The takeaway brother hit and injured others on the way to deliver food, who will pay?

the rise of the food delivery industry,

Brings convenience to the fast-paced life,

In order to deliver the order on time and on time,

Delivery riders weave through the streets.

In the pursuit of time at the same time,

It is inevitable that there will be potential safety hazards,

Rider on the way to deliver food

A traffic accident results in injury

Who is responsible?

Basic facts of the case

One day in April 23, Zhang, a delivery person, drove a moped on the way to deliver food and changed lanes at a traffic light intersection on a certain road, and collided with an ordinary two-wheeled motorcycle (riding Li) driven by Wang in the right lane in the same direction, resulting in a traffic accident in which the vehicle was damaged and Wang and Li were injured. Wang was sent to the hospital for treatment after being injured, and Zhang paid 14,447.85 yuan in medical expenses to Wang.

After the accident, Zhang believed that he had a traffic accident on the way to deliver takeaways, and his company should bear part of the responsibility for his tortious acts. Later, due to the failure of the negotiation between the two parties on the issue of compensation, Wang sued Zhang, an e-commerce limited liability company and the insurance company insured by Zhang's motorcycle to the court, demanding compensation for medical expenses, nursing expenses, lost work expenses and other losses.

An e-commerce limited liability company in Linli is an agent of "a takeaway" in Linli County, and in March 2023, Zhang signed a "labor contract" with an e-commerce limited liability company. The company argued that there was no employment relationship or labor relationship between it and Zhang, but a contractual relationship, and that Zhang's infringement was his personal act, and the company should not be liable for compensation.

Court decision

Focus of dispute: Is there a labor relationship between Zhang and an e-commerce limited liability company in Linli?

According to the "Labor Service Contract" signed by Zhang and the company, "obey the arrangement, manage in a unified manner, go on and off the line on time, and shall not be late or leave early...... Labor remuneration for the previous month will be paid before the 21st of each month; Labor remuneration, telephone subsidy and other incentives refer to the latest "Rider Salary System"; Party A provides Party B with vocational training and purchases relevant insurance; Party A has the right to supervise and inspect Party B, ......" and other main contents reflect Zhang's obligation to accept the management and assessment of an e-commerce limited liability company and abide by the company's rules and regulations, which corroborate each other with Zhang's work mobile phone screenshots and salary schedules, and can also confirm that Zhang's daily work accepts the company's management and assessment, and labor remuneration is paid regularly according to its delivery volume.

In summary, Zhang essentially provided purely personal services for an e-commerce limited liability company, which were part of the company's business activities; At the same time, Zhang's work is not independent, and he accepts the company's management and assessment at any time, and it should be determined that the two parties have formed a de facto labor relationship.

According to the first paragraph of Article 1191 of the Civil Code of the People's Republic of China, if a worker causes damage to others due to the performance of a work task, and the victim requests that the counterparty to the contract (employing enterprise) assigning the work task bear tort liability, it shall be supported. In this case, an e-commerce limited liability company should bear tort liability for the damage caused by Wang when Zhang carried out the food delivery task according to the assignment.

The focus of the dispute: the proportional division of liability

According to the traffic management department's determination of the responsibility for the accident, Zhang was primarily responsible for the traffic accident, Wang was secondarily responsible, and the court determined that the delivery man Zhang was liable for 70% of the compensation and Wang was liable for 30% of the compensation himself. Mr. Zhang had taken out compulsory traffic insurance with the insurance company, and the insurance company should first bear the liability for compensation for Wang's accident losses within the limits of its insurance limit as agreed in the contract. Zhang is an employee of an e-commerce limited liability company, and when the accident occurred, he was performing a work task, and the e-commerce limited liability company should bear the liability for compensation for the insufficient part.

The court found that the total losses suffered in the traffic accident were 57,884.85 yuan. According to the law, the insurance company was ordered to compensate Wang for various losses of 18,134 yuan (32,582 yuan for compulsory traffic insurance - 14,447 yuan should be paid in advance for Xu), and the e-commerce limited liability company compensated Wang for various losses of 17,712 yuan, and Wang should bear the remaining losses.

What the judge said

At present, there has been a significant increase in employment groups such as food delivery riders, couriers, substitute drivers, and online car-hailing drivers under new technologies, new business formats, and new models, and if an accident occurs during their work and causes damage to a third party, it is more complicated to determine who bears tort liability because of the definition of the legal relationship between the workers in the new business format and the platform enterprises or the platform outsourcers they directly provide labor for. The judgment clarifies the issue of determining the main responsibility for infringement in such cases, which is conducive to protecting the personal and property rights and interests of the infringed party, protecting the legitimate rights and interests of workers in the new business format in accordance with the law, and also helping to urge platform economy enterprises to standardize employment and promote the sustainable and healthy development of the platform economy.

The judge reminded that in the busy delivery work, delivery riders must improve their safety awareness, strictly abide by traffic laws and regulations, drive cautiously, and be responsible for the safety of others and their own lives; At the same time, they should also pay attention to the protection of their own legitimate rights and interests, have a certain "legal knowledge and evidence awareness", and better protect their labor rights. Food delivery platforms and contracting companies shall abide by laws and regulations, fulfill corporate social responsibility, and shall not infringe on the legitimate labor rights and interests of riders.

Links to legal provisions

Civil Code of the People's Republic of China

Article 1165:Where the perpetrator infringes upon the civil rights and interests of others due to fault and causes harm, they shall bear tort liability.

Where it is presumed that the actor is at fault in accordance with the provisions of law, and he cannot prove that he is not at fault, he shall bear tort liability.

Article 1191: Where the staff of an employer causes harm to others as a result of performing their work tasks, the employer shall bear tort liability. After the employer bears tort liability, it may seek compensation from the employee who has intentionally or grossly negligently.

During the period of labor dispatch, if the dispatched staff member causes damage to others due to the performance of work tasks, the employing unit accepting the labor dispatch shall bear tort liability; If the labor dispatch unit is at fault, it shall bear the corresponding responsibility.

Article 1213 Where damage is caused by a traffic accident involving a motor vehicle and is the responsibility of the motor vehicle, the insurer underwriting the compulsory insurance of the motor vehicle shall first compensate within the limit of the liability of the compulsory insurance; For the shortfall of the part, the insurer underwriting the commercial insurance of motor vehicles shall compensate in accordance with the provisions of the insurance contract; If it is still insufficient or has not taken out commercial insurance for motor vehicles, the infringer shall compensate for it.

Source: Shandong High Law