If a package tour traveler slips and is injured in a hotel bathroom, does the travel agency have to pay compensation? And how should the scope and limits of its duty to ensure safety be defined?

[Case Review]

In September 2024, Ms. Zhu signed a Group Outbound Travel Contract with an international travel agency in Shanghai, under which the agency arranged a 13-day outbound package tour, and she paid travel expenses of RMB 25,300. One night during the trip, Ms. Zhu accidentally slipped and fell in the bathroom of the hotel where she was staying. On the day of the fall, the tour guide immediately took her to a nearby hospital. The doctor diagnosed her with rib fractures and advised her to rest and recuperate. Because Ms. Zhu was unable to continue the trip, the travel agency booked a return flight for her, arranged for someone to accompany her back to China, and paid for the return airfare and the private car fare from the hotel to the airport. After an assessment, Ms. Zhu¡¯s injury was determined to constitute a Grade 10 disability. She therefore filed a lawsuit in the People¡¯s Court, seeking compensation from the travel agency for disability and other losses totaling more than RMB 80,000. Ms. Zhu argued that the travel agency had failed to fulfill its contractual obligation to protect her lawful rights and interests, as well as its duty to ensure safety, and should therefore bear the corresponding liability for compensation. The international travel agency in Shanghai argued that the hotel it provided met personal safety requirements and that, before departure, it had already informed travelers that bathroom floors and bathtubs can be slippery when washing or showering, and that they should first place the anti-slip mat properly. As an adult, Ms. Zhu failed to exercise the degree of care reasonably expected of her. As the provider of travel services, the travel agency had already taken necessary and reasonable measures, such as giving safety reminders, assisting with medical treatment, and accompanying her back to China, and therefore should not bear liability for compensation.

[People¡¯s Court Judgment]

After hearing the case, the People¡¯s Court held that the travel contract between Ms. Zhu and the international travel agency in Shanghai was lawfully formed and valid. Under the relevant provisions of the Tourism Law of the People¡¯s Republic of China, as a tourism operator, a travel agency must provide travelers with safe and healthy travel services. However, that duty to ensure safety also has certain boundaries. Before departure, the travel agency had fully informed her of the potential safety risks involved in using the bathroom. As an adult with full capacity for civil conduct and life experience, Ms. Zhu while moving about in the privacy of her hotel room, should have borne the primary duty to exercise care for her own safety and should have anticipated and guarded against a slippery bathroom floor. After the accident occurred, staff from the travel agency accompanied her to seek medical treatment at the earliest opportunity, promptly booked a return flight for her, and arranged for someone to accompany her back to China. It may therefore be found that they took the necessary rescue and response measures and should not bear liability for compensation. Accordingly, the People¡¯s Court lawfully ruled to dismiss Ms. Zhu¡¯s claims for disability compensation and other damages. After the first-instance judgment was announced, neither party appealed, and the judgment has taken effect.

(All parties mentioned in this article are pseudonyms.)

[Judge¡¯s Notes]

I. Clarifying the scope and content of tourism operators¡¯ duty to ensure safety

The Tourism Law of the People¡¯s Republic of China provides that tourism operators shall ensure that the goods and services they provide meet the requirements for safeguarding personal and property safety. Articles 7 and 8 of the Provisions of the Supreme People¡¯s Court on Several Issues Concerning the Application of Law in the Trial of Tourism Dispute Cases provide that where tourism operators or tourism auxiliary service providers fail to fulfill their duty to ensure safety, or fail to inform or warn travelers about tour items that may endanger their personal or property safety, thereby causing personal injury or property loss to travelers, they shall bear corresponding liability.

According to the above laws and judicial interpretations, tourism operators owe travelers a duty to ensure personal safety during travel. However, the specific scope and reasonable limits of that duty still need to be further clarified and defined through judicial decisions in specific cases.

Generally speaking, the duty to ensure safety borne by tourism operators differs in substance from the duty to ensure safety imposed under the Civil Code of the People¡¯s Republic of China on operators and managers of business premises and public venues. It mainly includes the following three aspects: first, providing services that safeguard personal and property safety; second, fully explaining and warning travelers in advance about safety precautions; and third, taking necessary rescue and response measures after a safety incident occurs. In judicial practice, when determining whether a tourism operator has fulfilled its duty to ensure safety, courts generally examine the matter from the three foregoing aspects.

II. Clarifying the reasonable limits of tourism operators¡¯ duty to ensure safety

When determining whether a tourism operator has fulfilled its duty to ensure safety, the standard should also be limited by ¡°reasonable foreseeability¡± and ¡°adequate warnings.¡± It should not be expansively construed to encompass a tourist¡¯s general duty to exercise due care within a private space. Where a tourism operator has provided services that meet personal safety requirements and has fully performed its duty to explain and warn about basic safety precautions, the traveler, as an adult with full capacity for civil conduct and life experience, should bear the primary duty to exercise care for his or her own safety while engaging in activities in a private space. If an accident occurs due to the traveler¡¯s own reasons, and travel agency personnel afterward also take the necessary rescue and response measures, it should not be determined that the travel agency failed to fulfill its duty to ensure safety.

In this case, the People¡¯s Court strictly and impartially applied the law and ruled, in accordance with the law, that the tourism operator, having fulfilled its duty to ensure safety, did not bear liability for compensation. This helps guide travelers to firmly establish the awareness that ¡°the individual is the first person responsible for exercising care for his or her own safety.¡± At the same time, it also clarifies the content and standards of the duty to ensure safety, guides tourism operators to fully perform their obligations under travel contracts and their duty to ensure safety in accordance with the law, and promotes the sustained and healthy development of the culture and tourism industry.

[Commentary from a People¡¯s Representative]

As living standards continue to improve, package tours have become a mainstream consumer product, and disputes arising from travelers being accidentally injured during their trips also occur from time to time. After such incidents occur, travelers usually seek compensation on the ground that the tourism operator failed to fulfill its duty to ensure safety. There is an urgent need for judicial decisions to clarify and define issues such as the scope, content, and reasonable limits of tourism operators¡¯ duty to ensure safety, so as to align with the legislative purpose of the Tourism Law of the People¡¯s Republic of China, namely protecting the lawful rights and interests of both travelers and tourism operators and promoting the sustained and healthy development of the tourism industry.

This judgment makes clear that the duty to ensure safety borne by tourism operators should be limited by ¡°reasonable foreseeability¡± and ¡°adequate warnings¡±. It should not be expansively construed to encompass a tourist¡¯s general duty to exercise due care within a private space. Therefore, when participating in tourism activities, especially in private spaces such as hotel rooms, travelers should remember that they themselves are the primary party responsible for their own safety, should strengthen their awareness of risk prevention and self-protection, fully anticipate and properly manage risks, and avoid travel safety accidents.

[Relevant Legal Provisions]

Tourism Law of the People¡¯s Republic of China

Article 68 Where a contract is terminated during the course of a tour, the travel agency shall assist the traveler in returning to the place of departure or another reasonable place designated by the traveler. If the termination of the contract is caused by the travel agency or a performance assistant, the return-trip expenses shall be borne by the travel agency.

Article 80 A tourism operator shall, in an explicit manner and in advance, provide travelers with explanations or warnings regarding the following matters in tourism activities:

(1) the proper methods for using relevant facilities and equipment;

(2) necessary safety precautions and emergency response measures;

(3) business or service venues, facilities, and equipment that are not open to travelers;

(4) groups for whom participation in relevant activities is unsuitable;

(5) other circumstances that may endanger travelers¡¯ personal or property safety.

Article 81 After an emergency or a tourism safety accident occurs, the tourism operator shall immediately take the necessary rescue and response measures, fulfill its reporting obligations in accordance with the law, and make proper arrangements for the travelers.