The "low -headed family" watched the mobile phone and was stumbled and fractured. Who should be responsible?

Many people have the habit of swipe mobile phones while walking on the roadside

It is inevitable to be tripped because of a moment of negligence

What's more, they will be injured and hospitalized

This happened

Who should bear the loss of the wounded?

Let's take a look at the following case ~

Basic case

At 17:57 on December 3, 2018, when Dong Moumou walked from east to west to the front of a hotel, he was set up by a hotel to watch his mobile phone by walking on the side of the road. The parking lot of the field and adjacent hotel) stumbled. Later, Dong Moumou was taken to the hospital for treatment. The diagnosis results were: the right ulnar eagle mouth fracture and was hospitalized for 8 days. The two parties did not reach a mediation on the dispute. Dong Moumou prosecuted the hotel to the court and asked the hotel to compensate his medical expenses, secondary surgical costs, hospital food subsidies, nutrition costs, misunderstanding fees, nursing expenses, transportation expenses, mental damage soothing, etc. , Totaling 124118.29 yuan.

A hotel argued that there was no fault in the case of a hotel. As a hotel operating unit, it had fulfilled the obligation to security. Dong Moumou's damage consequences did not have any causal relationship with the behavior of a hotel, and should not bear the liability for infringement. Dong Moumou did not fulfill the obligation of cautious attention. He did not walk on the public road. When he looked down at the parking lot, he was tripped. There was a obvious fault. The consequences of the damage were completely caused by his individual and should be responsible.

Focus

1. Whether Dong Moumou is the object of a certain hotel to fulfill his security obligations;

2. Whether a hotel sets up in the accident area is legitimacy.

(The picture comes from the Internet, invading and deleting)

Court trial

The court of first instance tried that a hotel as a hotel business department set up an iron chain around its parking lot, but did not set up any security warning signs, which caused Dong Moumou to be injured by the iron chain. The security obligations within a reasonable limit, and its behavior has certain faults. As an adult, Dong Moumou did not pay attention to his own safety during walking, and his behavior also had certain faults for the occurrence of the accident. Comprehensive consideration of the degree of faults of the two parties, confirmed that a hotel assumes a 50%liability for Dong Moumou's losses. Based on this, a hotel was judged in the first instance to compensate Dong Mou and a certain loss of 40179.45 yuan.

A hotel appealed to the original judgment opinion. The Jinan Intermediate People's Court heard that the place of the accident was located in a hotel parking lot. The parking lot was isolated from the outside world with the hotel's exterior wall, parking rod, guardrail and green belt. It is an independent place in a hotel management area. The normal road. The parking lot is adjacent to other hotel parking lots. A hotel has an isolated pile and an iron chain from other hotels. It is a normal internal management behavior. There is no fault in this behavior. Dong Moumou walked from the parking lot of the hotel involved in the case. It was not walking on the normal pedestrian passage, and he kept looking down at the mobile phone when he walked, so that he did not lift his feet to cross the isolation, and fell. Therefore, the court of the second instance determined that there was no error in the behavior of a hotel setting up a quarantine pile. Dong Moumou fell because he did not walk according to the normal road and did not pay attention to the situation of the road during walking. Essence

Post -judge language

Whether an operator violates the obligation of security and affects the establishment of its infringement liability. In judicial practice, based on the advantages of the subject and the consideration of the weak person, the operator's security obligations are often expanded and applied, which undoubtedly increases the obligation of market operators. Therefore, the application of operators' security guarantee obligations shall be standardized. Specifically determine whether to analyze whether the spatial scope and sources of obligations that meet the obligations of security guarantee and whether the source of obligations and whether they are within a reasonable limit to the three aspects of security guarantee obligations.

1. The spatial range of the operator assumes the obligation of security and guarantee

The operator should not have the corresponding security obligations at any place and time. In the law, there is certain restrictions on the obligations of security guarantee, and the obligations undertakers and right holders to contact or the right holder enter the place where the obligor needs to assume the obligations of security. During this time The obligation to security is in public places. In this case, the location of the accident belongs to a parking lot managed by a hotel. The area is isolated from the outside world with the hotel's exterior walls, parking rods, guardrails and green belts. Has specific functionality. Therefore, although Dong Moumou was injured in a parking lot managed by a hotel, he did not have the conditions to be an obligation of security.

2. Source of security and guarantee obligations

The source of security obligations is mainly three aspects: (1) the law directly stipulates. Such as Article 7 of the Consumer Rights Protection Law. (2) The obligations stipulated in the contract. Such as the passenger transport contract, the passenger company's obligation to guarantee the safety of the personal property of the passengers. (3) The attachment obligations agreed in statutory or contract. For example, when the catering industry and hotels provide services to customers, they should also protect the personal property of the guests who accept the service. In this case, there is no contractual relationship with Dong Moumou and a hotel, nor does it belong to the situation that it must provide security obligations. Therefore, from the perspective of the source of obligations, the foundation of a hotel is required to fulfill the foundation of security obligations within a reasonable range.

In addition to security obligations, a hotel to set up an iron chain in the accident area is also an important factor in determining whether it has infringement. Because the parking lot is adjacent to other hotel parking lots, a hotel has an isolation pile and an iron chain isolated from other hotels, which is its normal internal management behavior. Conversely, Dong Moumou did not comply with public order, walked at the parking lot, and did not walk on the normal pedestrian passage. It violated the principle of public order and good customs. Third, the commitment of safety and guarantee obligations shall be within a reasonable range

The law that stipulates that the security guarantee obligor bears the obligation of a reasonable limit. It is not only to avoid excessive restrictions on the freedom of behavior of the obligations, but also to balance the interests between the security guarantee obligor and the victim. In the case of the operator's responsibility, the operator's performance of the security guarantee shall be based on whether it eliminates the dangerous source as the standard.

In the dispute of infringement liability, judging whether the operator has assumed the four standards of security guarantee obligations within a reasonable range:

1. Eliminate internal unsafe factors and create a safe consumer environment for consumers. Such as public transport and bath pools do not have regular disinfection, unreasonable thrilling without informing in advance.

2. By preventing external unsafe factors, the third party's infringement of consumers. This mainly means that through the service work of the operator, the personal and property security of consumers will not be violated from the outside world and third parties.

3. Reminder, instructions, advice, and assistance of unsafe factors. Operators should make obvious warnings on various possible damage and accidents. If the operators may be dangerous to the dangerous parts or matters in the operating venue, the easy -to -slip and steep slopes, and other dangerous parts, they should use the text and patterns to give prompts or warnings in a prominent way. If necessary, the security and managers present should be reminded, discouraged, and warning at any time.

4. Active rescue for the danger that has been or is happening to avoid the occurrence of damage or reduction of damage.

Comprehensive considerations to determine whether the operator fulfills the security support obligations within a reasonable range, and whether it is sufficient to eliminate the dangerous source when the security guarantee obligation is sufficient, so as to determine whether it should bear the corresponding civil liability. In this case, there is no foundation for a hotel to bear the obligation to bear security, and it is impossible to talk about whether it is within a reasonable scope to fulfill the security obligations.

Source: "China Court of 2022", Jinan Intermediate Court

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