In Wenshan, Yunnan, Duan took his 1-and-a-half-year-old son to a friend's house to play, he stood alone in the yard to watch others play mahjong, his son and another child less than 3 years old ran to a nearby farm to play, fell into a pond and drowned, Duan sued the farm for 242603.45 yuan.
(Case source: Qiubei County People's Court)
Duan is Xiao Huang's mother, who was only 1 and a half years old when she drowned.
On the day of the incident, Duan took Xiaohuang to a friend's house to play, duan stood in the courtyard of a friend's house to watch others play mahjong, and let Xiaohuang play with another 3-year-old child.
After more than twenty minutes, the two children ran out of the courtyard on their own and entered the nearby old Yang Kai's farmhouse to play, and Xiao Huang accidentally fell into a pool inside the farmhouse and unfortunately drowned.
After the death of the child, Duan Mou, as the mother, was devastated, he believed that Lao Yang did not fence the pond, was responsible for Xiao Huang's death, and asked Lao Yang for compensation, Lao Yang refused to compensate, and the two sides made trouble in the court.
Duan's reason for suing Lao Yang is that Lao Yang is the management user of the pool, and the pond built next to the fish pond he operates, knowing that people often go to the fish pond next to the pond to fish, there are potential safety hazards, there is no safety warning sign, no fence cover is installed, and the safety guarantee obligation is not fulfilled, resulting in Xiao Huang drowning.
Lao Yang disagreed with Duan's accusations for three reasons:
First, Lao Yang believes that Duan, as a mother, is indifferent to the safety of a 1-and-a-half-year-old child, and the child is still waddling even when he walks, but he allows him to play alone, but he is watching others play mahjong.
If Duan could always accompany the child, he could stop or fish out in time when he found the child climbing a stone ridge or falling into the water, and such a tragic case would not have occurred. Duan, as the guardian, shall be fully responsible for the death of the child.
Second, Duan and Xiaohuang are not guests who come to the farm to consume, they belong to the private intrusion, as the operator of the farm, they have no guardianship, protection obligations, and no safety guarantee obligations, so no matter what the cause of the child's death, it has nothing to do with themselves, they are not at fault, and they should not be liable.
Third, their own construction of the pool is for the guests to come to the farm fishing entertainment, Duan accused himself of not installing the pool lid and protective net is completely nonsense, the fish pond around and under the high-voltage line are equipped with warning signs, intended to remind friends who come to this entertainment to pay attention to safety.
And next to the gate and on the pillar, a prominent sign of "children are prohibited from entering the house and bear the consequences" is written, and measures have been actively taken to prevent the occurrence of risks.
Seeing this, do you think Lao Yang should take responsibility?
Legally speaking, the dispute between Duan and Lao Yang is a tort liability dispute.
In fact, the legal basis for Duan's claim is the provisions of the Civil Code on the obligation to guarantee safety.
Article 6 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases stipulates: "Where a natural person, legal person or other organization engaged in business activities such as accommodation, catering, entertainment or other social activities fails to fulfill its obligation to ensure safety within a reasonable limit and causes others to suffer personal injury, and the right holder requests that he bear the corresponding compensation liability, the people's court shall support it."
Specifically in this case, Lao Yang is the operator of the farm, which belongs to the operator of the catering and entertainment venues stipulated above, and has the obligation to ensure safety.
It is worth noting that the article does not stipulate that the safety guarantee obligation is only imposed on guests who come to the premises for consumption, and the expression of the law is "causing personal injury to others", which also includes others other than guests.
That is to say, Lao Yang should bear the obligation of safety and security for all people who enter his business premises, and take reasonable measures to eliminate or minimize potential safety hazards for possible risks, so as to prevent others from being harmed, which of course includes 1 and a half years old Xiao Huang.
Although Yang has a security obligation to Xiao Huang, can Xiao Huang's death be completely attributed to Yang?
Of course not, article 26 of the Civil Code stipulates that parents have the obligation to raise, educate and protect minor children.
Article 1173 stipulates that if the infringed party is at fault for the occurrence or expansion of the same damage, the liability of the infringer may be reduced.
Obviously, in this case, Duan, as a mother, allowed the 1-and-a-half-year-old child to play alone, failed to fulfill the obligation of protection, was subjectively at fault, and was most responsible for the death of the child.
The Court held that parents had an obligation to raise, educate and protect their minor children. Xiao Huang is only 1 and a half years old and has no capacity for civil conduct, completely unable to recognize the consequences of his own actions, and is in need of the full companionship of his parents and guardians, who have a complete obligation of protection.
Duan allowed the child to play alone, causing the child to enter the pool on the west side of the villa to play, play with the water with a small stone, and carry out dangerous behavior, resulting in Xiao Huang drowning and dying;
The distance between Xiao Huang and the place where the guardian is located is more than 600 meters, and there is no guardian's supervision from the time of leaving to the occurrence of the drowning incident. Duan should bear the main responsibility.
At the same time, it was pointed out that although Yang mou installed signs such as "children are prohibited from entering and bear the consequences", "water depth is dangerous, swimming is prohibited", "under high-pressure line, fishing is strictly prohibited" and other signs at the gate and next to the fish pond, he did not actually take specific measures to prevent people without civil capacity from entering the villa.
Instead, the large wooden door is left open, allowing personnel to enter and exit, failing to fulfill the obligation of safety and security within reasonable limits, failing to fulfill the management responsibility, and also having certain responsibilities.
Finally, the court ordered Yang to bear 6% of the liability and compensate Duan for 48,442 yuan.
For this case, some people believe that the 1-and-a-half-year-old child does not even know the words, even if the entire pool is filled with warning signs of "water depth danger", the child does not realize the danger, Duan Mou claimed on the grounds of "not setting up a safety warning sign", it is too strange, do you think?
Welcome to leave a comment
Follow @Haozi's statement
Share legal classics every day
Read the case, taste life, and see the variety of society! #Law Popularization Action ##Wenshan ##云南 #
