On April 12, 2018, Gu Yuhua, the plaintiff and an outsider to the case, as Party A, and the defendant Tianma Express Shanghai Branch, as Party B, signed the Shanghai Tourism Contract numbered CU-XXXXXXX with the defendant.
On July 23, 2018, in Kenya, the plaintiff took an "open-top" van arranged by the defendant (accompanied by Liu Qing, the team leader of the defendant Tianma Express Shanghai Branch) to the parking lot of Naivasha Lake. After getting off the bus, the tour leader and other tourists went to the lake to take pictures. The plaintiff who followed behind stepped into a hole under the lawn with his left foot. On the same day, the defendant sent the plaintiff to Nairobi Hospital for treatment, where he was diagnosed with a tibial plateau fracture in his left leg. The plaintiff returned to Shanghai with his spouse after being injured.
1. The defendant Tianma Yuntong (Beijing) International Travel Service shall pay the plaintiff Liu Min's medical expenses, hospital meal subsidies, nutrition expenses, nursing expenses, disability compensation, mental injury solace, appraisal fees, transportation expenses, and attorney's fees totaling 49,618 within 10 days from the effective date of this judgment62 yuan [If the defendant Tianma Express (Beijing) International Travel Service *** Shanghai Branch has property, it can first bear the property managed by the branch, and if it is not enough, the defendant Tianma Express (Beijing) International Travel Service *** shall bear it.] ]；
2. Plaintiff Liu Min's remaining claims are rejected.
Court Analysis] The tour group was the "first group" organized by the defendant Tianma Yuntong Shanghai Branch, and from the analysis that the tour guide of the ground receiving agency stepped into the hollow near the place of the incident on the day of the incident as the plaintiff, the tour guide of the ground receiving agency and the tour guide of the ground receiving agency were not familiar with the ground conditions of the place where the incident occurred, and the tour leader of the Shanghai branch of Yuntong was not familiar with the ground conditions of the incident, and in addition to accompanying the tourists throughout the process, he should give a clear warning to the tourists about the matters that the services he provided might endanger the personal and property safety of the tourists. According to the self-admission of the team leader of the defendant Tianma Yuntong Shanghai Branch during the trial, he and other tourists went to the lake to take pictures, but he did not find a hole under the lawn that was visible to the naked eye, so he did not issue a warning to the tourists, did not fully perform his duties and obligations as a team leader, and there were certain flaws in the service and subjective faults. After that, the plaintiff stepped into the hollow, which was related to the antecedent behavior of the tour leader who led other tourists to the lake to take pictures without observing the conditions of the incident. The plaintiff's claim that the injury suffered by the defendant Tianma Express Shanghai Branch was consistent with the facts and was upheld by this court.
However, the plaintiff is an adult with full capacity for civil conduct, and stated at the trial that he could clearly see the contents contained in the "Declaration of Tourists Participating in the Tour and the Exemption Letter of Travel Agency" in very small fonts, which can prove that the plaintiff's eyesight is good, but the plaintiff did not find the hole under the lawn visible to the naked eye, and the plaintiff could have tried to avoid the occurrence of the damage incident through his own efforts on the date of the incident, and he should have fulfilled his duty of care but failed to do so, resulting in the consequences of injury caused by stepping into the hollow under the lawn, and subjectively there was obviously a certain degree of fault. They should bear the corresponding responsibility for the consequences of their own damages.
In summary, the result of this accident was caused by the above-mentioned causal forces of the plaintiff and the defendant. Taking into account the age of the plaintiff and many other factors in this case, this court decided that the defendant should bear 30% of the tort liability for the plaintiff's damages, and the plaintiff should bear 70% of the compensation liability.
Lawyer reminds] In this case, the plaintiff's self-recognition of seeing clearly the "contents contained in the "Declaration of Tourists Participating in the Tour and the Exemption Letter of the Travel Agency" in very small font can prove that the plaintiff has good eyesight, which is the only basis for the court to determine that the plaintiff bears 70% of the liability. However, the elderly in their 60s can read the disclaimer with very small fonts, which is a special situation for people and cannot be read clearly by ordinary people. Why is the plaintiff so stressed? It may be a counterintuitive reaction to the disclaimer (not having excellent eyesight is an immediate good old age).
However, if the law provides for personal injury to the other party, the exemption clause in the contract is invalid. Therefore, even if the plaintiff signed the above letter, the clause exempting the defendant contained in the said letter is invalid according to the above provisions. In addition, "tour operators shall take corresponding safety and security measures when organizing and receiving tourists such as the elderly, minors, and persons with disabilities." ”
Therefore, if there is no self-admission by the plaintiff emphasizing that he has excellent eyesight, the defendant cannot force the elderly to see the hollow under his feet, but should bear the obligation of reminder and safety protection, and then bear a larger proportion of the liability for compensation.