Distressed! Mother bows her head to play with her mobile phone, and a 3-year-old toddler falls high in the elevator of the shopping mall...... The court decided

Careless parents take their babies out

But he just lowered his head and played with his phone

As everyone knows

The risk of "hurting" escalators has quietly risen

The toddler unfortunately fell from the escalator

Who is responsible?

Recently, the Shanghai Jinshan District People's Court (hereinafter referred to as the Jinshan District People's Court) concluded a dispute over the right to life, the right to body, and the right to health. Who should bear the responsibility for the escalator's "injury"?

Case review

In April 2021, Ms. Chen took her three-year-old child Liang Liang (pseudonym) to S Mall for shopping, near the entrance of the escalator on the third floor, Ms. Chen stood about 2-3 meters away from Liang Liang and looked down at her mobile phone, Liang Liang came to the entrance of the escalator out of curiosity and touched the handrail with her hand and returned, Ms. Chen looked up and saw Liang Liang's above-mentioned actions, but after seeing Liang Liang return, she continued to stand in the same place and look at her mobile phone.

Subsequently, Liang Liang came to the escalator mouth again and grabbed the handrail from the outside of the handrail, and his body was immediately lifted by the ascending handrail and fell to the first floor at the three stairwells after passing through the gap between the handrail and the surrounding railing, and Liang Liang fell unconscious on the spot.

The judicial appraisal center was entrusted to evaluate Liangliang's disability level and the degree of dependence on follow-up treatment and nursing, and the appraisal opinion was that Liangliang suffered severe head injury due to a high fall, and now left quadriplegia (muscle strength below grade 3), fecal dysfunction, etc., and was assessed as a first-class disability. After the disability assessment, complete nursing dependence is still required, follow-up defecation and urination care and supplies (such as disposable diapers), long-term systemic antiepileptic drug therapy, measures and supplies to prevent limb contractures, as well as respiratory management, infection prevention, and regular reexamination.

Liang Liang and his mother, Ms. Chen, argued that S Mall failed to fulfill its safety obligations because it failed to install sufficient guardrails at the escalators on the third floor, so they sued the court to demand that S Mall bear the liability for compensation.

S Mall argued that the accident occurred due to Liang Liang's dangerous behavior of deliberately climbing on the handrail and Liang Liang's mother, Ms. Chen, who failed to fulfill her guardianship duties. The escalator itself does not have any quality problems and potential safety hazards, and the mall has also made sufficient safety reminders in the escalator and adjacent areas, and has also fulfilled the obligation of timely rescue after the accident, and the mall has fulfilled its safety guarantee obligations within a reasonable limit, so it should not be liable for compensation.

The focus of the dispute: the mall has an endless security obligation and the proportion of liability

After the trial, the court held that as a for-profit public place integrating shopping, catering and entertainment, S Mall had a duty to ensure the safety of consumers in the place, and should ensure that the special equipment and protective measures such as escalators in the business place met national safety standards. In the case of the most serious incidents that result in casualties, more prudent prevention and management responsibilities should be exercised to ensure that facilities on the business premises meet or exceed the minimum safety standards set by existing regulations.

After on-site investigation, the escalator involved in the case was located on the third floor of the shopping mall, and there was a metal railing erected between the escalator and the wall, and the stairwell from the third floor to the first floor was about 7cm away from the railing, and there was a risk of people falling. In view of the dangerous area, S Mall did not set up a fixed blocking device in accordance with the provisions of the "Safety Code for the Manufacturing and Installation of Escalators and Moving Walks" to effectively isolate the stairwells with falling hazards, so its safety protection requirements did not meet the national mandatory standards, and there was a causal relationship with Liangliang's serious fall injury, and it should be determined that S Mall failed to fulfill its safety guarantee obligations and should be liable for compensation for the damage suffered by Liangliang.

In addition, parents, as guardians of minor children, should earnestly perform their guardianship duties, promptly discover and stop their children's dangerous behaviors, and if the children are injured due to the guardian's ineffective care, the guardians shall be responsible for the occurrence of harmful consequences. At the time of the incident, Liang Liang was only a 3-year-old child, and Ms. Chen, as Liang Liang's mother, brought a person with no capacity for civil conduct to a relatively crowded and complex place, so she should have been more cautious and meticulous in protecting the child's life.

The operation of the escalator itself is dangerous, and Ms. Chen brought Liangliang to the vicinity of the escalator, and Liangliang should be carefully cared for and disciplined to prevent Liangliang from approaching the escalator equipment and other hazards. However, at the time of the incident, Ms. Chen did not pay attention to Liangliang's hand and touched the handrail and continued to look down at her mobile phone, failing to fulfill her duty of prudent care, and was at fault for the occurrence of the damages, and the liability of S Mall for compensation should be reduced.

For ordinary consumers who lack knowledge of the relevant industry, although it is foreseeable that the escalator is dangerous, it is difficult to predict the danger of falling and the serious consequences that may be brought about by the guardrail facilities at the escalator involved in the case, and S Mall, as the manager of a large business place, has the knowledge and management ability of relevant industry management, and should reasonably foresee that the guardrail facilities at the entrance and exit of the escalator do not meet the national mandatory standards and there is a risk of people falling. Therefore, the degree of fault of S Mall is heavier than the fault of Liangliang's mother, Ms. Chen, for her poor supervision.

To sum up, the court determined that S Mall should bear 70% of the liability for Liangliang's damage based on the degree of fault of both parties and the causal force of the tortious act on the consequences of the damage. Therefore, the defendant S shopping mall was ordered to compensate the plaintiff Liang Liang more than 1.54 million yuan.

After the case was appealed, the original judgment was upheld in the second instance.

What the judge said

Young children are active and curious, and tend to pay special attention to strange and novel things. However, they are young and lack the necessary judgment skills to fully understand and effectively prevent risks. Therefore, guardians should earnestly perform their guardianship duties, strengthen daily safety education for young children, and improve their awareness of safety risks and self-protection. If you take young children to play in shopping malls, playgrounds and other public places, you should fulfill your duty of prudent care, pay close attention to the child's dynamics, detect and effectively stop the child's dangerous behavior in time, and do not just be a "low-headed person", so that you will regret it when a disaster occurs. At the same time, managers of public places such as shopping malls and playgrounds should raise awareness of public services, eliminate potential safety hazards, earnestly fulfill safety and security obligations, and avoid unnecessary damage. If the damage occurs due to the failure to fulfill the safety guarantee obligation, the company shall be liable for compensation.

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.

Article 1173:Where the infringed party is at fault for the occurrence or expansion of the same harm, the infringer's liability may be reduced.

Article 1179:Where personal injury is caused by infringement of others, compensation shall be made for reasonable expenses incurred for treatment and rehabilitation, such as medical expenses, nursing expenses, transportation expenses, nutrition expenses, and hospital meal allowances, as well as the loss of income due to lost work. where disability is caused, compensation shall also be made for the cost of assistive devices and disability compensation; If death is caused, funeral expenses and death compensation shall also be compensated.

Article 1183:Where the personal rights and interests of natural persons are violated and serious mental harm is caused, the infringed party has the right to request compensation for mental damages.

Article 1198: Where the operators or managers of hotels, shopping malls, banks, stations, airports, stadiums, entertainment venues, or other business venues or public places, or the organizers of mass events, fail to fulfill their obligations to ensure safety and cause harm to others, they shall bear tort liability.

Transferred from: Jinshan Court

Source: Ping An Jinshan