Drinking carries risks, and urging others to drink requires caution……
[2] Compiled from: Xiamen Intermediate Court, The Paper
[3] Drinking culture is a distinctive and indispensable part of Chinese culture. Many people are accustomed to discussing business at the dinner table and enjoy calling each other brothers over clinking glasses. Alcohol indeed brings people closer. However, in recent years, disputes and cases arising from drinking together leading to injuries or deaths have become increasingly common, reminding everyone that drinking should never be forced.
Case review
On September 6, 2018, due to the bullfighting and other activities held as part of the "kanhui" custom in Zhaiwa Village, Sanskeshu Town, the construction site was closed in the afternoon. Zhang also had relatives and friends visiting, so Zhang arranged for the workers to dine at his own restaurant, "Daoxiangyuan." There were two tables of diners: one table consisted of Zhang's relatives and friends, for whom Zhang provided alcohol; the other table consisted of his workers, for whom Zhang did not provide alcohol.
That day, Liao rode a motorcycle carrying Liao Mousheng to Zhang's home to join a meal at the workers' table. During the meal, some workers went to another table to pour drinks on their own. Because Liao and Liao Mousheng arrived a little later, Liao voluntarily participated in drinking. At about 12:40 PM, the meal ended. After Liao rode the motorcycle carrying Liao Mousheng back to the construction site, at around 1:20 PM, Liao rode the motorcycle away from the construction site by himself. At 15:15, on the road section at 0 km + 500 on Jinshan Avenue in Kaili City, the motorcycle overturned on its side after colliding with the edge of the road. Liao died after rescue efforts failed. The Traffic Police Brigade of the Kaili City Court issued a Road Traffic Accident Determination Letter, determining that Liao, after being intoxicated, drove a motor vehicle without driving safely in accordance with operating norms, which was the direct cause of the accident, and that Liao bore full responsibility for the accident.
[1] However, Liao's relatives believed that Liao Sheng and Zhang infringed upon Liao's right to bodily integrity, health, and life, and should bear tort liability to the plaintiff.
[1] Court Opinion
[2] The court of first instance held that:On September 6, 2018, Liao and other workers dined at Zhang's home, which constituted a regular work meal provided by Zhang. Due to the local custom of “kanhui”, Zhang provided alcohol to relatives and friends during the meal, which is also consistent with local ethnic customs and folk practices. During the meal, Zhang did not sit at the same table as Liao, did not drink himself, did not urge Liao to drink, and was unaware that Liao had arrived at the meal by motorcycle and would leave by motorcycle. At the same time, because the construction site was closed on the afternoon of the “kanhui” day, it was also reasonable for the workers to drink on their own. After Liao finished drinking, he was still able to drive a motorcycle and bring Liao Sheng safely back to the construction site. Liao returned safely from the dining location to the construction site, and the people who participated in drinking and Liao Sheng had fulfilled their duty of care for his safety. After Liao returned to the construction site, he drove the motorcycle away from the construction site by himself. This was his own personal act, and others had no duty or responsibility to watch over his safety.
Moreover, the distance from the construction site where Liao departed to the location where the motorcycle overturned could be covered in just over 10 minutes at a normal safe speed. However, between Liao’s departure time of 13:20 and the time of the accident at 15:15, there is approximately a two-hour period during which Liao’s whereabouts cannot be ascertained, and the plaintiff is unable to prove otherwise. The Traffic Police Brigade of the Kaili City Court issued a Road Traffic Accident Determination Letter, determining that Liao drove a motor vehicle after being intoxicated and failed to drive safely in accordance with operating norms, which was the direct cause of the accident, and that Liao bears full responsibility for the accident.
[5] In summary, the deceased Liao, as a person with full civil capacity, had the ability to understand, judge, and control his own physical condition and alcohol tolerance. He also had the necessary self-control to refrain from driving a motor vehicle after drinking. His failure to exercise self-control regarding his own safety obligations, leading to his death from drunk driving, should result in him bearing full responsibility.
[6] The court of second instance held that:Generally, the law should not interfere with normal social interactions. Providing an appropriate amount of alcohol to fellow diners at a shared meal is a social courtesy, which itself does not create legal obligations. According to the principle of self-responsibility, drinkers should be aware of their own alcohol tolerance and whether it is suitable for them to drink, as they are better able to control risks and bear a duty of reasonable care for their own safety. Imposing excessively high risk prevention obligations on others would improperly restrict normal social activities. The duties of co-drinkers to remind, dissuade, and exercise care arise from foreseeable dangerous situations caused by their prior conduct, such as knowingly encouraging someone who cannot hold their liquor or needs to drive to drink, or failing to stop others from improper drinking persuasion. In such cases, co-drinkers, especially the host, bear an affirmative duty arising from their prior conduct. Only when there is a causal relationship between the co-drinker's inaction and the resulting harm should tort liability be imposed.
In this case, the appellee Zhang, as a foreman, provided lunch as a normal work meal, and offering alcohol was consistent with local ethnic customs and folk traditions. He did not dine at the same table as Liao, did not drink himself, and did not urge others to drink. He was unaware of whether Liao drank, how he arrived, or how he left, and thus owed no legal duty of care or responsibility to Liao. Therefore, he is not liable for the damages resulting from Liao's death. The appellee Liao Sheng, knowing that Liao had been drinking, failed to fulfill the necessary duty to remind and dissuade him from driving, but his act of accompanying Liao safely back to the worksite can be considered as having exercised a certain degree of care. After Liao and Liao Sheng drove safely back to the worksite, Liao then drove out again and had a traffic accident. There was a considerable time interval between the drinking and the subsequent driving, and the drinking was not the proximate cause of the traffic accident. As a co-drinker, Liao Sheng could not have foreseen this danger, meaning there is no legal causal relationship between his conduct and Liao's death, and he should not bear liability.
[1] The author's perspective
From the opinions of the first-instance and second-instance courts, it can be concluded that co-drinkers are not necessarily liable for all post-drinking accidents; the key is whether the co-drinker has fulfilled their duty of reasonable care. The author summarizes that co-drinkers may need to bear liability in the following four situations:
1. Compulsive persuasion to drink: for example, using language such as “if you don’t drink, you’re not a true friend” to pressure someone into drinking, or continuing to urge someone to drink when they are already intoxicated, lacking clear consciousness, and unable to exercise self-control.
2. Knowing that the other party cannot drink alcohol, yet still urging them to drink: for example, knowing the other party’s physical condition and still persuading them to drink, thereby inducing illness, etc.
3. Failure to safely escort the intoxicated person: If the drinker has lost or is about to lose control over themselves, is unconscious and unable to manage their own behavior, and the drinking companions fail to send them to the hospital or safely escort them home.
4. Failing to dissuade someone from drunk driving, resulting in a car accident or other harm: In such situations, we must make every effort to dissuade the person to prevent conduct that could lead to criminal liability. Moreover, stopping drunk driving can also prevent harmful acts from occurring.
The author reminds here that during a shared drinking session, if someone drinks excessively or becomes intoxicated, the organizers and participants of the gathering have a duty of care to ensure the intoxicated person is protected from harm. If this duty of care is not fulfilled, the organizers and participants may be at fault. However, the standard of this duty of care should be limited to the ordinary attention of a general person, meaning it should be within the foreseeable scope of an average person. Although a thousand cups of wine are too few when drinking with a bosom friend, moderate drinking is better.
