As a popular entertainment project, the escape room game has attracted a large number of young people who seek excitement, but some game houses are required to take responsibility for the damage caused by guests because they are injured while playing the game. So, should merchants pay for injured guests playing games?
01. Brief introduction of the case
In the early morning of one day, Mr. He came to the "X Secret Room Experience Hall" to experience a thrilling game here. After careful consideration, i chose a game called "Unjust Marriage Ferry", and signed a disclaimer agreement at the request of the experience hall before the game.
With excitement and fear, Mr. He entered the dimly lit playing field. Unfortunately, however, Mr. Ho was chased and escaped by the ghost played by the staff, and was injured by falling from a table more than one meter high due to stepping on the air. Mr. Ho was then taken to the hospital for medical treatment, which was later determined to constitute a grade 10 disability. Mr. He and the experience hall were fruitless in consultation, so he sued the experience hall to compensate him for various losses of more than 250,000 yuan.
After trial, the court held that the experience hall, as the operator of the game and the manager of the game place, should ensure the safety of the game participants in the game process, but it failed to fulfill the safety guarantee obligation within a reasonable limit and should bear the main responsibility for the occurrence of the accident, so it ruled that the experience hall should bear 70% of the responsibility and compensate Mr. He for more than 150,000 yuan.
02. Legal Analysis
First of all, why does the Chamber of Secrets need to be held responsible for the injuries of its guests?
This is because the Chamber of Secrets Experience Hall has not fulfilled its security obligations. The obligation to ensure safety and security refers to the obligation of natural persons, legal persons, and unincorporated organizations engaged in business activities such as accommodation, catering, entertainment, or other mass activities to protect others from personal and property damage within the reasonable limits that they should do. The law stipulates that managers of public places or organizers of mass activities who fail to fulfill their obligations to ensure safety and cause harm to others shall bear tort liability.
Whether the safety and security obligation is violated mainly depends on whether the operator of the escape room game and the manager of the place provide facilities and equipment that meet the safety specifications, whether the corresponding notification, warning and guidance obligations are fulfilled, and whether protective measures and rescue measures are taken to ensure the personal safety of consumers, and to prompt and help consumers avoid the occurrence of damage consequences.
For games in which the environment of the escape room is relatively dim and easy to lead to unclear vision, the merchant should reasonably design the game plot, the spatial layout of the venue, the choice of props and their placement and other arrangements should be scientific and reasonable, there is no safety hazard, and sufficient reminder warning signs are set on the facilities and surrounding environments that may be safety risks, and safety protection measures are set up in the game place to avoid injury accidents. However, the experience hall in this case did not set up warning signs and did not set up protective measures at the ladder prone to danger, resulting in Mr. He being injured after stepping on the air, so he was found to bear corresponding responsibility.
Second, does the disclaimer agreement signed by the guest before the game exempt the merchant from liability?
Before playing, merchants often ask guests to sign a disclaimer agreement. For example, I sign a commitment to pay attention to personal safety when playing in the game area, be careful about the game, and if the player causes injuries caused by wrestling, falling, bumping, etc. in the game area due to their own reasons when entering the game area, the activity party will not be responsible for any responsibility" and so on.
However, the signing of the exemption agreement does not exempt the merchant from the responsibility for failing to fulfill the security obligation, and the exemption agreement is more of a reminder and warning clause. The obligation to ensure safety is an obligation stipulated by law for business operators, which cannot be exempted by way of exemption agreements, and the terms that unreasonably exempt merchants from liability are invalid clauses in the standard terms.
Again, is the guest personally responsible for his or her own injuries?
It should be clear that if the consumer participating in the game as a person with full capacity for civil conduct, he should have basic safety knowledge, and for the secret room games that have the characteristics of stimulation and terror, they should have enough cognition and understanding when choosing to participate in the game, and should foresee all kinds of thrilling scenes that may be encountered during the game.
In this case, still voluntarily choosing and participating in a game with a certain risk is an act of self-risk. Guests should pay due attention to the environment in the game venue, and if due to their own negligence, they fail to fulfill their reasonable duty of care, resulting in damage, and there is also a certain fault, which can reduce the liability of the merchant.
Finally, who is responsible if a guest is injured in the game due to the actions of other guests?
In addition to situations in which guests do not pay attention to falls during the game, the game may also encounter violations from other players.
For example, during the game, panic arises from seeing a role-playing staff member, and players collide with each other, while bumping teammates into injuries or stampede accidents. In this case, other players may also face corresponding liabilities due to their failure to fulfill their duty of care, while merchants may face corresponding liabilities due to instruction problems, personnel and place arrangement problems, etc.
If the game process is not caused by accidental injury caused by the game, but intentional injury by other players, it is a third-party infringement, the victim can ask the player to bear responsibility, if the merchant fails to fulfill the security obligation, the victim can also ask the merchant to bear supplementary liability.
Of course, in addition to the player may be injured due to safety problems such as facilities and equipment, the horror plot of the Chamber of Secrets may also cause the player to suffer psychological damage and even be scared out of the disease.
03. Lawyer's suggestion
First of all, game merchants should strengthen the protection of the safety of the game venue, in the process of providing game services, reasonably design the game plot, limit the theme of the game for minors, carry out safety reminders, inform and warn, reasonably arrange game personnel, review and pay attention to the safety of game personnel, and set up safety protection measures in game places to avoid injury accidents. At the same time, we will try our best to share various risks in the business process by purchasing fire liability insurance, public liability insurance and other related types of insurance.
Secondly, while following the trend, players should also understand the game rules and risk factors of this type of game in advance, choose whether to participate in and to what extent of the game according to their own physical and psychological conditions, and reduce their own insecurity factors.
Finally, because escape room as a new type of entertainment in recent years has been widely welcomed by the public, the relevant supervision and normative measures are not perfect, the level of venue layout and game design of a large number of escape room game stores is uneven, there are fire hazards in decoration and layout, lack of maintenance of organ props, and no restrictions on minors participating in games.
Based on this, the Ministry of Culture and Tourism, the Ministry of Public Security, the Ministry of Housing and Urban-Rural Development, the Ministry of Emergency Management, the State Administration of Market Regulation, etc. have studied and drafted the Notice of the Ministry of Culture and Tourism, the Ministry of Public Security, the Ministry of Housing and Urban-Rural Development, the Ministry of Emergency Management, the State Administration of Market Supervision on Regulating The Business Activities of Script Entertainment (Draft for Comment), and solicited opinions from the public in April 2022. After all, the healthy development of the industry is inseparable from the supervision of relevant departments and industry norms.
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Attached to the relevant legal provisions:
Article 7 of the Law on the Protection of The Rights and Interests of Consumers: Consumers enjoy the right not to be harmed in the safety of person and property when purchasing and using goods and receiving services. Consumers have the right to require business operators to provide goods and services that meet the requirements for ensuring personal and property safety.
Article 497 of the Civil Code The standard clause shall be invalid in any of the following circumstances:
(1) Having the circumstances of invalidity provided for in Section 3 of Chapter 6 of Part I of this Law and Article 506 of this Law;
(2) The party providing the standard terms unreasonably exempts or mitigates its liability, aggravates the liability of the other party, or restricts the main rights of the other party;
(c) The party providing the standard terms excludes the other party's main rights.
Article 1198:Operators, managers or organizers of mass activities in business places such as hotels, shopping malls, banks, stations, airports, stadiums, entertainment venues, or public places who fail to fulfill their obligations to ensure safety and cause harm to others shall bear tort liability.
Where damage is caused to others by the conduct of a third party, the third party shall bear tort liability; where the proprietor, manager or organizer fails to fulfill its obligation to ensure safety, it shall bear corresponding supplementary liability. After the proprietor, manager or organizer bears supplementary liability, it may seek compensation from a third party.