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  • Who shall be responsible for the personal injury of employee’s family members who participate in the employer’s team building activities?

    Who shall be responsible for the personal injury of employee’s family members who participate in the employer’s team building activities?

    In order to increase employees’ sense of belonging and improve cohesion, Company A invited employees and their family members to take a tour of another city. One day, during the dinner, employee B’s husband and employee C’s father were passionate about toasting to each other, and B’s husband was a little bit drunk. After the dinner, B’s husband went swimming, and unfortunately, he drowned in the hotel’s swimming pool. B claimed that Company A, C’s father and the hotel were liable, because Company A organized the tour and should be responsible for the safety of its employees and their family members; if C’s father had not toasted to B’s husband, B’s husband might not be drunk, and might not be drowned; and the hotel allowed guests to go swimming after drinking, and failed to take proper first aid measures. The three parties refused to undertake the claimed liabilities.

    This case is complicated, because it involves 3 aspects, self-willing risks, security obligations, and a third party’s infringements. Regarding those aspects, the liabilities should be determined based on relevant legal basis and details of the fact.

    Article 1176 of the “Civil Code” stipulates: “In the event that a person is willing to participate in recreational and sports activities with certain risks, but is harmed due to the conduct of other participants, the victim shall not request other participants to bear tortious liability, unless other participants have committed intentional misconduct or gross negligence for the occurrence of the harm. The responsibility of the organizer of an activity shall be governed by Articles 1198 through 1201 hereof.”

    According to Article 1176, the victim shall bear the liabilities only when the following factors are all completed. Factor 1 is the victim voluntarily participates in the activity. Factor 2 is the victim has known about the potential risks of the recreational and sports activities. Factor 3 is that other participants have committed intentional misconduct or gross negligence for the occurrence of the harm. Factor 4 is the venue operators and organizers have fulfilled their corresponding security obligations. 

    In this case, B’s husband is an adult with full civil capacity, and has the duty of self-safety awareness, so he should bear partial of the liabilities for drinking alcohol and drown. Despite liabilities of B’s husband, the liabilities of C’s father shall be determined based on Factor3, the liabilities of Company A and the hotel shall be determined based on Factor4.  

    First, regarding liabilities related to infringements, according to Article 1165 of the “Civil Code”, if C’s father knew that B’s husband could not drink alcohol, or he forced (persuaded) B’s husband to drink too much, he might be deemed to be liable for a certain proportion.

    Second, regarding security obligations, Article 1198 of the “Civil Code” stipulates that “Business operators or managers of business premises such as hotels, …… etc. and public places or organizers of mass activities who fail to perform safety assurance obligations and cause damage to others shall bear tortious liability. In the event of damage caused to others due to the act of a third party, the third party shall bear tortious liability; business operators, managers or organizers who have failed to perform safety protection obligations shall bear the corresponding supplementary responsibilities. After bearing the supplementary liability, the business operators, managers or organizers may claim compensation from the third party.”

    Since Law could not list all security obligations for different circumstances, the “security obligations” shall be determined case by case. In relevant cases, judges would first determine the fact of damage, the cause of the damage, and the cause’s relevant behaviors, which include a voluntarily one or an omission, then finally, judges could determine whether such behaviors shall belong to the scope of the “security obligations”. At this time, the judge has to face the challenge on determining the reasonable scope of “security obligations”. 

    Generally, judges would determine the scope of “security obligations” from the perspective of whether the relevant operators and organizers could foresee the relevant risks rationally and reasonably. The main factors would be the requirements in the relevant legal regulations, industry standards, mutual agreements, etc. In the absence of the aforesaid main factors, judges would consider whether the relevant operators and organizers have reached the normal level of attention that similar operators and organizers should achieve. In addition, judges would also take the actual ability of the organizer and the constraints of the objective environment into consideration.

    In this case, if Company A has announced the activity’s time, intensity and cautions (e.g. drinking too much alcohol is forbidden); emphasized the discipline of the activity (e.g. the companion shall be in company with those participants who have drunk alcohol to a safe place, and participants who have drunk alcohol shall not be alone); and informed the participants about the risks and liabilities related to this activity, and etc., then normally, it shall be deemed as having done a rational knowledge and prevention of the risks of the activity. 

    [1] “Research on the Definition of the Reasonable Scope of the Safety Security Obligation of Mass Activity Organizers”, China Court ORG, Author: Bai Tao (Beijing Second Intermediate Court)