Brief Description of the Case

     The plaintiff Li Jia claimed that it and his lover in a ski resort primary snow normal skating, when skating to the primary snow road and senior snow road intersection, the defendant Han Dong suddenly from the senior snow road at a very high speed from behind the Li Jia hit flying. Li Jia immediately felt the left shoulder pain, can not move, sent to the doctor, diagnosed as the left side of the clavicle fracture and internal fixation surgical treatment, by the identification of the composition of the tenth degree of disability (compensation index 10%). Therefore, Li Jia to the court, request Han Dong and ski resort company compensation for medical expenses, hospital meal allowance, nutrition, nursing care, lost wages, disability compensation, appraisal fee, compensation for mental injury, transport costs totaling more than 300,000 yuan.

       Defendant Han Dong argued that he had no intention to injure Li Jia, and tried his best to avoid Li Jia when he met up with him. After the accident, Han Dong Li Jia rescue, accompanied by medical treatment, paid part of the medical expenses. Skiing for high-risk sports, normal collision and injury is inevitable, this case should be applied to the principle of self-satisfaction risk of the Civil Code Article 1176, Han Dong does not exist intentionally and gross negligence, did not want or let Li Jia injured. Li Jia herself should bear the corresponding losses. If compensation is needed, it should be limited to the actual loss.

      The Defendant Ski Resort Company argued that Li Jia's injury was caused by collision with Han Dong, which was an accident and had no relevance to the facilities and equipment of the ski resort, and that the Ski Resort Company had no fault or negligence for Li Jia's injury, and should not be held liable for compensation. The ski resort company's safety obligation has its boundary, has done the safety obligation. Li Jia and Han Dong both mentioned that there were teaching staff at the intersection of the snow road, but there was no evidence to support. Even if there are students teaching, the skier should bear the duty of care, timely speed reduction will not occur the accident.

Court Hearing 

     The Court held that Article 1176 of the Civil Code of the People's Republic of China stipulates the rule of self-sacrifice, and Article 1198 stipulates the tort liability for breaching the obligation of safety and security. There were two points of contention in this case: first, whether Li Jia and Han Dong had exercised their duty of care during the skiing process, and whether Han Dong had been wilful or grossly negligent; and second, whether the ski resort company had fulfilled its duty of safety and security.

        On the focus of the dispute, Li Jia, Han Dong whether in the skiing process to pay attention to the obligation, Han Dong whether there is gross negligence. The court held that both parties as the snow years of age of the skier should be posted and broadcast on the ski resort ‘skier instructions’ ‘skier code of conduct’ and other skiing rules of conduct to be aware of. The parties failed to submit the scene video, according to the court statement, Li Jia is normal in the primary snow track skating, Han Dong is from the senior snow track turn into the primary snow track. Li Jia claimed that the cause of his fall is Han Dong from the senior ski sliding down the slope failed to control the speed, to avoid the teaching crowd, but failed to avoid Li Jia in time, from the back to the front of Li Jia tripped; Han Dong recognised Li Jia in front of the Li Jia fall posture, location and body injury location are not disputed, so in the absence of evidence to the contrary, the court considered Li Jia's statement of the cause and process of the fall has a high probability, on the The court found that Li Jia's statement of the cause and course of the fall was highly probable and accepted his statement.

      According to the skiing rules, the front skier has the right of priority to use the snow track, the rear skier should take the initiative to avoid the front skier, overtake should not endanger the front skier; skier in the intersection of the two snow track should control the speed, keep alert, avoid collision, pay attention to avoid the mountain side is skating other skiers, not to form an obstruction. In this case, Han Dong as the back of the skier and into the intersection of ski trails skier, did not control the speed, to avoid the front skier and the intersection of the mountain skier's duty of care, for Li Jia's injuries, although not intentional, but there is gross negligence, should be liable for Li Jia suffered as a result of the loss.

     On the focus of the dispute, the court held that, according to the ‘China ski resort management regulations’, the ski resort should be in the intersection of the snow road facilities conspicuous signs, reminders to skiers to remind, and in the intersection of the snow road on both sides and the turn to set up safety nets, protective mats and other safety measures to protect the skiers, but the ski resort company to submit the evidence did not prove that it has done the above safety measures. The company submitted the existing evidence did not prove that it had fulfilled the above safety obligations, and should bear the legal consequences of the failure to prove. Another according to the statement of the parties, not far from the intersection of the left side of the snow track, there is a team of teaching staff. The court held that there is no excuse for teaching activities in the ski resort, but as the venue managers should ensure the personal safety of the skiers, to take the appropriate isolation, remind measures to prevent the instructor, the students of the teaching behaviour impede the skiing activities. In this case, the location of teaching staff in the higher danger of ski road intersection, hindering the normal skiing behaviour of Han Dong, the ski resort company has not fulfilled the obligation to ensure safety, Li Jia suffered losses with fault, should bear the corresponding supplementary responsibility.

      Infringement of others caused personal injury, should compensate for the loss. The court based on the appraisal report and the evidence cited by the parties, Li Jia produced various losses, including medical expenses, hospital food subsidies, nutritional costs, nursing costs, lost wages, appraisal fees, disability compensation, transport costs, and moral damages totaling more than 200,000 yuan, the parties agreed to Han Dong advanced costs to be offset.

       Eventually, the court ruled that Han Dong to Li Jia compensation for losses totalling 200,000 yuan, the ski resort company of Han Dong's obligation to pay compensation to assume supplementary responsibility. After the judgement, Han Dong appealed, and the court of second instance upheld the original judgement. The judgement has now come into effect.

Judge's Statement

       First,The infringing party is liable for gross negligence in respect of the damage suffered by the injured party

      Article 1176 of the Civil Code provides that if a person who voluntarily participates in a cultural or sporting activity that involves a certain degree of risk suffers damage as a result of the behaviour of other participants, the victim may not hold the other participants liable in tort; however, the other participants may not be held liable for the damage unless they have acted wilfully or with gross negligence in relation to the damage. The liability of activity organisers is governed by the provisions of articles 1198 to 1201 of this Law. Article 1198 stipulates that the operator or manager of a business place or public place such as a hotel, shopping mall, bank, station, airport, sports stadium or place of entertainment, or the organiser of a mass event, who fails to fulfil his duty of safety and security and causes damage to another person shall be liable for infringement of rights. If the damage is caused by the action of a third party, the third party shall bear the tort liability; if the operator, manager or organiser fails to fulfil the obligation of safety and security, he/she shall bear the corresponding supplementary liability. After the operator, manager or organiser has assumed the supplementary responsibility, he can recover the compensation from the third party.

       Personal injury in sports, should be applied to the rules of self-adventure, exempt or reduce the responsibility of the aggressor. However, this does not lead to the conclusion that in sports caused damage to others are not responsible for, the victim of intentional or gross negligence, belong to the exclusion of circumstances, should bear the responsibility of tort. This case involves the skiing is speed class sports, belong to the national sports administrative departments to determine the high risk of sports, skiers should pay attention to the corresponding obligations. The skier's duty of care mainly by the sports rules of the sport, and by the skier's technical ability, reaction ability, age and experience and physical conditions, field environment and other subjective and objective conditions.

      The rules of skiing are an important reference value for judging the duty of care of skiers. The ‘Skier's Rules of Behaviour’ issued by the FIS and the ‘Skier's Notes’ issued by the Chinese Ski Association regulate the skier's behaviour, and according to the above rules, the duty of care of the skier in different positions is different. In this case, Li Jia as the front skier to the rear of the skier's behaviour is not foreseeable, and Han Dong as the rear of the skier in front of the skier has a higher duty of care, from the senior snow to the junior snow channel convergence, failed to control the speed, but also did not avoid the front skier in time, its high speed from front to back knocked down Li Jia, Li Jia suffered damages with gross negligence, should bear the corresponding liability; the existing evidence failed to prove that Li Jia's own behaviour, and the Chinese ski association issued the instructions to skiers to regulate the behaviour of skiers. The evidence failed to prove that Li Jia's own behaviour was at fault for the occurrence and expansion of his loss, so Li Jia did not need to bear responsibility.

      Second, the ski resort operators and managers did not exhaust the security obligations to assume supplementary responsibility.

        For skiing this high-risk sports, ski resort operators and managers of the personal and property safety of the skiers have the obligation of safety, should take the necessary measures to maintain the personal and property safety of the skiers. The state general administration of sports has specially formulated the ‘Chinese ski resort management regulations’, with a special chapter of the ski resort safety management, the provisions of the industry as an authoritative standard, the ski resort should be strictly against the standard, to be implemented. In this case, the skier was injured because of the third party behaviour, but the venue operator and manager did not do their duty of safety, also formed a certain cause, according to the law should bear the supplementary responsibility, its responsibility can be recovered from the third party. The law stipulates that this kind of supplementary liability is more conducive to the protection of the victim to obtain compensation, but also to the venue operators and managers to play acorresponding role in the warning.

      This article is reprinted from the WeChat public number ‘Beijing Haidian Court’, with thanks!