Supplemental Reading

I.Ashtray Falling from Above

CCTV Law Today Program,January 10,2003

Anchorman: Zhang Shaogang

Guest: Dr.Liu Junhai,Remin University,School of Law

On May 10,2000 at midnight,Mr.Hao Yue was on his way home when he was seriously injured by an ashtray that fell right on his head.After 39 hours of intensive care,and 70 days of dead faint,with medical cost of a hundred fourteen thousand yuan,he was diagnosed as brained damaged of third degree,and lost the abilities to work or take care of himself due to traumatic epilepsy.

Mr.Hao was unable to determine from which window the ashtray came out,as there were 24 possible homes where the ashtray could have come out;neither was police able to determine anything as the ashtray had been examined by and passed around among numerous onlookers before they arrived at the scene.

Finding no specific suspect,Mr.Hao decided to sue the developer of buildings – Yu Development Co.of Chongqing,thinking that the developer had the obligation of supervision.However,the developer countered that the buildings were a unique type of commodity which did not include ashtray as permanent fixture.The ashtray as such must be a device arranged by a resident himself when using the commodity,and had nothing to do with the developer.The Court of Chongqing dismissed Mr.Hao’s case on December 7,2001.

In early 2002,Mr.Hao then sued the 24 families,for,as Mr.Hao explained,he had no other people to sue;if it were 99% unfair to them,it would be 100%unfair to him.So they must be sued.

The Court of Yuzhong District found that someone must have thrown the ashtray,and Mr.Hao was totally innocent,and his injury deserved to be compensated.After all,there could be only one window from a single family from which the ashtray came out.

The court found only two families could be exonerated because they had during two years never lived there,including the night of the event.So 22 other families were found to be possible suspects on the assumption of fault,i.e.,unless you can prove by evidence that you are not at fault,besides pointing out the actual tortfeasor,you must be liable.The 22 families would therefore be joint tortfeasors if they could not find the actual perpetrator.

In May 2002,the court determined that the 22 families were liable for the one hundred seventy thousand damages,8100 yuan per family.But this decision was taken by the residents to be injustice.So they appealed.The appeals court affirmed.After four months,however,no one paid anything to Mr.Hao.

Dr.Liu: There are two attitudes [approaches] in judicial practice.One is that when the victim sues in court without naming a defendant,the court would either refuse to take the case,or would take the case and then dismiss it;the other is the practice in the present case: the court would not only take the case,make an elaborate finding,and failing to find a particular defendant,presume the 20 resident families to be liable for the injury.Personally,I would agree with this practice because though it is not absolute fairness,it is a comparative fairness,for the victim,Mr.Hao Yue,would be sufficiently compensated.

Anchorman: You just mentioned the principle of “fairness.” Why the “fairness”?

Dr.Liu: What is meant by “fairness” is that none of the parties [of a lawsuit]is at fault of the injuries,the court,by exercising discretion,based on the specific situation of the case,could decide the share of civil liabilities.