On July 23, a tiger injured a tiger at The Badaling Wildlife Park in Beijing, killing one person and injuring the other. Ms. Zhao, a 32-year-old tourist, was dragged away by a tiger and injured when she got off the bus at the Siberian Tiger Park, and her mother, Ms. Zhou, was bitten and killed by a tiger when she got out of the car to chase her daughter. On the 12th, the injured Ms. Zhao told the media for the first time about the incident, saying
Getting out of the car because of motion sickness is not a quarrel
At the same time, Ms. Zhao's father told the media that they did not agree with the zoo on the amount of compensation.
Mr. Zhao said that on August 29, during consultation with Badaling Wildlife Park, the park proposed to determine losses, responsibilities and compensation in accordance with the method of handling traffic accidents. For the deceased Zhou, the two sides agreed to a loss of 1.245 million yuan and reached an agreement. The family believes that the zoo should bear full responsibility for Zhou's death, but the zoo said it only assumed 15% of the responsibility and compensated it. For the injured Ms. Zhao, the family member proposed to lose more than 1.5 million yuan, the family side assumed 20% to 30% of the responsibility, and the zoo assumed 70% to 80% of the responsibility; but the zoo only recognized 745,000 yuan and did not agree with the family's compensation for mental losses and later treatment costs.
Mr. Zhao said that as of now, the zoo side has not given a clear answer, and the two sides have not reached an agreement.
According to media reports, on August 24, Yanqing District reported the results of the investigation on the tiger bite incident, and found that tourists did not comply with the regulations, ignored the warning, and got off the car without authorization, which was not a production safety responsibility accident.
Today, some media reported that the lawyer representing the victim of the "7.23" tiger injury accident published a questioning opinion
After the "7•23" Siberian tiger casualties caused by tourists in Yanqing District, the Yanqing District Government set up a joint investigation team led by the District Safety Supervision Bureau and with the participation of multiple departments to investigate the incident. As lawyers, after accepting the entrustment of the victim's family, we also immediately began to work, collected information and relevant laws and regulations, conducted detailed questions on the parties, went to the Yanqing District Public Security Bureau to view complete video materials, read the investigation records and the forensic examination report of the deceased, communicated with the investigation team, and invited authoritative tort law experts in China to conduct legal arguments on the incident. In the performance of our duties as lawyers, faced with various restrictions such as not allowing copies of video recordings, not allowing relevant documentary evidence to be reproduced, not being able to conduct on-site inspections, not being able to meet relevant witnesses, and not being able to independently investigate and collect evidence, we have done our best to do a good job in the attitude of "being entrusted by others and being loyal to others", striving to restore the truth of the incident and find legal remedies for the victims.
On August 23, 2016, the investigation team of the Yanqing District Government issued the "Report on the Casualties Caused by the "7•23" Siberian Tiger in Yanqing District" (hereinafter referred to as the "Report"), which we believe that the report deliberately conceals some facts, and there are many untruths or one-sided points in the facts described, and the illegal acts and major faults of Beijing Badaling Wildlife World Co., Ltd. (hereinafter referred to as the "Park Party"), the party responsible for the accident, are concealed, understated, and the responsibility for the accident is unfairly pushed to the victim tourists, and its "conclusion" It is to protect the park and shirk the responsibility of poor supervision for the relevant government departments, and does not reflect the highest respect and attention to the safety of tourists' lives! Entrusted by the victim and his family, the following challenges are made to the report:
First, the "self-driving tour" project in the park's beast area has not been risked, there are major safety hazards, and it is illegal operation, and the report deliberately covers up this
Article 42 of the Tourism Law of the People's Republic of China, which came into effect on 1 October 2013, stipulates: "The opening of scenic spots shall meet the following conditions and listen to the opinions of the competent tourism departments: (1) ... ;(2) Have the necessary safety facilities and systems to meet the safety conditions after a safety risk assessment; It can be seen that after the implementation of the Tourism Law, all scenic spots open to tourists must conduct safety risk assessments in accordance with the law and meet the safety conditions, which is a mandatory provision of the law (the "should" mentioned in the law is a mandatory norm)! Article 17 of the Work Safety Law of the People's Republic of China also emphasizes: "Production and business units shall have the safe production conditions stipulated in this Law and relevant laws, administrative regulations and national or industry standards, and those who do not have the conditions for safe production shall not engage in production and business activities." ”
This means that without a safety risk assessment, it is impossible to determine whether the safety conditions are met and you are not allowed to engage in business activities! In order to be responsible for the personal safety of tourists, the state stipulates that ordinary scenic spots still need to carry out safety risk assessment, and the park, as the producer and operator of the national AAA-level tourist attractions, should know the above provisions of the Tourism Law and the Safety Production Law, and when operating high-risk projects that allow tourists to drive into the beast area without other protective measures, they should conduct risk assessment with the highest standards. However, after the law has been clearly stipulated, the park still continues to open without a safety risk assessment, which is a continuous illegal act of ignoring the safety of tourists' lives driven by interests! The report's clear provisions on the Tourism Law, the Work Safety Law and the above-mentioned illegal acts of the park did not mention it at all, and there was a suspicion of deliberate avoidance! Although the report suggests that the park should entrust a third-party institution with corresponding qualifications to issue a safety assessment report, this is a misinterpretation of the mandatory provisions of the law into a non-binding recommendation, which is essentially a cover-up for illegal acts and the long-term inaction of relevant government regulatory departments.
Article 21 of China's "Provisions on the Management of Urban Zoos" stipulates: "Zoo management institutions shall improve various safety facilities, strengthen safety management, and ensure the safety of tourists, managers and animals." Article 50 of the Tourism Law stipulates: "Tour operators shall ensure that the goods and services they provide meet the needs of ensuring the safety of persons and property." Article 18 of the Law on the Protection of Consumer Rights and Interests also stipulates: "Business operators shall ensure that the goods or services they provide meet the requirements for ensuring the safety of persons and property." "It can be said that different systems and different levels of laws and regulations in China have made provisions for operators to protect the personal safety of tourists and consumers."
Visitors entering the free-range beast (lion, tiger, bear, leopard, etc.) area is more dangerous than entering a normal zoo or scenic spot! We believe that the park's self-driving tour mode, on the basis of illegal operation, violates the safety requirements of the above laws, and there are major safety risks in itself: as different individuals, the cognitive ability, judgment ability and disposal ability of self-driving tourists vary from person to person, and it is entirely possible to get off the car due to various factors, resulting in danger. For example, self-driving car shutdown, vehicle failure, flat tire, spontaneous combustion, sudden illness of tourists, emergency poop, etc., may make individual tourists forget the dangerous environment they are in, and subconsciously open the window or leave the car. The park set up a park tour mode for tourists to drive into the beast area by themselves, and there is no other protective measures to isolate, which is to think that all tourists have a fairly high cognitive ability, can pay the greatest attention to their own safety, and ignore the difference in the reaction of each individual when an emergency occurs. Warning signs and tweeters are not mandatory measures, and neither can force tourists from opening windows or getting off the bus.
Facts have also proved that tourists who have been injured by tigers out of their own car out of negligence have occurred many times: on October 27, 2012, Ms. Liu, a tourist, drove herself to play in the beast area of the park, passing through the South China Tiger area, got off the car to urinate, was suddenly thrown down by the tiger, and her face was torn and bitten. The most recent tourist get-off accident occurred on August 12, 2015, less than a year after the accident, in the Qinhuangdao Wildlife Park, which was the same legal representative as the park at the time, a female tourist got off the bus on her own in the White Tiger Park, was attacked and injured by a tiger, and died after rescue. Not only ordinary tourists, but even professionally trained park staff will get off the bus in violation of regulations, such as on August 28, 2014, a patrol officer of the park got off the bus in Bengal Tiger Park for violating the regulations and was directly bitten to death by three tigers. Professionals will still get off the bus because of negligence, how can they be harsh on ordinary tourists? Therefore, this model transfers the safety risks of high-risk projects to ordinary tourists without professional cognitive ability through simple notification and warning, which cannot ensure the safety of tourists in itself, just like if tourists in roller coaster projects can open insurance by themselves, sign agreements that are not allowed to open, and paste warnings that are not allowed to open, they cannot pass the safety assessment and operate. We believe that the occurrence of personal injury accidents in this model is inevitable and accidental. Once an accident occurs, the park will be hard to blame.
The park's self-driving tour model has long been abandoned by other wildlife parks at home and abroad as unable to ensure the safety of tourists. In foreign countries, the American Zoological Society recommends trenches: "The reference ratio of trenches is 20 feet wide, and when releasing water, the amount of water should account for half of the trench, and the depth of the water must be twice the height of the enclosed animal." "Tanzania National Park also has self-driving tours, but the park stipulates that the car must be accompanied by a professional guide of the national park to control the safety risk in the hands of the park; in China, on November 17, 1999, the driver Li Moumou of the Shanghai Wild Animal Park was attacked and killed by six Siberian tigers because the driver Li Moumou violated the regulations in the tiger area of the Shanghai Wild Animal Park, and the Shanghai Wild Animal Park was claimed 3 million. Since then, the park has canceled the self-driving tour project after argumentation, and no similar accidents have occurred. Wildlife parks in other parts of the country, such as Xi'an, Shanghai, Guangzhou, and Hangzhou, continue to use the mode of tourists entering the park by car, or require tourists to take self-owned cars with protective facilities and security personnel, or use chasms, power grids, glass curtain walls, etc. to isolate tourists' self-owned vehicles from beasts of prey, which effectively avoids the occurrence of similar accidents.
According to public reports in recent years, only Badaling Wildlife Park and Qinhuangdao Wildlife Park have adopted a self-driving tour mode without protective measures, and there have been many accidents in which tourists get off the bus and injure people. After the accident, the park added a power grid in the beast area, isolated the self-driving car and the beast, and to a large extent eliminated the safety hazards of the original model, which also showed that the original model had serious defects. On the surface, the direct cause of the injury to tourists is caused by their self-driving off, and the root cause is that the park's safety facilities are insufficient, the tour mode has safety hazards and has not been assessed by safety!
In the report, the investigation team defended the park side: "The state has not established administrative approval for the self-driving tour project of the wildlife park, and there is no relevant standard in the industry." However, the state has not set up a special administrative examination and approval of the project, by no means to say that you can set up high-risk projects at will and ignore the safety of tourists, on January 22, 1994, the National Tourism Administration promulgated the "Detailed Rules for the Implementation of the Interim Measures for Tourism Safety Management", paragraph 6 of article 6 stipulates: "Newly opened tourism enterprises and institutions must apply to the local tourism administrative department for the inspection and acceptance of safety facilities and equipment, safety management institutions, safety rules and regulations before opening, and those who fail to pass the inspection and acceptance shall not open for business." Even if the beast area is regarded as an ordinary scenic spot, it should be opened through safety inspection and acceptance when it opened in 1998; after the promulgation of the Tourism Law in 2013, all scenic spots must go through a safety risk assessment and meet the safety conditions before they can continue to open to the public, otherwise it is illegal! In the industry, in accordance with the deployment of the State Forestry Administration, the China Wildlife Conservation Association in 2004 presided over the compilation of the "Wildlife Park Safety Code", which stipulates the safety design of facilities and equipment: the design of the exhibition area and the cage, to avoid direct contact between tourists and potentially dangerous animals, and to set up a power grid device for animal escape in the ferocious animal stocking area, which is inspected every day. Moreover, the advanced safety management models of other wildlife parks in China should be learned from and learned. The report proposes advanced safety practices for the park in the work recommendations, and also reveals serious defects in the park's tour mode.
2. The report misrepresented the emergency rescue and disposal process of the park after the accident, concealing the fact that the park was slow to respond to the emergency rescue
First of all, the park did not have an emergency plan to deal with Zhao Mou's improper getting off the bus. In this accident, Zhao mou felt motion sickness after entering the tiger area, and after going to the exit, because he did not know that the tiger park road was U-shaped, the exit turned back to the vicinity of the tiger house, mistakenly thinking that he was far away from the tiger and safe, and got out of the car to replace her husband to drive. The report said: "The driver of the No. 3 patrol car found Zhao Mou getting out of the car and immediately used the car loudspeaker to warn and shout to ask him to get on the car." As we all know, tigers belong to the feline family and are very sensitive to sound, and Yellowstone National Park in the United States stipulates that it is illegal to shout at will to attract the attention of animals. When Zhao got off the car, the tiger was on the platform 13 meters away from the west side, and did not necessarily have found Zhao; the garden patrolman should know that zhao got off the car near the tiger house, there was a tiger on the platform, and Zhao who had already got off the car was between the patrol car and the tiger, if the loudspeaker sounded, it would inevitably alarm the tiger, causing the tiger to find and attack Zhao, so it was necessary to calmly deal with Zhao's unauthorized get off the car according to the principle of not alarming the tiger, such as driving the patrol car directly to the vicinity of Zhao to wave and warn.
But unfortunately, the park staff, who should have understood the habits of the tigers, chose to directly use the car loudspeaker to shout warnings. Therefore, it is completely excluded that it was because the loudspeaker sound alarmed the tiger, which led to the tiger finding and attacking Zhao. This also fully shows that the park has no emergency plan for tourists to suddenly get off the bus, and hastily responded to it, and the measures are improper, and the result is counterproductive. In the work suggestion section of the report, it is emphasized that the education and training of employees should be strengthened and emergency drills should be improved, which shows that the park's safety education training and emergency drills for employees are lacking. In addition, the report said in the cause determination that Zhao Mou ignored the warnings of the relevant management personnel and other tourists in the park and got off the car without authorization, which was inconsistent with the facts. In fact, Zhao was warned after getting off the car, and the report also mentioned that the patrolman's warning was to ask him to "get on the car", not to warn him to "not get off the car", and then said that Zhao ignored the warning and insisted on getting off the car, which was a contradiction.
Secondly, the park did not rescue in time, resulting in the death of Zhou. Article 79 of the Tourism Law stipulates: "Tour operators shall ... Formulate a safety protection system and emergency plan for tourists. "As a wildlife park operator, the biggest safety risk is that animals hurt people, and the park should have sufficient plans to carry out timely and effective rescue when it is found that the beast hurts people." The report said in the "emergency rescue and disposal process" section that the No. 3 patrol car parked next to it after the incident "sounded the alarm and rushed to the asphalt road to drive the tiger away", and the video released by the park also showed a patrol car rushing over immediately, giving the public the impression of a timely rescue. But in fact, the personnel on the patrol car did not take any effective rescue measures, and the unpublished full video showed that it only parked the car in the last position shown in the public video on the asphalt road, banging the throttle and honking the horn in the car, and its behavior did not exceed what any ordinary road tourists could do, and it was not effective to drive away the tigers that were biting the "prey" on the platform.
The full video also shows that the injured husband Liu Mou continuously slapped the car door and went around the vehicle for help, and the patrolmen did not get out of the car to rescue. According to Liu's statement, the patrolman's answer was: "We don't dare to get out of the car, in this case we can't save." The report described this as how absurd it was that the driver had complied with the "strictly forbidden to get off the bus in the beast area"! In the face of saving lives, how could a park professional with a rescue obligation refuse to rescue on this basis? So if someone drowns in the pond where "deep access is strictly prohibited", good swimmers are not allowed to go into the water to rescue them? The real reason is that the park has no plan to deal with animal injuries! Because the patrol car is not equipped with anesthesia gun, electric baton or any other effective rescue tool and equipment, the patrolman cannot get out of the car with his bare hands to rescue! Afterwards, the garden said that the park was only equipped with an anesthesia gun, and it could only be used after two people signed it, and it was impossible to use it to save people.
The full video also shows that in the most precious ten minutes of rescuing people, many patrol cars could not drive the platform where the tiger and the victim were located, and there was no rescue tool or equipment, and all they could do was repeatedly rush or detour to find other paths to approach the tiger. From 15:00:33 to 15:00:33 to 15:22:27 when the Jinbei car pulled the victim away, 21 minutes had passed, and it was 44 minutes after being sent to the hospital.
During the period, the rescue personnel of the park did not have first aid knowledge, nor did they take any first aid measures such as hemostasis and bandaging for the victim; they should have called 120 first aid immediately as soon as they knew that the tiger was injuring people, in order to fight for the rescue time, and the report showed that the park only dialed 120 17 minutes after the incident (according to the family's aftermath, the park side reported 120 with a traffic accident and concealed the occurrence of the tiger injury incident), resulting in the ambulance not being able to arrive in time to carry out on-site first aid! The "Forensic Autopsy Appraisal Certificate" issued by the Yanqing District Public Security Judicial Appraisal Center confirmed that the cause of Zhou's death was "traumatic and hemorrhagic shock death", in other words, Zhou did not cause fatal injuries after being attacked by a tiger, but died due to excessive blood loss from the wound. It can be seen that the report said that the park's "after-the-fact work was carried out in an orderly manner, and the on-site disposal and rescue was carried out in a timely manner" was completely inconsistent with the facts, and Zhou's death was directly causal and causal to the continuous fault of the park party such as not effectively driving the tiger, not dialing 120 in time, and not rescuing in time.
The report only lightly mentions at the end that the park's "staff training and assessment system has not been fully implemented, and there are problems of training without assessment and lack of some emergency drill materials." This is also a disguised confirmation that the park has failed to meet the requirements of the law in terms of safety system and emergency plan.
Third, the report deliberately concealed the autopsy report of the deceased Zhou, which avoided the conclusion that Zhou died of shock due to excessive blood loss in the autopsy report, and covered up the delay in rescue of the park
As a matter of common sense, for the injury status and cause of death of the accidentally deceased corpse, any unit or individual should take the autopsy report issued by the forensic doctor as the authoritative conclusion, even if the autopsy report is revoked by legal procedures, the re-made autopsy report should be taken as the accurate conclusion, and the medical record of the medical institution should not be cited as the conclusion.
On the day of the accident on July 23, the security brigade of the Yanqing Branch of the Beijing Municipal Public Security Bureau entrusted the Yanqing District Public Security Forensic Appraisal Center to conduct a forensic examination of the deceased Zhou, and at 16:45 on July 24, two forensic doctors conducted a detailed examination of Zhou's body and issued the Forensic Autopsy and Appraisal Certificate of Jingyan Company Jian (Pathology) [2016] No. 014; on August 3, 2016, the Yanqing Branch of the Beijing Municipal Public Security Bureau issued the Yangong Zhi Death Investigation [2016] No. 19 Investigation Report on The Death of Zhou Keqin" These two most authoritative materials (formerly known as the autopsy report) should be used to express zhou's injury and cause of death, but what is surprising is that in the report issued by the joint investigation team of the government department, these two materials are not mentioned at all, but instead quote a large section of Yanqing Hospital's medical history to express Zhou's injury! Obviously, there are a number of differences between medical records and forensic autopsy reports, such as:
1. Medical record: "Left occipital oblique skin laceration, about 15 cm long, probing deep into the atlantoaxial spine, joint fracture"; autopsy report: "The left occipital part can see 1 scalp plug fissure, the wound is 7.0 cm long, the wound is deep, and it is walking downwards." "The autopsy report reported that the length of the left occipital wound was reduced by half, and there was no mention of joint rupture.
2. Medical records: "oblique skin laceration on the left neck, about 5 cm long"; autopsy report: "Neck: no injury." ”
3. The autopsy report said: "1 contusion laceration can be seen on the right back, and the wound is 2.0 cm long" The medical record does not describe this.
4. If the medical record does not have a cause of death, the medical institution has no right to determine the cause of death.
The descriptions of the injuries of the deceased vary widely between medical records and autopsy reports, so why is there such an anomaly as using medical records in official reports to conceal more authoritative autopsy reports? There should be only one reason: to avoid the determination of the cause of death in the autopsy report! The Forensic Autopsy Appraisal Certificate and the Investigation Report on Zhou Keqin's Death clearly and unmistakably state that Zhou Keqin died of traumatic and hemorrhagic shock. In the case that the medical records and autopsy reports do not describe the arterial injury, excessive blood loss and death mean that the rescue of the park is not timely, and the operator's obligation to the consumer is not fulfilled in a timely manner! However, in the "determination of nature", the report has already determined that the park side "carried out the work in an orderly manner after the fact, and carried out on-site disposal and rescue in a timely manner", so the report must avoid the cause of death, which is a major matter that cannot be ignored in the accident of accidental death. It can be seen that the report has a clear tendency to protect the park and strive to shirk responsibility for the park.
Fourth, the park's safety publicity and warning education for tourists to enter the park are seriously lacking and formal, and the report does not objectively express this
Article 18 of China's Law on the Protection of Consumer Rights and Interests stipulates: "For goods and services that may endanger the safety of persons and property, a true explanation and clear warning shall be given to consumers, and the methods of correctly using goods or receiving services and the methods of preventing the occurrence of hazards shall be explained and marked." "As we all know, for highly dangerous recreational activities, whether in china or in the world, safety warning education and training for tourists is a common practice in the industry, such as diving activities in bathing beaches, the safety training time is generally not less than 20 minutes. The self-driving park tour mode in the beast area is highly dangerous, and the park as the operator should pay attention to the safety warning education for tourists before entering the park while taking safety precautions, so that tourists can understand the habits of animals, be clear about the planning and road design of the park, understand the behaviors that may endanger personal safety, and know how to ask for help in case of unexpected situations. In this accident, the victim was in the self-driving car to roll down the window directly to buy tickets, and in a simple multi-person use of the form filled in the name and license plate number, the form is the report signed with the park "self-driving into the park tour car damage liability agreement", the first few lines of the form did not require tourists to read, the form was taken away by the park.
According to our post-inspection, the core content of the agreement is consistent with the title, which means that if the vehicle is damaged by animals, the park will not compensate. This has nothing to do with raising the personal safety awareness of tourists, but only advocating the invalid "overlord clause" of the merchant's exemption! And the so-called "six strictly forbidden notice", its pattern is similar to the ticket, the handwriting printed on the tiger picture is very unobtrusive, and the ticket is handed to the tourists together, the ticket inspector did not emphasize the notice, and did not urge the tourists to read carefully, most of the tourists are stuffed with the ticket into the car, they drove into the park, so that after the incident, the victim did not know that there was this notice. The ticket sales staff verbally informed the precautions, the speed of speech was hurried, perfunctory, and the whole ticket purchase and "safety education" time was only about 1 minute. In addition, there is no full-time personnel to carry out any other form of safety education for tourists, no introduction to the habits of animals in the beast area, no explanation of the layout, division, roads and dangerous areas of the park, and no plan to inform how to deal with emergencies, which is enough to show that the park has seriously misled in fulfilling its obligations of safety warning education.
It should be mentioned that the planning and design of Badaling Wildlife Park is also very unreasonable. The park has set up a beast area, a leisure area and a docile animal area, and it is not forbidden to get off the bus for the whole time. The division of the beast area and the leisure area is blurred, the route that is strictly forbidden to get off the bus and can be walked is not clear, and there are crossings, which is very easy for tourists to misjudge. In this case, the park should make visitors understand the division of the park and the design of the road before entering the park, and know where the danger area is. Zhao Mou just didn't know the terrain, didn't know that the U-shaped road turned back to the vicinity of the tiger house, and mistakenly thought that he was far away from the danger zone and let down his vigilance before getting off. We believe that the safety warning education before entering the park is so formal, not to really improve the safety awareness of tourists, but to transfer the obligation of the park to ensure the safety of tourists after an accident to the tourists themselves: tell you that you are not allowed to get off the bus.
For the major problem of lack of safety warning education before visitors enter the park, the report is still hidden for the park and does not mention it at all. However, in the work proposal, it was also proposed: "Badaling Wildlife World needs to further increase the safety publicity of tourists, strengthen publicity awareness, improve the level of publicity, innovate publicity methods, improve tourists' safety awareness and crisis awareness, and let tourists remain vigilant at any time during the tour." This expression once again uses the method of "there is no silver in this place for three hundred and two", which confirms that there are major deficiencies in the park's safety warning education for tourists.
5. The report's determination of the cause of the accident is all due to the tourist's self-driving behavior, and does not mention any fault of the park in terms of safety and security obligations, which is obviously unfair and leads to the qualitative error of the report
As for the cause of the accident, the report said: "First, Zhao did not comply with the regulations on the strict prohibition of getting off the bus in the Badaling Wildlife World Beast Area, ignored the warnings of the relevant management personnel and other tourists in the park, and got off the car without authorization, resulting in him being attacked and injured by a tiger. Second, after Zhou Mou saw his daughter being dragged away by the tiger, he was eager to save the woman, did not comply with the regulations of the Badaling Wildlife World Beast Area strictly prohibiting getting off the bus, and the rescue measures were improper, resulting in her being attacked and killed by the tiger. "This practice of attributing only to the victim's conduct and ignoring the operator's obligation to guarantee safety is a basic attribution error and contradicts the provisions of the existing law."
China's Consumer Protection Law stipulates: "Consumers enjoy the right not to be harmed in person and property when purchasing goods and receiving services. "Business operators shall ensure that the goods or services they provide meet the requirements for ensuring personal safety and property safety." The obligation of safety and security of business operators is based on the principles of good faith and fairness of business operators in commercial activities, including the obligation of risk prevention, the obligation of risk warning, the obligation of timely rescue after the occurrence of danger, and the obligation of bearing damages. Only by strengthening the safety and security obligations of business operators can we ensure the balance of interests between consumers and operators in unequal status and information asymmetry. Specific to this accident, Article 81 of the Tort Law stipulates: "If the animal is raised and causes damage to others, the zoo shall bear the responsibility, but if it can prove that it has fulfilled its management duties, it shall not be liable." That is to say, as long as there is an animal injury accident, the law first of all presumes the fault of the park party. The park fully proves that it has fulfilled its safety and security obligations and fulfilled its management duties in order to be exempted from liability.
This questioning opinion has clearly pointed out that the park has opened the self-driving tour to the outside world without safety assessment to carry out illegal business activities, the self-driving tour without protective measures in the beast area project itself has major safety hazards, the emergency incident is not planned and the response is improper, there are no effective measures and means to rescue the injured tourists, the rescue delay leads to excessive blood loss and death of the victim, the lack of education for tourists entering the park, insufficient warnings and other major management faults, which proves that the original party is far from fulfilling its management responsibilities and should bear the main responsibility for the occurrence of the accident. After the incident, the park side carried out business suspension and rectification, hired a third-party safety production assessment agency to conduct a safety assessment, and then changed the "Self-driving Vehicle Entry Vehicle Damage Liability Agreement" before entering the park to the "Self-driving Vehicle Entry Tour Agreement" before entering the park, adding bold font and underlining three clauses, including the must close the door lock, strictly prohibit leaving self-driving vehicles and opening windows, park help telephone, etc.; on both sides of the road in the beast area, 36 warning signs were added; in the tiger area and the bear area, the power grid was installed. Visitors were isolated from the beasts of prey; more patrol cars and patrollers were arranged in the park. These improvements also show that there were various management problems in the park before the incident. However, on the one hand, the report points out a large number of problems in the form of "work suggestions" at the end of the report, and on the other hand, it does not mention the fault of the park in fulfilling its safety and security obligations at all in the "determination of reasons", which is obviously not objective and fair.
We believe that the injured Zhao Mou got out of the car out of confidence that he could avoid danger and violated the regulations, which constituted the negligence of overconfidence in civil law and had certain responsibility for the occurrence of the accident. However, Zhao's behavior is different from the conscious behavior of lying on the rail, jumping off the building, and provoking ferocious animals, and does not belong to the situation in which the victim himself bears all the legal responsibility; the self-driving tour in the park opened the beast area has not been assessed by safety, it is illegal operation, and it cannot meet the requirements of ensuring the safety of tourists, whether in terms of hardware such as facilities and equipment, or in terms of safety education, emergency measures and other software, and should bear the main responsibility for the consequences of Zhao's disability.
For the deceased Zhou, even as a mother, he did not have a legal obligation to rescue Zhao, and the legal rescue obligation to the consumer was the park as the operator. In the case that the park cannot properly deal with Zhao's getting off the car and cannot prevent the tiger from injuring people at the first time, Zhou Mou's getting off the car to rescue based on family affection is actually a normal reaction of human nature, and it is also a helpless move, and should not be regarded as subjective intention or gross negligence in the occurrence of the damage result. If a mother sits by and watches the tiger nibble on her daughter, it is a human tragedy! Who dares to say that it was not the mother's sacrifice that saved her daughter's life? The report accused Zhou of violating the regulations and improper rescue measures, which was caused by his own causes that led to the occurrence of death consequences, obviously challenging the basic social ethics for the sake of the park's escape! We believe that Zhou mou saved people without fault, the park failed to protect the personal safety of tourists, and the delay in performing the rescue obligation led to Zhou's excessive blood loss and death, and should bear full responsibility for the consequences of Zhou's death.
VI. Conclusion:
In summary, the investigation team determined in the report that the "7.23" Siberian tiger casualty incident caused by tourists was not a production safety responsibility accident, contrary to the basic facts, it was a breach of responsibility for the park and the government supervisor and the safety supervision department! Judging from the fact that there has been no safety assessment from the self-driving tour of the scenic spot to the time of the incident, the park has violated the "Tourism Law" and the "Safety Production Law", constituting a continuous illegal operation, and the relevant government departments should be responsible for management negligence! If the government can pay attention to the incident of tourists getting off the bus and urinating and being injured by tigers on October 27, 2012, the park was ordered to invest funds in safety rectification and install power grids and other facilities as soon as possible, which can completely avoid the consequences of the patrolman getting off the car in August 2014 and the consequences of the death and injury of the tiger when the tourists got off the car in this accident! However, the accident in 2012 only compensated the injured person for medical expenses, and there was no responsibility investigation, and the park did not have the pressure to invest funds to increase safety facilities and improve safety management. We believe that the occurrence of many of the above accidents is related to the local government's safety supervision, the ineffective supervision of the competent departments and the fact that the park has indulged in the park, and we hope that the higher-level government can re-strictly characterize this major accident with the highest respect for people's right to life, prompt the park to thoroughly rectify, and finally fundamentally eliminate the recurrence of similar accidents!
Lawyer representing the victim of the "7.23" tiger injury accident
Wen Xiufeng Yang Zhenzhong Bai Xiaoqiang
September 2016
Regarding this questioning opinion, netizens have different views on this, and some think that it is written very professionally
However, some netizens expressed dissatisfaction
"What do you think?"
Finishing: Xin Ye
General: Legal Blog, 987 Private Radio, Beijing Times
Fujian Rule of Law Daily Original: Unauthorized reprinting is prohibited
For permission to reprint, please contact: qq:2454105845
Don't miss the highlights of the past