When minors are injured on campus...

This is a classic case where a minor is injured on campus and the school bears the responsibility. It is also one of the representative cases of Dehe Shanghai Minor Protection Business Committee. The case was represented by Lawyer Chen Ping and Lawyer Fang Weiwei from Dehe Hantong. With the efforts of the two lawyers, the school finally assumed 100% responsibility and provided due protection for the injured minors.

Background of the case

Character: Xiao Meng (pseudonym), 6 years old, likes to climb high and low

Kindergarten teacher: Nana (pseudonym)

Kindergarten: A kindergarten (compiled by public institution)

The case: Xiao Meng, a child in a kindergarten class, accidentally fell off a horizontal bar during an extracurricular activity, resulting in an injury to her left arm. After the incident, she asked for help from teacher Nana, who took her to the infirmary and informed her parents. However, Xiao Meng's injury did not ease and the pain continued after he went home. After her parents took her to the hospital, she was diagnosed with a fracture of the left proximal humerus. To this end, Xiao Meng's parents commissioned a lawyer, and accompanied by a lawyer for judicial appraisal. Regrettably, the result of the appraisal was level 10 disability.

Difficulty of the case

The kindergarten believes that they should not take full responsibility for Xiao Meng's injuries. They believe that Xiao Meng, as a student in a large class, chose to play on the horizontal bar and accidentally fell off. The teacher has fulfilled the duty of education and management, and the relevant responsibility should be distributed according to the proportion of fault of each party.

Key points in handling cases

The child in this case is 6 years old and legally belongs to a person without civil capacity. In the law should be applied is the presumption of fault liability, it is up to the kindergarten to prove that they are not at fault.

Civil Code: Article 1,199 Where a person without capacity for civil conduct suffers personal damage while studying or living in a kindergarten, school or other institution of education, the kindergarten, school or other institution of education shall be liable for tort; However, those who can prove that they have fulfilled their educational and administrative duties shall not be liable for tort.

The key to the fault of the kindergarten in this case is whether the teacher guides, protects and supervises the children when they play.

During the trial, the defense arranged two teachers as witnesses to prove that the kindergarten had exercised a reasonable duty of care and implemented adequate protection, guidance and restraint measures.

When the plaintiff's counsel questioned the witness, there were the following questions:

（1）Where were you and what were you doing at the time the plaintiff was playing?

（2）When the plaintiff was injured, were you present and witnessed the situation?

（3）Why is there no cushion under the horizontal bar?

（4）Does the school provide relevant training for supervising children's behavior?

By raising these questions, Lawyers Chen and Fang aim to prove that:

（1）The teachers of the school were negligent in this case and failed to fully perform their education and management duties.

（2）The school does not provide enough education and training for teachers, which leads to the occurrence of such injury accidents.

（3）The MATS of the large class are taken and placed by the students themselves, while the MATS of the small class are placed by the teachers. This indirectly indicates that the school does not adequately supervise students in large classes, and the lack of cushioning from MATS leads to student injuries.

The judgment

Due to the professional defense of Lawyer Chen Ping and Lawyer Fang Weiwei, the court made the following ruling:

For a child without capacity for civil conduct, the institution shall bear the corresponding liability when he or she suffers personal damage in a kindergarten or other educational institution, unless it can be proved that the duty of education and management has been fulfilled. This means that when educational institutions assume responsibility for children without civil capacity, they apply the principle of presumption of fault and need to prove that they are not at fault.

In this case, the plaintiff is only 6 years old, belongs to the person without civil capacity, and attends the defendant's kindergarten. In an outdoor activity, the plaintiff accidentally fell off the horizontal bar and fractured his left arm. Because horizontal bar movement has certain risks, kindergartens should restrict, guide and protect the use of horizontal bar by children, and provide necessary protective measures. However, the defendant failed to provide personnel protection and protective measures when the plaintiff used the horizontal bar only on the grounds that the height of the horizontal bar was lower than the plaintiff's height and there was grass under the horizontal bar. This means that the defendant failed in his duty to educate, administer, and protect, and therefore should be liable for the full civil damages incurred by the plaintiff.

Enlightenment of the case

1、For the school, it is necessary to strengthen the training of school teachers, and keep the data of the training process, such as meeting minutes and photos, and pay attention to the process data.

2、to entrust professional lawyers, professional things to professional lawyers to do.

Time of law popularization

一、Age division and liability method of minors:

• Persons without capacity for civil conduct (< 8 years old) :

Article 20 of the Civil Code: A minor under the age of 8 shall be a person without capacity for civil conduct, and his legal representative shall carry out civil juristic acts. (Note: dissatisfaction is not legally included in this number)

• Persons with limited capacity for civil conduct (aged ≥8) :

Article 19 of the Civil Code: A minor over the age of eight is a person with limited capacity for civil conduct, and a civil juristic act shall be carried out by his legal agent or with the consent and ratification of his legal agent; However, it may independently carry out civil juristic acts for pure benefit or civil juristic acts appropriate to its age or intelligence.

• Person with full capacity for civil conduct:

Articles 17 and 18 of the Civil Code:

A MINOR AT or above the age of 16 who relies primarily on his own Labour income shall be deemed to have full capacity for civil conduct.

A natural person over the age of 18 is an adult, and an adult is a person with full capacity for civil conduct and may independently perform civil juristic acts.

(Note: The division in civil law is different from that in criminal law, so pay attention to the distinction. The age of criminal responsibility shall refer to Article 17 of the Criminal Law.

Xiao Dai said:

When a lawyer asks about age, make a quick mental judgment about the type of liability.

二、Three divisions of tort liability:

• Liability without fault:

Article 1166 of the Civil Code: If an actor causes damage to the civil rights and interests of others, no matter whether the actor is at fault or not, he shall bear tort liability according to the provisions of the law.

• Liability for presumption of fault:

If the actor is presumed to be at fault according to the provisions of the law, and he cannot prove that he did not miss, he shall bear tort liability.

• Liability for fault:
  

Where an actor infringes upon the civil rights and interests of another person due to his fault and causes damage, he shall bear tort liability.

Xiao Dai said:

No-fault liability does not look at whether the actor is at fault, must bear the responsibility; Presumption of fault reverses the burden of proof; Liability for fault shall be borne according to the degree of fault.

三、Interpretation of the law on minor injuries in school:

Article 119 Where a person without capacity for civil conduct is injured in a kindergarten, school or other institution of education, the school or other institution of education shall be liable for tort. Except those who can prove that they have fulfilled their duties of education and management.

Article 1200 Where a school or other institution of education fails to perform its duties of education or administration when a person with limited capacity for civil conduct is injured, the school or other institution of education shall be liable for tort.

Article 1,201 Where an educational institution torts against a third party and a person with no or limited capacity for civil conduct is injured, the third party shall be liable for tort; If a school or other institution of education fails to fulfill its administrative duties, it shall bear supplementary responsibilities. After supplementary liability, it may recover from a third party.

Introduction to Lawyers

Lawyer Chen Ping

Lawyer of Shanghai Dehe Hantong Law Firm

Estate administrator, bankruptcy administrator. The main practice area is dispute resolution (civil and commercial cases such as marriage and family affairs). He has provided legal services for many well-known enterprises, including Huazhu Hotel Management Co., LTD., Shanghai Jiao Tong University, BoCOM Financial Leasing Co., LTD., Ping An Property and Casualty Insurance Co., LTD., China Orient Asset Management Co., LTD., etc.

Email：pchen@dehehantong.com

Lawyer Weiwei Fang

Lawyer of Shanghai Dehe Hantong Law Firm

The practice fields are corporate commercial affairs, litigation arbitration, criminal defense, profound legal theory foundation, flexible way of thinking, rich litigation experience, good at mediation, reconciliation, negotiation, security, etc.

Email：wwfang@dehehantong.com

Lawyer Tingting

Lawyer of Shanghai Dehe Hantong Law Firm

Deputy director of Dehe Shanghai Minor Protection Business Committee, member of Commercial Dispute Resolution Business Committee, patent agent qualification, the main practice fields are corporate legal counsel, labor arbitration, criminal defense, intellectual property, etc.

Email：ttdai@dehehantong.com