--Respective responsibilities of consumer and business operator

Background

Zhang and his family visited the Maren Peak scenic spot run by the Maren Peak Tourism Co on Sept 8, 2013 and bought tickets to the slide way recreation project. Zhang ended up with a bone fracture of the right leg when his shoe sole bumped into the side wall of the slide way. Zhang required medical treatment in hospital for 19 days. Evidence proved that Zhang’s right lower extremity suffered disability to the tenth degree and 8,000 yuan was still needed for follow-up treatment. The tourism company paid 31,770 yuan for Zhang during the hospitalization period, 500 yuan for a thigh brace, and 3,000 yuan for other fees. But the two sides failed to reach an agreement on mental distress compensation, so Zhang filed a lawsuit.

Ruling

The court of original jurisdiction held that Zhang’s accident was a result of the tourism company’s failure to evaluate risks in the slide way and to prepare for any precautions, and therefore was prepared to order the company to take full responsibility. However, as a mitigating factor, the court found that the company did set up warning boards at the entrance of the slide way and Zhang’s accident was partly caused by his looking back to take care of his daughter. It ruled that the tourism company compensate Zhang with 30,588 yuan, 70 percent of Zhang's financial loss, and dismissed Zhang’s other claims.

Unsatisfied with the ruling, Zhang appealed to a higher court, claiming that it was unreasonable to shoulder 30 percent of his loss, because the tourism company was more at fault. He also held that the method of calculation of his loss was not justified and that hospitalization time for his second operation should be factored in.

The tourism company argued that the slide way needed no risk evaluation. The accident rate was extremely low, so the project didn’t involve high risks as Zhang claimed. The accident was caused by Zhang’s own negligence, so Zhang should take 30 percent of his loss. The company also disagreed with Zhang’s submission that the compensation calculations were too low. In addition, before the accident it had set up a safety information board for visitors and had taken care of Zhang after the injury, facts showing it had fulfilled its responsibility. The company asked the court to uphold the original ruling.

On the basis of original and new evidence, the appeal court held that Zhang and the tourism company had established a contractual relationship when Zhang bought the ticket. Both parties were required to live up to their respective responsibilities based on honesty and credibility.

The recreation project had not gone through a risk evaluation and there was only a notice board at the entrance to remind tourists of relevant issues. There were no personnel assigned to guide and supervise tourists in the process of sliding and no proper measures taken to remind them of risks. Therefore, the company failed to fully carry out its responsibilities towards its customers. For his part, Zhang was required to abide by rules made by the tourism company when he bought the ticket. However, Zhang violated the rules by turning to look back at his daughter, which evidently breached the contractual agreement. Therefore, both parties should take responsibility.

The higher court upheld the ruling of the lower court.

Significance

Service businesses take on security obligations in their operations. They can take precautions such as setting up warning signs in obvious positions, providing related security facilities, formulating emergency plans and measures, and increasing the security awareness and skills of staff. The case demonstrates that if enterprises fail to carry out their responsibilities, they will be held accountable.

On the other hand, consumers or travelers should abide by necessary rules in using services. They need to read relevant warning boards and carry out their own responsibilities. If they don’t, they must shoulder certain consequences as well.