Entertainment activities have hidden risks; willing to bear the risks voluntarily

[2] Compiled from: Shandong High Court
 
As winter arrives, snow begins to fall in many places, and many people build snowmen and have snowball fights. Amid the fun, there are also significant safety hazards. Recently, extreme sports venues have frequently made headlines, and in entertainment activities like trampoline jumping, many participants have been injured. So the question arises: when participating in recreational activities with certain risks, if harm occurs, should other participants be held responsible? Should the venue operator be held responsible?

 

 
Case 1: Fracture from Snowball Fight
On January 24, 2016, the plaintiff, an employee of a certain company, and five defendants including Wang engaged in a snowball fight. Afterwards, the plaintiff felt pain in his foot and was diagnosed by a hospital with fractures of the second, third, and fourth metatarsal bones of the right foot and a fracture of the first cuneiform bone of the right foot. The plaintiff claimed that his injuries were caused by the five defendants dragging and piling on top of him, but all five defendants denied having piled on top of the plaintiff, and all stated that too much time had passed for them to recall the details of what had happened.
 
The court held that the plaintiff Wu bore the burden of proof for his claim of being piled on and dragged, but he only provided a unilateral statement without actual evidence. The five defendants also denied the plaintiff's statement, so there was no evidence to establish a causal link between the plaintiff's injury and the defendants' actions. Moreover, snowball fighting in China is a common, informal, spontaneous recreational activity, and ordinary adults generally understand its risks, indicating that participants can foresee its dangers. Additionally, there was no evidence that the five defendants engaged in malicious harmful conduct during the snowball fight. The resulting injury should be considered an accident rather than a tort, and cannot be attributed to any party or individual involved in the play. The consequences should be borne by the plaintiff himself. The court lawfully dismissed the plaintiff's claims.
 
 
Case 2: Trampoline Visitor Compensation Claim
On February 19, 2019, the plaintiff, Teng (16 years old), went to the defendant's amusement park to play. While participating in the trampoline activity, Teng injured a knee joint upon landing, without colliding with any other person during the incident, and was subsequently taken to the hospital by ambulance for treatment. According to an appraisal, Teng's injury met the criteria for a Grade 10 disability. Teng filed a claim against the amusement park for damages, seeking compensation for various losses totaling 118,145.69 yuan. The amusement park argued that Teng had signed a relevant risk acknowledgment and consent form presented by the amusement park, and that the amusement park had fulfilled its corresponding safety warning obligations.
 
The court held that the plaintiff was injured while playing on a trampoline at the amusement park, without being pushed, collided with, or subjected to any other external force by others, nor was the injury caused by any quality defect in the trampoline at issue or any other defect that could have led to the plaintiff’s injury. The plaintiff Teng’s injury should be attributed to the inherent risks of trampoline activities. However, as the operator, the amusement park knew that the plaintiff was a minor and was not accompanied by a guardian, yet still allowed the plaintiff to enter the park and made no special arrangements for minors, thus bearing some fault for the occurrence of the incident and should reasonably bear compensation liability to the plaintiff. At the time of the incident, the plaintiff Teng was already 16 years old and should have had a certain awareness of the risks of trampoline activities, so the liability could not be entirely attributed to the defendant amusement park. In accordance with the law, the defendant amusement park was ordered to bear 30% of the civil compensation liability for part of the claims, totaling 41,583.02 yuan, and the plaintiff’s other claims were dismissed.
 
 
Relevant legal provision: Civil Code
Article 1176If a person voluntarily participates in a cultural or sports activity with certain risks and suffers harm due to the acts of other participants, the victim may not request the other participants to bear tort liability; except where the other participants acted with intent or gross negligence regarding the occurrence of the harm.
The liability of the activity organizer shall be governed by the provisions of Articles 1198 to 1201 of this Code.
 
Article 1198 Operators or managers of business premises such as hotels, shopping malls, banks, railway stations, airports, sports venues, and entertainment venues, or organizers of mass activities, who fail to fulfill their safety and security obligations and cause harm to others, shall bear tort liability.
If harm is caused to another person by the act of a third party, the third party shall bear tort liability; if the business operator, manager, or organizer fails to fulfill the duty of security, they shall bear corresponding supplementary liability. After bearing supplementary liability, the business operator, manager, or organizer may seek recourse from the third party.
 
Article 1199If a person with no capacity for civil conduct suffers personal injury while studying or living in a kindergarten, school, or other educational institution, the kindergarten, school, or other educational institution shall bear tort liability; however, if it can prove that it has fulfilled its duties of education and management, it shall not bear tort liability.
 
Article 1200If a person with limited capacity for civil conduct suffers personal injury while studying or living at a school or other educational institution, and the school or other educational institution fails to fulfill its duties of education and management, it shall bear tort liability.
 
Article 1201Where a person with no or limited capacity for civil conduct suffers personal injury during the period of study or daily life at a kindergarten, school, or other educational institution caused by a third party outside the kindergarten, school, or other educational institution, the third party shall bear tort liability; if the kindergarten, school, or other educational institution fails to fulfill its management duties, it shall bear corresponding supplementary liability. After bearing supplementary liability, the kindergarten, school, or other educational institution may seek reimbursement from the third party.
 
 
[1] The author's perspective
Individuals are the primary persons responsible for their own life and health. When participating in recreational activities, they should fully understand the risks and the activity's safety assurance capabilities in advance, remain cautious throughout the activity, protect their personal safety, and avoid causing harm to others.

 
 

Guardians must fulfill their guardianship responsibilities and must not place their guardianship duties on the event organizers or others, so as to avoid unnecessary harmful consequences.
 
Operators and organizers of entertainment venues should provide adequate warnings about the risks associated with the activities and take effective measures to prevent harm from occurring. They must not remain passive simply because participants “voluntarily assume the risk.” They should clearly and specifically inform participants in writing of the inherent risks of the activity and the possible consequences of injury, and when necessary, require participants to sign relevant written documents. They may also purchase insurance in advance to minimize potential losses.