º¬Ðß²ÝÉçÇø

This article examines the definition and scope of the duty of care through a case study, offering practical guidance for property management companies as operators, organisers and managers of public venues on implementing effective safeguards to mitigate the risk of liability for negligence.

Case study

Li lives in a luxury Shanghai housing complex where residents enjoy free access to the development¡¯s gym and other facilities. The estate is run by the property manager, company J, with cleaning services contracted out to company Z.

When Li visited the gym in March 2016, a cleaner from company Z had switched on three treadmills to wipe their belts while in motion. Li, absorbed with his mobile phone, mistook an active treadmill for a stationary one, stepped on, and was thrown off, suffering injuries.

Li subsequently filed a lawsuit against both companies, J and Z, claiming more than RMB200,000 (USD29,000) in joint compensation for medical bills, lost income, travel expenses, nursing care, nutrition costs, emotional harm and solicitor¡¯s fees.

The case rests on two allegations: the absence of warning signs near the active treadmills; and negligence by both firms ¨C company J for breaching its duty of care as manager, and company Z for permitting its cleaner to operate the machines during cleaning.

In its defence, company J argued that the available evidence did not fully capture how the accident occurred or establish the precise cause of Li¡¯s fall. It further submitted that Li had been looking down at his mobile phone and had failed to exercise reasonable care, making his own negligence the primary and direct cause of the incident. Even if his injuries were caused by the treadmill being switched on, company J contended, primary liability should fall on company Z.

Company Z disputed the claim, arguing that the exact cause of Li¡¯s injuries had not been proven, with no direct connection established between the running treadmill and the accident. It further contended that Li should have heard the machine¡¯s operation and therefore bore primary fault. On this basis, company Z rejected principal liability.

Judicial view

The court held that every citizen is entitled to the right to life and health under the law, and that any party whose wrongful conduct infringes another¡¯s civil rights and interests must bear tort liability. In this case, company Z¡¯s cleaner had acted negligently by switching on three treadmills for cleaning without posting any warning signs; company J was at fault for failing to properly supervise the cleaning staff; and Li, a legally competent adult, had also contributed to the accident by walking through the gym while looking at the phone instead of paying attention to the surroundings and the equipment.

In conclusion, the court found that the accident resulted from the combined fault of Li, company J and company Z, with liability to be apportioned accordingly. It determined that company J should bear 24% of the damages, company Z 36%, and Li 40%.

Author¡¯s note

This case represents a classic tort dispute arising from an alleged failure to fulfil the duty of care. Fault was attributed to all three parties, and the court apportioned liability accordingly. However, neither the former Tort Liability Law nor the current Civil Code provides a clear definition or delineates the precise scope of this duty. Drawing on the above-mentioned case, the author explores the boundaries of responsibility for public venue operators.

Definition. The duty of care is designed to safeguard individuals from harm to their person or property. It is primarily a positive obligation, requiring the duty bearer to take active steps to prevent such harm from occurring.

Scope. A duty of care is typically considered satisfied where adequate precautions have been taken to protect others from injury. Such ¡°adequate precautions¡± must not be stretched too far, as an overbroad interpretation would invite unnecessary disputes and legal friction.

In the case, both companies J and Z should have anticipated residents using the gym equipment. Cleaning staff who activate treadmills must put up warning notices or barriers, just as supermarkets cordon off freshly mopped floors.

Assessment standards. Assessing whether the duty of care has been discharged requires a multi-factor approach. Courts typically consider statutory obligations, the conduct expected of a reasonable person, and the standard precautions ordinarily taken by managers in comparable settings. This assessment can be broken down into four key elements.

(1) Statutory standards. Where laws or regulations expressly prescribe safety requirements, such as the Fire Prevention Law¡¯s provisions on fire safety duties for public institutions, these must be strictly observed.

(2) Special standards. Case law consistently imposes a stricter duty of care where vulnerable individuals ¨C particularly minors and others lacking full legal capacity ¨C are concerned. Where premises contain hazards that hold a particular allure for children, such as high-level areas or dangerous rides, operators and managers must adopt the highest safety standards. This includes eliminating risks entirely or cordoning them off to prevent access by minors.

(3) The reasonable operator standard. This test asks whether the duty-bearer has met the level of care ordinarily expected of similar enterprises in comparable circumstances ¨C the attention that any rational, prudent and conscientious operator would exercise.

(4) The general standard. Those managing public spaces owe a duty to inform, warn and assist all persons entering their premises. This obligation is particularly stringent where hazards are concealed and not immediately obvious to visitors.

In summary, the scope of the duty of care should be defined by what risks are reasonably foreseeable in the course of ordinary activities. Those responsible must take necessary precautions to prevent or avoid predictable accidents.

Expanding liability beyond this boundary would not only place an undue burden on duty-bearers, but also implicitly reduce the responsibility of individuals to exercise care for their own safety, undermining fairness and justice in society.

Robbie Sun is a senior partner at Ronly & Tenwen Partners