Perspective | Determination of the Duty of Safety Assurance in Commercial Venues and Allocation of Liability

The original theoretical basis for the duty of safety assurance can be traced back to the “risk-control theory,” which holds that whoever has greater control over potential risks in business activities should bear the obligation to prevent and manage those risks. Specifically in the context of commercial premises, operators—as the beneficiaries of economic gains—are logically obligated to invest resources to avert or mitigate any potential hazards. Moreover, the principle of “alignment between benefits and risks” further underscores that operators or managers who reap economic benefits should also assume corresponding risk-management responsibilities.

In early judicial practice, the duty of safety assurance was often regarded as an ancillary obligation within contractual legal relationships—that is, after a consumer or service contract is established, operators, in addition to fulfilling their primary obligations, must also ensure the safety of the premises and prevent consumers from being exposed to hazardous environments. However, as theory and practice have continued to evolve, it has gradually become recognized that the duty of safety assurance is not merely an ancillary contractual obligation but also a statutory duty. According to Article 1198 of the current Civil Code of the People's Republic of China, operators, managers of business premises and public places—including hotels, shopping malls, banks, stations, airports, sports venues, and entertainment facilities—as well as organizers of mass events, shall bear tort liability if they fail to fulfill their duty of safety assurance and thereby cause harm to others. If harm is caused to others due to the actions of a third party, the third party shall bear tort liability; however, if the operator, manager, or organizer fails to fulfill their duty of safety assurance, they shall bear corresponding liability. Supplementary liability After the operator, manager, or organizer has assumed supplementary liability, they may seek reimbursement from a third party. Thus, when an operator opens its premises to the public, it assumes a duty of reasonable safety保障 toward all persons entering the premises. If it fails to fulfill this duty of safety保障, it shall bear tort liability.

Article 1198 of the Civil Code of the People's Republic of China clearly defines three categories of statutory entities: 1. Operators: These refer to legal persons or individuals who hold both the right to generate revenue and assume risk responsibilities for the operation of a premises, such as operators of hotels, shopping malls, banks, and the like. 2. Managers: These are entities or individuals who, although not directly operating the premises, bear management and maintenance responsibilities for the premises—for example, property management companies or contractors entrusted with managing premises on behalf of others. 3. Organizers of mass events: This category primarily covers large-scale events of a collective, public-interest, or commercial nature, such as concerts, sports competitions, and trade shows. Organizers also have an obligation to provide necessary safeguards for the safety of event participants and personnel present at the venue. Therefore, when determining which entities bear the obligation to provide security safeguards, we must strictly adhere to the original intent of the legislation and, taking into account factors such as the openness of the premises, its operational nature, external revenue generation, and management methods, decide whether the provisions on security safeguards apply to the relevant obligors. If the criteria are not met, the case should be handled according to general principles of tort liability, and the scope of application must not be expanded indiscriminately.

The core of the duty of safety assurance lies in preventing and avoiding foreseeable safety risks while providing consumers or event participants with a reasonably safe environment. To determine whether the obligor has breached the duty of safety assurance, the analysis typically focuses on the following aspects:

1. The obligor’s capacity to recognize, assess, and obtain information about the danger;

2. Typical types of hazardous events or risks that may commonly occur in similar venues, activities, and facilities.

1. Whether the obligor has taken security precautions commensurate with the risk;

2. Whether the measures taken meet the level of care required by laws, regulations, industry standards, and other relevant requirements;

3. Whether necessary safety instructions or warning signs have been set up;

4. Has the corresponding safety management system been implemented?

1. Whether the safety performance of the site, facilities, and equipment itself complies with national or industry regulations;

2. Are there any obvious safety hazards or defects? Has the obligated party promptly identified, repaired, or notified others of these issues?

3. Is the design, layout, and maintenance of the premises or facilities reasonable? Are there any factors that could increase risks?

1. The obligor’s professional competence, qualifications, and financial strength;

2. The obligor’s organizational, operational, and managerial status and influence in the activity;

3. The consumer or participant’s reasonable reliance on the obligor’s safety measures or capabilities.

1. Whether there is a legal causal link between the obligor’s failure to act or improper conduct and the resulting harm;

2. The extent to which the victim’s own fault or improper conduct contributed to the occurrence of the damage;

3. Taking into account comprehensively the laws and regulations, industry practices, and the responsibilities of all parties involved, determine the proportion of liability.

Taking into account the factors mentioned above, when determining whether the operator or manager of a commercial establishment has violated the duty of safety assurance, it is essential to give comprehensive consideration to objective facts, reasonable standards, and the principle of fairness.

The obligation to ensure safety should not be infinitely expanded. The obligations of managers of commercial premises are typically predicated on “reasonable foreseeability,” meaning they are responsible for taking preventive measures against risks that “could reasonably be anticipated under normal circumstances” within the premises. In contrast, liability may be reduced or even exempted in cases of force majeure or unforeseeable circumstances.

In practice, the duty of safety assurance is typically governed by the principle of “fault-based liability,” requiring evidence to prove that the operator was at fault. However, since operators usually hold key evidence such as surveillance videos and security records, in terms of allocating the burden of proof, judges tend—out of concern for protecting the rights and interests of victims—to apply this principle with a degree of flexibility. Presumption of Fault Principle — That is, as long as the victim initially proves that there were defects in the premises’ safety or that there was managerial negligence, the operator must provide evidence to refute the claim that it had fulfilled its reasonable duty of care.

The determination of fault is often inextricably linked to causation. If an operator fails to fulfill its obligations—such as equipment maintenance, warning notices, or emergency first aid—and there is evidence indicating that compliance with these obligations could have prevented the accident or mitigated the damage, it can be presumed that a legal causal relationship exists between the operator’s failure and the ultimate harm suffered. However, if the victim himself or herself bears significant negligence or has engaged in unlawful conduct—for example, deliberately climbing over security barriers, being struck by objects falling from heights, or violating the rules of the premises—this may lead to a reduction or even exoneration of the operator’s liability.

When a third party commits an infringement in a commercial establishment, if it is determined that the third party is directly responsible, the operator typically bears supplementary liability or corresponding secondary liability.

When a third party is unable to provide compensation or its specific identity cannot be determined, the victim may seek supplementary liability from the operator. This mode of liability allocation ensures that the victim receives timely and effective compensation; however, the operator retains the right to seek reimbursement from the third party, thereby preventing the operator from assuming liability beyond a reasonable scope.

Joint and several liability will be recognized only when the operator and a third party have colluded or when the operator has knowingly allowed the third party to commit an infringement—both constituting serious negligence. In such cases, if the operator’s failure to exercise proper management or its joint tortious conduct with the third party has led to harm, the operator and the third party will jointly bear compensation liability to the victim.

The allocation of liability ratios is, in essence, a comprehensive outcome that takes into account three primary factors: the degree of fault of the operator, the victim’s own negligence, and the actions of third parties.

1. Equipment maintenance and site safety conditions: If on-site facilities are obviously outdated and management is lacking, or if safety barriers or warning signs have not been installed, this can be considered a clear instance of negligence.

2. Security Measures and Daily Patrols: If the operator fails to deploy a reasonable number of security personnel, or fails to conduct patrols or surveillance as required, resulting in an inability to respond promptly to emergencies, the proportion of fault will accordingly increase.

3. Safety Education and Warnings: If an operator fails to clearly inform consumers or participants about potential risks in prominent locations on tickets, admission passes, or within the venue, or fails to provide reasonable guidance, they may also bear a greater proportion of responsibility.

1. One’s own conduct: If the victim knowingly disregards prohibitions or warning signs at the premises and deliberately trespasses, climbs over barriers, or engages in unauthorized activities, the operator’s share of liability will be proportionally reduced.

2. Risk-awareness capability: For adults, it is generally assumed that they possess basic life experience and self-preservation awareness; however, for minors or other vulnerable groups, operators have a heightened duty of protection, and the victim’s own negligence is often mitigated to a reasonable extent.

When a third party directly infringes upon the victim, the operator’s duty of safety protection assumes a more secondary or supplementary role. However, if the operator has long-term tolerated the presence of a third party engaging in illegal or high-risk activities within its premises, or has failed to fulfill its obligations to promptly intervene and report such activities, then its proportion of liability will significantly increase.

In some cases, victims, emphasizing the losses they have suffered, often argue that operators should bear compensation liability under any circumstances. For example, even after the operator has fulfilled its duty to provide safety warnings, the victim still fails to take them seriously and sustains injuries due to their own negligence; or, for instance, the victim enters a non-public area on their own initiative and suffers harm as a result, yet continues to seek compensation from the operator. In response, courts tend to emphasize in their judgments that "operators have a duty of safety assurance within a reasonable scope," and make a comprehensive assessment by taking into account the victim’s conduct as well.

For example, in case No. (2024) Yu16 Min Zhong 3588, the court held that the hotel involved, as a business establishment open to the public, has a duty of safety assurance toward persons entering the hotel. However, this duty of safety assurance must be exercised within reasonable limits. The hotel had already taken appropriate measures to fulfill its safety assurance obligations by placing non-slip slippers, non-slip floor mats, and relevant warning signs in the shower area. The existing evidence shows that the victim slipped and fell on his own in the hotel’s bathroom. As a person with full civil capacity, the victim himself had a duty of care to prevent falls—especially in a confined and special environment such as a bathroom, where he should have paid particular attention to his own safety. Yet, the victim failed to exercise due care to avoid slipping and did not actively take any anti-slip measures, thus causing his own fall. Therefore, the victim bears corresponding responsibility for the accident. Consequently, the court determined that the hotel had fulfilled its duty of safety assurance and was not liable, thereby avoiding an overbroad interpretation of the scope of the hotel’s safety assurance obligations.

The duty of safety assurance is a type of “non-action” tort, and it requires clearly defining the substantive connection between the operator and the resulting harm. To illustrate with an example: Suppose an escalator in a supermarket experiences an electrical leakage, and a customer is injured as a result. If the investigation reveals that the supermarket failed to carry out timely maintenance and lacked effective safety warning signs, it can be presumed that there exists a causal link of tort between the supermarket’s management and the ultimate harm suffered by the customer.

For example, in case No. Qiong 01 Min Zhong 695 (2020), the court held that the drainage outlet that caused the victim’s injury was an ancillary facility of the premises used by a certain tea shop and thus fell within the area under the control and management of the tea shop. Since the victim suffered the accidental injury within the business premises managed by the tea shop, whether the tea shop bears liability depended on whether it had fulfilled its statutory duty to ensure safety. The drainage pit that injured the victim was located in the corridor of the building where the tea shop was situated—a relatively open area. The tea shop had not taken any measures to enclose the location of the drainage outlet, allowing pedestrians to freely pass through this area. Moreover, the tea shop had placed only two movable wooden boards over the drainage outlet; when these boards were moved, the drainage outlet was exposed, directly leading to the victim’s personal injury. As an ancillary facility of the premises used by the tea shop, the tea shop had both the obligation to eliminate this safety hazard and the obligation to inform pedestrians of the potential danger. It should have taken appropriate safety measures, such as installing a more secure cover over the drainage outlet to eliminate the hazard or setting up warning signs to advise pedestrians to detour or proceed with caution. However, at the time of the incident, the tea shop had failed to implement these measures. Therefore, the tea shop’s negligence in ensuring safe passage and its failure to fulfill its duty to prevent harm directly contributed to—or exacerbated—the likelihood that the victim would fall into the drainage outlet and sustain injuries. Consequently, the tea shop ultimately bore the responsibility for compensation.

1. Regular identification of safety hazards: Establish daily inspection and periodic maintenance systems to ensure that all types of facilities are in good condition.

2. Enhance warning and alert measures: Install various types of warning signs in prominent locations, paying particular attention to areas with potential high risks and places prone to slipping or falling.

3. Establish an emergency response mechanism: Promptly equip necessary first-aid devices, such as AEDs, and provide staff with training in first-aid knowledge.

4. Strengthen security measures: Based on the size of the venue and pedestrian traffic, appropriately allocate security personnel and implement technical security measures (such as cameras and emergency alarm systems).

5. Establish regulations within a reasonable scope: Clearly specify safety precautions and procedures for handling violations in the operating rules, and ensure thorough explanation and notification to consumers.

1. Collect evidence: Immediately after the incident, preserve evidence such as on-site photos and video surveillance footage, or hand them over to the public security authorities for evidence collection.

2. As much as possible, require operators to provide documentation such as safety management systems and facility maintenance records to demonstrate whether the operators have fulfilled their corresponding obligations.

3. Clearly define the boundaries of your own behavior: When engaging in activities in public or commercial venues, you should abide by the on-site safety regulations and warnings, avoid unnecessary high-risk actions, and—above all—stay clear of dangerous walls.