Resident Injured by a Falling Tree in Typhoon Day   Court: Property Management Company Bear Tort Liability for Failing to Prove Fulfillment of Management and Maintenance Obligations

Typhoons occur frequently in midsummer, bringing many safety risks to people. A resident walking in the community was suddenly toppled by a falling tree and got "Grade-10 disability". Who should be liable for the losses of the injured? What matters should the residential property management companies pay attention to in extreme weather?

[Case Review]

When Typhoon Lekima made landfall on the coast of Zhejiang Province, Shanghai was affected by the peripheral circulation of the typhoon, which brought heavy wind and rain. At the noon of the landfall day, an old man, surnamed Shen in his 70s, was pinned to the ground by a suddenly falling tree when walking to the community fitness area. He was then sent to the hospital by ambulance after nearby residents called emergency hotline 120, and finally diagnosed with right proximal femoral comminuted fracture, a "Grade 10" disability which required 300 days' treatment and rest, 300 days' nursing and 180 days' nutrition. Afterwards, Shen sued to the court, requesting the property management company to compensate for his losses.

The property management company believed that the tree was toppled by typhoon, a force majeure, and it had fulfilled its duty of reminding as the residents had been reminded of possible damage before the typhoon came. Therefore, the plaintiff was at fault and the property management company should not bear any liability for compensation.

[Case Study]

After the trial, the Shanghai Yangpu Court held that the property management company, as a residential landscaping manager, shall bear the tort liability if it cannot prove its innocence. 

Photos of the scene showed that the root of the fallen tree was not deep and there were no other down trees in the community, so it can be presumed that the top-heavy tree fell down due to itself and the weather. The property management company had the obligation to take care of the tree and should strengthen inspection and protection under special weather conditions. However, it simply posted a warning of reducing going out and didn't reinforce the fence to protect the tree. Therefore, the property management company was at fault.

Besides, the bad weather on that day didn't affect the outdoor activities of residents. Shen got injured by the fallen tree when walking normally in the community, so he was not at fault. The property management company's plea for force majeure exemption and Shen's own fault wasn't admitted.

To sum up, the property management company was ordered to compensate for Shen's medical expenses, nutrition fees and disability compensation totaling more than 180,000 yuan.
In order to better meet people's habitability needs, residential communities are often equipped with green belts and fitness areas. As a coastal city, Shanghai is prone to typhoons in summer. In this case, how to determine the liability of the property management company as the landscaping manager is a focus in the trial.

In judicial practice, the principle of presumption of fault is applied to the determination of tort liability for personal injuries caused by falling trees in the community. As long as the owner or manager of a tree cannot prove that he/she is not at fault, he/she is presumed to be at fault and shall bear the corresponding liability for compensation. In this case, the property management company failed to prove that it has fulfilled its management and maintenance obligations. It should be presumed that it's at fault for negligence in the due care as a good manager. Given that the special weather and the fault of the property management company jointly led to the injurious consequences, the property management company shall bear the tort liability according to law.

In typhoon-prone seasons, property management companies should check and prevent potential safety hazards caused by extreme weathers to avoid damage. To be specific, they can: (i) strengthen routine maintenance and inspection, register the buildings, greening and other facilities and equipment timely and eliminate the hidden dangers once found; (ii) take emergency preventive measures to reinforce the protection for trees and buildings, etc. in the community once the extreme weathers (e.g. typhoons, rainstorms) and natural disasters are forecast, so as to minimize the damage; (iii) enhance the awareness of evidence retention, made records during routine maintenance and inspections, and retain relevant evidence to prove that they have fulfilled their management and maintenance obligations, so as to relieve or release their liability when necessary.

Property management is crucial to people's livelihood. Only with legal property management and accurate emergency response can the safety of residents be guaranteed.

[Relevant Laws]

I. Tort Law of the People's Republic of China

Article 6 One who is at fault for infringement upon a civil right or interest of another person shall be subject to the tort liability.

One who is at fault as construed according to legal provisions and cannot prove otherwise shall be subject to the tort liability.

Article 16 Where a tort causes any personal injury to another person, the tortfeasor shall compensate the victim for the reasonable costs and expenses for treatment and rehabilitation, such as medical treatment expenses, nursing fees and travel expenses, as well as the lost wages. If the victim suffers any disability, the tortfeasor shall also pay the costs of disability assistance equipment for the living of the victim and the disability indemnity. If it causes the death of the victim, the tortfeasor shall also pay the funeral service fees and the death compensation.

Article 22 Where any harm caused by a tort to a personal right or interest of another person inflicts a serious mental distress on the victim of the tort, the victim of the tort may require compensation for the infliction of mental distress.

Article 90 Where any harm is caused to another person by a broken tree, the owner or manager of the tree shall assume the tort liability if it cannot prove that he is not at fault.

II. Several Provisions of the Supreme People's Court on the Retroactivity in the Application of the Civil Code of the People's Republic of China

Article 1 Cases of civil disputes arising from the legal facts occurring after the Civil Code comes into force shall be governed by the Civil Code.

Cases of civil disputes arising from the legal facts occurring before the Civil Code comes into force shall be governed by the laws and judicial interpretations in force at that time, except as otherwise provided for by any law or judicial interpretation.

Cases of civil disputes arising from the legal facts occurring before the Civil Code comes into force and lasting until after the Civil Code comes into force shall be governed by the Civil Code, except as otherwise provided for by any law or judicial interpretation.

III. Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China

Article 90 A party concerned shall furnish evidence to prove the facts on which its own claims are based or on which its refutation of the opposite party's claims is based, unless otherwise prescribed by law.

Where a party concerned fails to furnish any evidence to prove the claimed facts or where the evidence so furnished is insufficient to prove the claimed facts prior to the pronunciation of a judgment, the party having the burden of proof shall be liable for unfavorable consequences.

(Authors: Zhou Yu, Yuan Zhen Yi, Yan Danchi, Shanghai Yangpu Court)