Simon Says: Who compensates you if you get injured in a shopping mall?

Published
09/27/2017 by

This is the thirty-first in a weekly series of legal advice provided in a short and entertaining story format.

 

每周轻松有趣法律常識故事系列 - 第31篇

 

 

Keywords: Tort, Duty of Care, Breach of Duty, Occupier Liability, Thin-skull Rule 

 

关键词:侵权行为,注意义务,违背责任,占有责任,蛋壳脑袋规则(薄头骨盖原理)

 

 

Who compensates you if you get injured in a shopping mall? 

 

如果您在购物商城受伤应当找谁理赔?

 

Jackson was shopping with his dad, Jack in Kerry Centre, Chengdu. He wanted to get his dad a Chinese Tunic Suit as a birthday present, as his dad loved Chinese style clothing.

 

曹植和爸爸曹操在成都嘉里中心购物。他想给爸爸买件中山装作为生日礼物,因为他爸爸对中式服装情有独钟。

 

After buying the suit, his dad, as a diabetic, needed to use the toilet. However, the toilet was maintained rather poorly, and water was over-spilt on the floor. Jack had a terrible fall, and broke his arm. Rushed immediately to the hospital, the bill turned out to a hundred thousand Yuan.

 

因为曹植的爸爸是糖尿病患者,所以买完中山装后需要去趟卫生间。然而卫生间环境非常糟糕,地板上的水溢的到处都是。曹操不慎狠狠地摔了一跤,胳膊骨折了。曹植火急火燎地将爸爸送去了医院,没想到医院出示的医药账单竟高达十万元人民币。

 

As Jackson didn’t buy insurance for his dad, he obviously didn’t have a hundred thousand in savings and couldn’t pay for the bill.

 

因为曹植没给他爸爸买医保,显然也没有十万元的存款来付高昂的医药费。

 

Jack went to find the shopping mall manager, Alex to tell him about the incident, “My dad had a terrible fall at your shopping mall toilet due to water that wasn’t cleared away. We now have a hundred thousand Yuan debt, and you should be responsible for it.”

 

那么,曹植就只好去找购物商场的经理诸葛亮,并将事情的来龙去脉告诉了他:“我爸爸在您的购物商场如厕时狠狠地摔了一跤,因为卫生间满地是水。现在我们欠了医院十万元的医药费,你方应对此全权负责。”

 

Alex, of course, refused, “Proof? Where is the proof? There are no cameras in the toilet to prove that your dad fell, and no evidence that the floor was wet.”

 

诸葛亮当然拒绝了:“证据呢?证据在哪?卫生间是没有监控证明你爸爸摔倒在那的,也没有任何证据证明地板是湿的。”

 

Jack said, “We have bystanders to prove that the floor was wet, and a video taken by onlookers as well. Either pay us or we expose you to the media.”

 

曹植说:“我们有证人可以证明地板是湿的,而且他们还拍了视频。要么赔偿我们要么将此事曝光给媒体。”

 

Alex rebated, “Did our staff push your father? I don’t think so. He fell on his own. It is his own fault. And moreover, why didn’t he use the disabled toilet, which has bars on the walls if he is so weak? You are not getting a penny from the shopping mall.”

 

诸葛亮反驳道:“难道是我们的员工把你爸爸推倒的吗?我觉得不可能。明明是他自己摔倒的,他得自己担起这个责任。而且,如果他真的身体不好的话,为什么不用残疾人专用卫生间?那种卫生间墙上都有扶手的。所以说,你休想从我们购物商场拿到一分钱。”

 

Can Jack get his compensation?

 

曹操到底能不能得到赔偿?

 Simon Says - Episode 31: Who compensates you if you get injured in a shopping mall?

 

Prof Simon Says:

西门教授说法:

 

Yes, Jack can get the compensation. As the management of the shopping mall, it is their responsibility to take care of users of all ages. Leaving the floor wet is a potential hazard, and a sign should be put up to warn users of the wet floor. Under China’s Tort Liabilities Law, it is the duty of management of facilities, such as a shopping mall, to maintain the safety of a public place, failing which management of the facilities shall be responsible. Water being over-spilt on the floor shall mean a breach of the duty of care and it is not a legal excuse to plead that the victim was too weak to be ignored. Under the “thin-skull rule”, it implies that if a person had a delicate skull, and a tortfeasor or assailant who did not know of that condition were to hit that person on the head, causing the skull unexpectedly to break, the responsible party would be held liable for all damages resulting from the wrongful contact, even though they were not foreseeable. The general maxim is that management of shopping mall must "take their victims as they find them".

 

曹操当然可以拿到赔偿金。因为照顾好所有年龄段的顾客是该购物商场的职责所在。卫生间湿漉漉的本身就潜在一定的危害性,而且应当贴有标语提醒顾客。根据《中华人民共和国侵权法》的规定:设施管理者如购物商场有义务确保公共区域安全,如有违背,设施管理者将全权负责。满地是水渍则违背了注意义务,因此,说受害者身体不好而没有注意到这点,就是一种推卸责任的行为。根据蛋壳脑袋规则(薄头骨盖原理),是指一个人头骨盖很脆弱,而侵权者或攻击者在不知情的情况下,袭击了这个人的头部导致其头骨盖意外破裂,那么责任方即便是未曾预料到事情的后果,也仍然要对其过失所造成的损害全权负责。通常来说,当受害者找上门时,商场管理者必须要承担起应有的责任。

 

《中华人民共和国侵权责任法》(2009年)

第三十七条 宾馆、商场、银行、车站、娱乐场所等公共场所的管理人或者群众性活动的组织者,未尽到安全保障义务,造成他人损害的,应当承担侵权责任。

因第三人的行为造成他人损害的,由第三人承担侵权责任;管理人或者组织者未尽到安全保障义务的,承担相应的补充责任。

 

Tort Law of the People’s Republic of China

Article 37 The manager of a public venue such as hotel, shopping center, bank, station or entertainment place or the organizer of a mass activity shall assume the tort liability for any harm caused to another person as the result of his failure to fulfill the duty of safety protection.

 

If the harm to another person is caused by a third party, the third party shall assume the tort liability; and the manager or organizer, if failing to fulfill the duty of safety protection, shall assume the corresponding complementary liability.

 

《中华人民共和国消费者权益保护法》(2014年)

第十一条 消费者因购买、使用商品或者接受服务受到人身、财产损害的,享有依法获得赔偿的权利。

 

Protection of the Rights and Interests of Consumers Law of the People’s Republic of China

Article 11 A consumer shall have the right to obtain compensation in accordance with the law where harm is inflicted upon their person or property as a result of the purchase or use of a commodity or the receipt of a service.

 

 

For more about this or to contact Professor Simon Choi at www.acmeardent.comsimonhkchoi@163.com, +86 13823677853 or by WeChat: simonhkchoi. 

 

ACME Ardent's Simon Choi WeChat QR Code

 

 

Simon Choi

About the Author: Professor Simon Choi

Prof Simon Choi, solicitor and linguist, is an international lawyer, qualified to practise law in England & Wales and in Hong Kong, China. Simon graduated from law schools of the Peking University, the University of London and the University of Hong Kong respectively, with an in-depth knowledge of Chinese laws and common laws and with more than 20 years experience in China practice and international trade, investment, finance, merger & acquisition. He is an adjunct professor of laws at the Zhongnan University of Economics and Law. Simon is the founding partner of Acme Ardent and can be reached at simonhkchoi@163.com or +86 13823677853.

 

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