are not serious, you can go to the service hall to contact the snow field staff registration records, access to the surveillance video, in order to prepare for future litigation need to prove and insurance claims. For the infringing party is difficult to determine the identity of the main body, the scene can be reported to the police by the public security personnel to verify.