[5] Analysis of the First Wave Injury Case in China at Shenzhen Xiaomeisha Resort
I. Basic Case Facts
On the evening of August 22, 2000, Zhang, a staff member of the Shenzhen office of a city in Anhui Province, went swimming with friends at the beach of Xiaomeisha Resort in Shenzhen. After purchasing tickets and entering the sea, Zhang found the waves too strong and, as he was preparing to return to shore, was knocked down by a huge wave. He was taken to the hospital and diagnosed with a comminuted fracture of the left tibia and fibula. He was later transferred to Shenzhen Red Cross Hospital, where the diagnosis of a comminuted fracture of the left tibia and fibula was confirmed.
After 64 days of hospital treatment and a bone graft surgery, Mr. Zhang rested for an additional six months following his discharge before his leg injury was initially healed. He was assessed as having a Class 8 disability by the Red Cross Forensic Medical Office of the Shenzhen Court Disability Assessment Center. Due to the negligence of Xiaomeisha Resort, which knowingly sold tickets and operated despite strong winds and high waves that could endanger visitors' personal safety, and failed to fulfill its duty to inform and take preventive measures, Mr. Zhang's disability resulted. Mr. Zhang had made multiple attempts to negotiate with the center but to no avail. Consequently, he entrusted a lawyer from Guangdong Zhiming Law Firm to file a lawsuit against Xiaomeisha Resort, claiming compensation for medical expenses, nursing fees, lost wages, and living allowances for the disabled, totaling RMB 316,044.39.
I'm ready to help translate your Chinese legal content into professional English for the Shenzhen Zhiming Law Firm website. Please provide the Chinese text you'd like me to translate.II. Judgment
On November 15, 2001, the People's Court of Yantian District, Shenzhen, ruled in the first instance that:
1. The defendant has passed the annual inspection by the industrial and commercial administration department, and its qualification as a business entity is lawful.
2. Waves are a natural phenomenon, not a product of labor, and do not constitute commodities. The law does not stipulate that operators of beach swimming venues should bear no-fault civil liability. Therefore, the principle of fault liability should apply to the compensation for damages in this case.
3. On August 22, 2000, the typhoon center was 860 nautical miles from downtown Shenzhen, which did not meet the typhoon standard of within 800 nautical miles. Shenzhen did not experience typhoons, heavy rain, red tides, or other statutory conditions for closing swimming venues. The defendant's sale of tickets was not improper, and the defendant fulfilled its duty to inform through billboards, broadcasts, and other means.
4. The fact that the sea has waves is common knowledge that any person of normal intelligence should possess. The defendant had no duty to protect the plaintiff from dodging, and the duty to dodge rested with the plaintiff. Therefore, in this case, the plaintiff was at fault, and the defendant was not.
Accordingly, the plaintiff's claims are dismissed. Mr. Zhang, dissatisfied with the judgment, appealed to the Shenzhen Intermediate People's Court on November 29, 2001, which rendered a final judgment on April 29, 2002, upholding the original decision.
6. III. Case Analysis
This case is the first instance of a wave injury at a seaside swimming beach. During the two trials, courtroom debates were exceptionally intense. Regarding the focal point of the dispute, the plaintiff's representative argued:
(I) The defendant's qualification as a business entity is illegal, and its business operations involve unlawful fault.
According to Article 5 of the "Guangdong Province Regulations on the Safety Management of Coastal Swimming Beaches," operating a coastal swimming beach requires safety review and approval by the tourism administrative department at or above the county level, and a "Coastal Swimming Beach Safety Appraisal Certificate" must be obtained before registration with the industrial and commercial department. Article 12 further stipulates that coastal swimming beaches already in operation before the promulgation of these regulations must complete the safety approval procedures within three months after the regulations are published. In reality, although the defendant obtained industrial and commercial registration before the promulgation and implementation of the "Guangdong Province Regulations on the Safety Management of Coastal Swimming Beaches" in 1991, they have still not completed the safety approval procedures as of June 1998, when the above regulations were published and implemented, nor have they obtained the "Coastal Swimming Beach Safety Appraisal Certificate" or the relevant "Sea Area Use Certificate." This shows that the defendant's 1991 industrial and commercial registration was based on the regulations in effect at that time, while passing the 2000 annual industrial and commercial inspection was due to negligence on the part of the industrial and commercial department. However, the defendant's lack of statutory qualifications for business operation is certain! Without safety appraisal, the safety conditions for the defendant's operation have not been legally determined, and with safety conditions undetermined, the safety of tourists cannot be guaranteed. Operating without ensuring tourist safety violates the provisions of the "Law of the People's Republic of China on the Protection of Consumer Rights and Interests," making such operation clearly illegal.
(ii) The seawater and waves in the specific sea area managed and operated by the defendant should be considered commodities.
The original judgment held that "waves are a natural phenomenon beyond human control, and since waves are not labor products, they do not constitute commodities." From this, it was inferred that the defendant, in operating a seaside swimming beach, bore no legal fault for causing bodily harm to tourists and should not bear liability for fault. Anyone with basic common sense knows that the starting point and foundational premise of the original judgment's reasoning are erroneous. It reflects not only ignorance of economics but also a disregard for the law itself. It is well understood that in a modern market economy, seawater (waves), like land and air, is not originally a labor product and belongs to the realm of nature. However, once it is acquired through certain forms of labor by people and subjected to operational management, it naturally becomes a specific commodity. Among these, the operational and managerial actions of people, along with the management and usage costs expended, themselves demonstrate that the thing has been commodified. The labor invested in operational management and the consideration paid for its use are the very origins of its commodification. The original judgment not only severed the premise that waves are generated by seawater under the force of wind but also overlooked that the waves (seawater) in this case are waves produced by seawater under the defendant's operational management. Precisely for this reason, it is a commodified entity, and the defendant's operations should fully fall under the "Law of the People's Republic of China on the Protection of Consumer Rights and Interests." According to Articles 7 and 11 of that law, the defendant should, as a matter of course, bear liability for fault in this case.
(iii) The defendant should have been prohibited from swimming in the severe weather caused by the typhoon.
Article 8 of the "Safety Management Regulations for Coastal Swimming Beaches in Guangdong Province" stipulates: "In cases where swimming is not suitable due to typhoons, rainstorms, red tides, or other severe weather conditions, or because the seawater is polluted, the coastal swimming beach must cease ticket sales, prohibit swimming in the beach area, and deploy security personnel to patrol and stop tourists from entering the water." This regulation is an enumerative provision. Accordingly, the situations in which swimming is unsuitable and ticket sales must be prohibited are: (1) typhoons; (2) rainstorms; (3) red tides; (4) other severe weather conditions; (5) seawater pollution; (6) other situations unsuitable for swimming.
Now, the question is whether the circumstances of this case fall under the statutory category of "other severe weather" as specified in item (4) above. This is clearly evident from the following facts: on the day of the incident, the center of the typhoon was 860 nautical miles from Shenzhen. Although it did not fall within the statutory definition of a typhoon zone of 800 nautical miles, it was at the periphery of the typhoon, and due to the severe impact of the typhoon, the specific sea area of Xiaomeisha Beach Resort experienced waves of 5–5.5 meters and wind forces of 6–7 levels. The "severe weather" caused by this typhoon is undeniable, as evidenced by a specialized meteorological report issued by the Shenzhen Meteorological Observatory. Moreover, as a matter of common sense, although science defines areas within 800 nautical miles as typhoon zones, the area at 860 nautical miles beyond that boundary can certainly also cause harm. Just as boiling water at 100 degrees Celsius can scald, water at 99 degrees Celsius, though not yet boiling, can also scald—there is no essential difference in their function or effect, only a difference in the scientific standard of classification. However, the court rigidly emphasized that there was no occurrence of a typhoon, rainstorm, or red tide per se, while ignoring the statutory provision that emphasizes "under the influence of severe weather such as typhoons, rainstorms, or red tides," any conditions unsuitable for swimming should result in a swimming ban. The court's erroneous judgment is clearly a consequence of judicial distortion of legislative intent.
(iv) The defendant failed to fulfill its obligations.
According to Article 18 of the Consumer Rights Protection Law of the People's Republic of China: "Business operators shall provide truthful explanations and clear warnings to consumers regarding goods and services that may endanger personal safety or property." Therefore, the defendant is legally obligated to truthfully inform, warn, and protect consumers. Although the defendant posted visitor notices in the passageway and made formal announcements via broadcast, according to the aforementioned Guangdong Province Safety Regulations for Coastal Swimming Beaches, under severe weather conditions, security guards should patrol and prohibit swimmers from entering the water, rather than merely relying on perfunctory broadcast reminders. Particularly in the specific sea area of Xiaomeisha (the bay area), the sea breeze and waves are far stronger than in other regions. As a professional operator, the defendant should have been even more responsible for effectively preventing incidents of waves causing injury. However, under severe weather conditions, the defendant took no additional protective measures for visitor safety beyond those on normal days. This demonstrates that the level of duty performed by the defendant falls far short of the statutory requirements, and the defendant fundamentally failed to fulfill its obligations, and cannot evade liability for the fault of failing to perform its protective duties.
Everyone knows that when there are waves at sea, one must dodge them; it is human instinct and a duty that does not require the court to invoke the law to mobilize people's conscious initiative. The court overemphasized that the plaintiff should, based on the ever-changing waves, have an obligation to understand the characteristics of the waves and proactively avoid being injured by them. In reality, the party obligated to prevent injuries caused by waves should be the professional operators who profit from this activity. For an inland tourist who knows little about the sea, there is no necessity to understand it, let alone a duty to pay attention. Moreover, the plaintiff had already instinctively tried their best to dodge, yet the court arbitrarily assumed that the plaintiff failed to fulfill their possible obligations, one-sidedly stressing the consumer's conscious initiative while completely ignoring the operator's proactive role. The court also forcibly transformed the operator's statutory duty to protect consumer safety into a specific obligation that can only arise from mutual agreement; otherwise, the operator bears no responsibility for consumer safety. This is not only a clear bias in favor of the defendant but also a deliberate distortion of national law, openly contravening the Consumer Protection Law. Such an unreasonable and unjust determination by the court seriously undermines the "principle of fairness" stipulated in Article 4 of the General Principles of Civil Law of our country. Even when liability is difficult to determine, the assessment of liability for damages should, at the very least, reflect the "principle of fairness"!
In summary, it is not difficult to see that the damages in this case resulted from the defendant's illegal operations and breach of statutory duties. The defendant should, based on the facts and the law, bear liability for damages. However, both courts, employing numerous subjective analyses and disregarding the provisions of the law, used extensive emotional language to describe the objective facts of the case, and, from a perspective of exonerating the defendant, rendered a highly erroneous judgment. This erroneous judgment not only shields the defendant and harms the plaintiff's lawful rights and interests, but more seriously, it violates the principle of judicial fairness advocated by Chinese law. Such a judgment is indeed deeply disappointing and unjust.
(Commentary by Attorney Zhiming)
Zhiming Office
September 9, 2002
