Original title: Skiing "open" beware of these legal issues.
Jiang Fan. The new year's ski season is coming as scheduled, and the "snow content" of the circle of friends is multiplying**. However, skiing is highly professional and technical, and there are certain dangers, and there are many accidents and disputes caused by it every year. So, as a skier, how can you improve your safety awareness?What legal issues should "rookies" pay attention to during skiing?
Reminder 1: Skiing also obeys the "traffic rules".
Typical cases. Xiao Yuan collided with Xiao Yang, who was sliding from top to bottom, while skiing sideways on the intermediate slope of the ski resort, and both were injured. At the time of the incident, Xiao Yuan and Xiao Yang were both minors. Xiao Yuan claimed that Xiao Yang found that he was gliding in front of him and did not avoid it safely in time, resulting in being hit and injured, and he should bear tort liability. Xiao Yuan sued the court, demanding that Xiao Yang compensate more than 50,000 yuan for medical expenses and nursing expenses.
After the trial, the court held that Xiao Yuan slid horizontally from right to left at a relatively fast speed, and Xiao Yang slid from top to bottom, and according to the amplitude and speed of Xiao Yuan's lateral gliding, Xiao Yang was basically unable to predict and avoid, and Xiao Yuan should bear full responsibility for the occurrence of damage. From the perspective of safety protection, Xiao Yuan did not wear other protective gear other than a helmet that day, and his guardian and himself did not fully fulfill their safety protection obligations, and should also bear the corresponding fault for the damage result. Based on the on-site surveillance video, there is no evidence to prove that Xiao Yang was intentional or grossly negligent in the occurrence of Xiao Yuan's damages, so Xiao Yang does not bear tort liability. In the end, the court rejected Xiao Yuan's claim.
What the judge said. There are also "traffic rules" on the slopes. Some skiers lack awareness of precautions, and choose intermediate and advanced slopes that do not match their abilities, or even do not wear ski protectors for the sake of excitement. Some skiers will also violate sports safety rules such as competing for slopes and blindly overtaking, which are important reasons for frequent skiing accidents.
Article 1176 of the Civil Code stipulates the principle of self-willingness, that is, if a person voluntarily participates in a cultural or sports activity with a certain risk, and suffers damage due to the actions of other participants, the victim shall not request the other participants to bear tort liability;However, this does not apply if other participants are intentionally or grossly negligent in causing the damage.
Skiing is a professional, skillful and dangerous activity, skiers should fully understand the rules of the sport, safety precautions, and fulfill reasonable duty of care, such as choosing appropriate ski routes, maintaining sufficient safety distances, and adopting appropriate skiing speeds and skiing methods. When starting, stopping, crossing, or turning in the slope, priority is given to those who are sliding down from the top down, and skiers in front of them are not allowed to stop on the slope without reason or cross the slope at will.
In addition, parents should fully perform their guardianship duties and do a good job of education and guidance. Minors have relatively weak cognitive and judgment skills, so they are more likely to have accidents when participating in dangerous activities. When leading minors to participate in skiing, parents need to raise safety awareness, urge their children to wear a full set of protective gear, always pay attention to their sports paths and physical conditions, and do not let their children out of the scope of supervision to prevent accidents.
Reminder 2: Novices should pay high attention to their own safety.
Typical cases. Yu purchased a 2-hour individual snowboard teaching coach service at the ski resort. According to the surveillance video submitted by the ski resort, during the coach's teaching, Yu fell and continued to study. After the lesson, he went skiing on his own, falling down several times in the middle. Later, Yu went to the hospital for treatment. Yu believes that the coach did not follow the escort throughout the whole process when he knew that he skated the snowboard for the first time, causing him to lose control of the speed of the snowboard after going downhill, and there was no coach or corresponding facilities to help him slow down, and finally flew out of the ramp at full speed and fell to the ground, causing ten rib fractures. Yu sued the ski resort to the court, demanding compensation for medical expenses and lost work expenses totaling more than 80,000 yuan.
After hearing the case, the court held that skiing, as a highly dangerous sport, should have a higher duty of care than ordinary sports for both skiers and operators. In this case, Yu X bought a ticket to enter the ski resort and hired a full-time coach to assist him in skiing, and he fell down during the coach's guidance, and the ski resort failed to protect X's personal safety, and should bear certain responsibility. Yu continued to ski on his own without seeking medical attention in time after falling, and then fell down many times, and there is no evidence that Yu's injuries were all caused by falling under the guidance of the coach for the first time. As an adult, Yu should know the danger of skiing, should have a certain foreknowledge of the possible damage caused by skiing, and should also bear some responsibility for the physical injury caused by his failure to fulfill his duty of care. According to the degree of fault of both parties, the court determined that the ski resort should bear 10% of the liability, and ordered the ski resort to pay more than 1,400 yuan for medical expenses and lost work expenses.
What the judge said. In skiing, many beginners hire an instructor to teach. Ski instructors should hold professional qualification certificates, fulfill the duty of care in the teaching process, and provide full guidance and training to students, including reminding students to wear protective equipment correctly, how to avoid accidents in skiing, etc., to prevent students from ignoring safety rules and causing dangers. At the same time, the author suggests that ski resorts should fully fulfill their safety and security obligations, and ski resort operators or managers should obtain permits to operate high-risk sports and implement relevant ski resort management regulations and ski sports safety regulations.
In addition, many novice skiers do not have the basic skiing skills to step on the snowboard and rush down, without braking, turning, or avoiding, this kind of descent is very fast, and it is easy to hit the front and cause serious accidents. There are also some novice skiers who are tired of skiing and stop directly in the middle of the slope to rest, the slope is like a highway, and stopping in the middle is like stopping in the middle of the highway, which is very dangerous. Therefore, skiers should take a high degree of care to their own safety, prevent sports risks, reasonably assess their own abilities, and choose suitable ski equipment and slopes. Once injured, you should call rescuers in time and go to the hospital for treatment, fix the injury, and reasonably protect your own rights and interests.
Reminder 3: Choose a slope and do what you can.
Typical cases. Ms. Li was injured by Hu on the intermediate slope of the ski resort, and went to the hospital after a simple ** through the ski resort rescue room, and was diagnosed with a lumbar vertebra fracture. Ms. Li sued Hu and the ski resort to the court, demanding compensation for damages. During the trial, Ms. Li said that she adjusted the speed of the ski brake and was knocked to the ground by Hu, who slid down from behind. Hu argued that Ms. Li was parked on the slope at the time, and her injury was caused by her own fall, and Hu had already slid outward when she rushed over, and it should have been just a snowboard that hit Ms. Li, and the force was not great.
The court held that both Ms. Li and Mr. Hu were at fault and should bear certain responsibility. Skiers should choose courses that are suitable for their technical ability, especially beginners, and should not blindly go to intermediate courses. The rider in front has priority, and the skier behind should choose the route that does not pose a danger to the former. As a beginner skier, Hu should not ski on intermediate slopes, and he did not choose a relatively safe route, and he failed to stop or avoid Ms. Li in time, resulting in a collision. As a skiing enthusiast, Ms. Li should have known the danger of staying in the middle of the slope and had a high duty of care for her own safety. The ski resort has posted safety tips, instructions for skiers, and a code of conduct for skiers at the entrance and in conspicuous places everywhere, fulfilled its obligation to provide safety reminders, and provided emergency rescue after Ms. Li was injured, and should not be liable for compensation. In the end, according to the degree of fault, the court determined that Hu should bear 70% of the responsibility, and ruled that he should compensate Ms. Li for lost work expenses, nursing expenses, nutrition expenses, etc., totaling more than 30,000 yuan.
What the judge said. According to Article 1165 of the Civil Code, if the actor infringes on the civil rights and interests of others due to fault and causes damages, he shall bear tort liability. Article 1173 stipulates that if the infringed party is at fault for the occurrence or expansion of the same damage, the liability of the infringer may be reduced.
It's the ski season, and the number of visitors to each resort is surging, and collisions with others are not uncommon. As a general rule, skiers in front have priority to use the slopes, and the rear skiers should keep enough distance from other skiers when skiing. The author hereby reminds skiers to have a full understanding of the risks of skiing and their own technical level, carefully choose the difficulty of the slopes, and do what they can, and beginner skiers should try to avoid skiing on intermediate or advanced slopes. At the same time, it is necessary to always pay attention to the movement of the venue, pay attention to avoid collisions in time, and give early warning and avoid others. In the event of an accident, in addition to active treatment, evidence should also be retained, such as on-site ** or **, as well as ski resort tickets, medical bills, diagnosis certificates, etc., for the later protection of rights.
Reminder 4: Skiers can purchase the necessary accident insurance.
Typical cases. Mr. Bai applied for a ski season card at the ski resort. Once, he was injured while skiing off the slope, and was subsequently sent to the hospital for treatment and diagnosed with a cervical spinal cord injury, during which a total of 200,000 yuan was spent on medical expenses. The ski resort has long-term personal accident insurance for specific places in insurance company A, and the insurance amount per person is 400,000 yuan. Mr. Hou Bai applied to the insurance company for compensation. Since he could not reach an agreement on the amount of the claim, Mr. Bai sued the insurance company to the court, demanding that he pay 400,000 yuan in accidental disability insurance. During the trial, the insurance company argued that Article 8 of the corresponding insurance clause clearly stipulates that the insurance benefits shall be paid in accordance with "the insurer shall pay the disability insurance benefits according to the amount of the insured's accidental injury insurance and the corresponding payment ratio of the disability contained in this insurance contract", and claimed that the disability insurance benefits should be paid in this way. After investigation, the appraisal center issued an opinion that Mr. Bai's disability level was level 7, and the payment ratio was 40%.
After the trial, the court held that the clause in the insurance contract involved in the case on disability insurance liability stipulated in the proportional payment could be determined to be a clause exempting the insurer from liability, and the content of the clause was not prompted in bold type. The insurance policy can only show that "the insurer has fulfilled its obligation to explain the terms and conditions of the insurance, especially the contents of the terms in bold type", and does not indicate that the insurer has prompted and explained the content of the terms and conditions of "proportional payment of disability insurance liability", and does not meet the standard of clear explanation. The purpose of the obligation to explain the insurance products involved in the case is to enable the policyholder to understand the concept, content, and legal consequences of the terms related to its rights and obligations, and the standard is that the policyholder actually understands or understands it. Whether the policyholder actually understands it is a subjective state of mind and is difficult to measure. Formally, as long as the insurer has a conspicuous sign on the exemption clause in the insurance policy, insurance policy or other insurance certificate, and the "policyholder's declaration" is attached, and the policyholder signs and confirms and at the same time indicates that the concept, content and legal consequences of the relevant clause are clear, the insurer can be deemed to have fulfilled the obligation to make a clear statement. In this case, the content of the disability insurance liability ratio payment clause was not indicated in bold type, and the court found that the insurance company did not fulfill its obligation to clearly explain the exemption clause of the insurance product in question to the ski resort, and finally ordered the insurance company to pay Mr. Bai an accidental disability insurance premium of RMB 400,000.
What the judge said. Pursuant to Article 17 of the Insurance Law, the insurer shall, at the time of conclusion of the contract, make a reminder sufficient to attract the attention of the insurer on the insurance policy, insurance policy or other insurance certificate for the clause exempting the insurer from liability, and make a clear explanation to the policyholder in written or oral form regarding the content of the clauseIf there is no reminder or clear explanation, the clause shall not be effective. Article 9 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Insurance Law of the People's Republic of China stipulates that clauses exempting or reducing the liability of the insurer, such as liability exemption clauses, deductibles, odds waivers, proportional compensation or payment, etc., in the standard contract text provided by the insurer, may be deemed to be "clauses exempting the insurer from liability" as provided in the second paragraph of Article 17 of the Insurance Law.
The insurance company shall bear the insurance liability in accordance with the provisions of the insurance contract, and shall not artificially expand the contractual obligations of the insured. For clauses involving the exemption of liability of insurance companies, the obligation to prompt and explain should be fulfilled, otherwise it will not be legally binding on the parties.
Due to the high risk factor of skiing, if the ski ticket does not include accident insurance, it is recommended that skiers purchase it separately. In addition, before signing the insurance contract, you should carefully read the insurance terms, and pay special attention to the standard clauses in the contract when signing the contract, especially those involving protection liabilities and exclusions, etc., read carefully and review carefully. After the accident, the skier should report the accident in a timely manner, and provide the proof or information related to the insured accident that can be provided according to their own conditions, such as on-site **, admission tickets, etc.
Judge reminds. Don't forget to do your safety homework before opening the board.
It's another year of ski season, and the majority of ski enthusiasts should do their safety homework while enjoying the fun of "opening the board".
Skiers, especially beginners, should improve their safety awareness, use regular ski equipment, wear protective equipment, be familiar with the basic skiing rules, learn emergency avoidance skills, and strictly abide by the rules of sports. Choose a qualified ski resort and purchase accident insurance. When skiing, you should obey the guidance of the staff, pay attention to safety warnings, choose the slopes and safe routes that match your technical ability, pay attention to avoid and keep a safe distance from others. At the same time, it is recommended that beginners hire a professional instructor to guide them and ski independently after fully mastering the basic skills. In addition, the occurrence of accidental injuries in skiing sports is instantaneous and multi-inducing, and if an accident occurs accidentally, in addition to active treatment, evidence such as on-site images, ski resort tickets, and diagnosis certificates should also be retained for later rights protection. (Author's Affiliation: Beijing Changping District People's Court).
*:Beijing**.