Compiled from: Legal Daily, Shandong High Court
 
Case review
Recently, a woman test-driving a NIO car in Shanghai suddenly veered onto the sidewalk and collided with a mother and child, resulting in one death and one injury. The driver involved has been taken into police custody, and the cause of the incident is still under further investigation.

 
 

A map shows that the intersection of Shanghai Hongqiao Road and Gongcheng Road, where the accident occurred, is only about a hundred meters away from the NIO Space at Grand Gateway 66. A NIO employee stated that a female customer was test-driving at the time, accompanied by a company staff member. It is suspected that due to the densely populated area, the woman panicked and mistakenly pressed the accelerator instead of the brake. The female customer had signed a test-drive agreement before the drive and had held her driver's license for over a year. The employee believed that the female customer would certainly bear responsibility, and if the company needed to provide compensation, it would actively cooperate with the relevant authorities. The employee did not disclose the model involved in the accident, stating that the car itself had no issues.
 
The tragedy is heartbreaking, but who bears responsibility for accidents during test drives is equally worth our attention. What is the legal validity of a test drive agreement? Can car dealers be exempted from liability by signing a test drive agreement?
 
 
《[1] The People's Republic of ChinaCivil Code
第四百九十六条
A standard-form clause is a clause that is prepared in advance by a party for repeated use and is not negotiated with the other party at the time of concluding the contract.
When a contract is concluded using standard-form clauses, the party providing the standard-form clauses shall determine the rights and obligations between the parties in accordance with the principle of fairness and shall take reasonable measures to draw the other party's attention to clauses that exempt or reduce the provider's liability or involve other significant interests of the other party, and shall explain such clauses upon the other party's request. If the party providing the standard-form clauses fails to fulfill the obligation to draw attention or provide explanation, causing the other party to fail to notice or understand clauses that significantly affect its interests, the other party may assert that such clauses are not part of the contract.
 
Article 1213
If a motor vehicle traffic accident causes damage and the motor vehicle is at fault, the insurer of the compulsory motor vehicle insurance shall first compensate within the limits of the compulsory insurance liability; any shortfall shall be compensated by the insurer of the commercial motor vehicle insurance in accordance with the insurance contract; if there is still a shortfall or no commercial motor vehicle insurance has been purchased, the tortfeasor shall compensate.
 
 
[1] Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Road Traffic Accident Damage Compensation Cases
Article 6 
If a traffic accident occurs during a motor vehicle test ride causing damage to the test rider, and the party requests compensation from the test ride provider, the people's court shall support it. If the test rider is at fault, the liability for compensation of the test ride provider shall be reduced.
 
 
[1] The author's perspective
As the vehicle owner and test drive service provider, and given that the test drive service is offered to unspecified customers with a relatively higher risk of traffic accidents, the car dealer bears management and duty of care obligations. Whether the accident is caused by improper driving by the dealer's staff or the customer, the dealer's civil liability cannot be evaded.
 
For test drivers, before the test drive, they should choose a reputable dealer with high management standards and thoroughly familiarize themselves with the vehicle. During the test drive, they should control their speed and avoid driving too fast. In the event of an accident, they should immediately call the police or consult professionals, and not blindly trust the dealer's statements.
 
For car dealers, it is necessary to purchase insurance for test drive vehicles, conduct thorough inspections, provide pre-test drive training for drivers, and also train and test accompanying employees in the store to better handle unexpected situations. These seemingly cumbersome tasks not only protect customer rights but also reduce their own risks.