Legal representative: Du Mou2 (father of Du Mou 1), born in * * *, Han nationality, unemployed, living in Hehe, Tianjin.
Legal representative: Song Mou (mother of Du Mou 1), born on, Han nationality, unemployed, living in Dongli District, Tianjin.
Authorized Agent: Hou, lawyer of Tianjin Baoyan Law Firm.
Authorized Agent: wangtong, lawyer of Tianjin Baoyan Law Firm.
Appellant (defendant in the original trial) Du Mou was born on * * * in * *, Han nationality, unemployed, and lives in Hehe, Tianjin.
Appellant (defendant in the original trial) Song, born on, Han nationality, unemployed, lives in Dongli District, Tianjin.
Appellee (plaintiff in the original trial): Liang Mou 1, male, born on, Hui nationality, student of No.45 Middle School in Tianjin, living in Hehe, Tianjin.
Legal Agent: Liang Mou2 (the father of Liang Mou 1), born on, Hui nationality, a worker of Tianjin Branch of China No.1 Heavy Machinery Group Co., Ltd., living in Hehe, Tianjin.
Legal Agent: Han Mou (father of Liang Mou 1), born on, Hui nationality, employee of Tianjin Branch of China No.1 Heavy Machinery Group Company, living in Hehe, Tianjin.
Defendant in the original trial: No.45 Middle School in Tianjin, with his domicile at No.He * * Guangning Road in Tianjin.
Legal Representative: Zheng Ruoxing, president of this school.
Authorized Agent: Cao Yucheng, director of the Moral Education Department of this middle school.
Authorized Agent: Gao Chunbao, employee of the Moral Education Department of this middle school.
Trial process
Appellants Du Mou 1, Du Mou 2, and Song Mou refused to accept No.0 1 02 of the Hedong District People's Court of Tianjin (20 16) because of a dispute over the right to health with appellee Liang Mou1and defendant No.45 Middle School of Tianjin (hereinafter referred to as "No.45 Middle School"). On1October 265438+2065438+2 1 day, our hospital formed a collegial panel according to law and heard the case in public. The legal representatives of Appellants Du Mou 1, Appellants Du Mou 2 and Song Mou and their entrusted agents Hou and wangtong, the legal representatives of Appellees Liang Mou 1 Liang Mou 2 and Han Mou, and the entrusted agent Gao Chunbao of Defendant No.45 in the original trial attended the proceedings. The case has now been closed.
The appellant claimed that
Appellants Du Mou 1, Du Mou 2, Song Mou's appeal request: the first item of the original judgment was revoked, and all the appellee's claims against the appellant were rejected or sent back for retrial. First, the appeal fee of second instance shall be borne by the appellee. Reason for appeal: The court of first instance ordered the appellant to make compensation according to the appraisal opinion, which has no factual basis. After consulting the professional structure and identifying the attending physician many times, the appellant said that the appellee did not constitute disability. The appellant refused to accept the appraisal conclusion and asked to find another appraisal unit. The original judgment violated the appellant's legitimate rights and interests.
The appellee argued that
The appellee Liang 1 argued that he disagreed with the appellant's appeal request, agreed with the judgment of the first instance, and agreed with the appraisal opinion of the appraisal institution of the first instance.
The defendant in the first instance argued that
The defendant in the original trial argued that he agreed to the court's decision according to law.
The initial trial told me
Liang 1 sued to the court of first instance: 1, and ordered the four defendants to jointly compensate the plaintiff for medical expenses of 692 1.5 yuan, nursing expenses of 7083.5 yuan, transportation expenses of 562.65438 yuan +0 yuan, hospital food subsidies of 65438 yuan +0400 yuan, nutrition expenses of 2500 yuan and tuition fees of 36040 yuan. 2. The four defendants were ordered to jointly compensate the plaintiff for disability compensation of 68,202 yuan, mental damages of 5,000 yuan and appraisal fee of 1009.4 yuan; The legal costs shall be borne by the four defendants.
The court of first instance found out
The court of first instance found that both the plaintiff and the defendant Du Mou 1 were 45 middle school students of the defendant. 20 15 12 14 After school in the afternoon, the plaintiff came out of the teaching building and walked to the school gate. The defendant Du Mou 1 ran over and patted the plaintiff on the back of the head with his hand. Later, the plaintiff fell and was injured while chasing the defendant Du Mou 1. Later, classmates Du and Du Tianyu who were traveling with the plaintiff sent the plaintiff home. The plaintiff went to Tianjin Hospital and Tianjin Children's Hospital on the same day, and the total medical expenses were 1374.68 yuan. The plaintiff was hospitalized in Tianjin Hospital on 20 15, 12 and 15, and was diagnosed as a fracture of the upper humerus (right side). 20 15 12.29, the plaintiff was discharged from the hospital and was diagnosed as a fracture of the proximal right humerus. The plaintiff was hospitalized 14 days, and the medical expenses during hospitalization were 8954.39 yuan. Since then, the plaintiff has been treated in the outpatient department of Tianjin Hospital on 20 16, 65438 10 on 8 October and 4 February respectively, with a total medical expenses of 542.43 yuan. On 20 15, 12, 15, the plaintiff's legal representative Liang Mou2 reported to the police that the plaintiff was injured. After receiving the report, Zhongshan Gate Police Station of Hedong Branch of Tianjin Public Security Bureau inquired about the plaintiff Liang Mou 2, the defendant Du Mou 1, Du Mou and Du Tianyu respectively. When the defendant Du Mou 1 asked him at the police station, he said, "At about 20 15 12 14 in the afternoon 17: 35, after school, I walked out of teaching and didn't go far. I saw Liang 1, Du Tianyu and Du walking ahead. I patted Liang 1 on the back of the head with my hand and walked past them. After a few steps, I heard the sound of running behind me. I didn't look back. I thought it should be Liang's 1 chasing up. I lifted my legs and ran to the school gate, but I didn't see Liang's 1 catch up. Afterwards, I went home. On 20 15, 12, 18, the defendant Du Mou2 paid the plaintiff RMB 4,000, for which the plaintiff's mother Han issued a receipt for the defendant Du Mou2, which read: "The hospitalization deposit paid by Du Mou 1 father was received to maintain the normal medical expenses of the child. RMB four thousand Yuan only ". 20 15 12.30 Tianjin hospital issued a diagnosis certificate for the plaintiff, suggesting that the plaintiff take a vacation for six weeks. During the trial of this case, according to the plaintiff's application, the Forensic Judicial Appraisal Institute of Tianjin Hexi Hospital was entrusted to appraise the plaintiff's disability grade according to law, and the appraisal center charged the plaintiff an appraisal fee of 1009.4 yuan. On June 8, 20 16, the appraisal center made a judicial appraisal opinion (J.H.W. [2065438+06] No.2995). Appraisal opinion: "The appraised person Liang's right upper limb was injured 1 with X-level disability (10)". According to another investigation, the defendant Du Mou 1 once wrote a written material, which read: "Yesterday afternoon, when I was walking on the road, I saw Liang Mou 1, Du and Du Tianyu walking together. When I remembered noon, he said something about me being short. I thought it was okay to hit him this time, and then I went over and hit him gently with my hand. "
The court of first instance held that
The court of first instance held that citizens' rights to life, health and body are protected by law. Defendant No.45 Middle School is an educational institution, and it is responsible for the education and management of plaintiff and defendant Du Mou 1 from the time they enter the school gate to the time they leave the school gate. Before leaving the school after school, the plaintiff accidentally fell down and was injured while chasing the defendant after slapping the defendant Du Mou 1 on campus. According to the video at the time of the crime, there was no teaching staff in the defendant's No.45 middle school to manage the school order in a unified way. But the students left school by themselves, and the defendant No.45 Middle School was responsible for maintaining order on campus after school, but he did not provide evidence to prove this. In addition, the plaintiff and defendant Du Mou 1 are both people with limited capacity, and they are in a special period of active thinking, especially when students run and tease each other after school. As a compulsory middle school, defendant No.45 Middle School should know and foresee this and take necessary measures within the foreseeable scope. Therefore, the defendant's neglect of the management of the students' after-school order in No.45 middle school should belong to the responsibility of education management, and should bear certain responsibility for the damage to the plaintiff. After the defendant Du Mou 1 deliberately slapped the plaintiff on the head, the plaintiff fell and was injured in the process of chasing the defendant Du Mou 1, which shows that both of them were at fault. According to the above situation, it is determined that the defendant 45 shall bear 20% of the liability, the defendant Du Mou 1 shall bear 40% of the liability, and the plaintiff shall bear 40% of the liability. According to relevant laws and regulations, if a person with limited capacity for civil conduct causes damage to others, the guardian shall bear tort liability. Therefore, the defendants Du Mou 2 and Song Mou, as guardians of the defendant Du Mou 1, should bear the corresponding tort liability for the plaintiff.
Regarding the medical expenses claimed by the plaintiff, 692 1.5 yuan. The plaintiff has deducted the RMB 4,000 yuan paid by the defendant Du Mou on 20 15 12 18. According to Article 19 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases (hereinafter referred to as the Interpretation): "Medical expenses shall be determined according to the receipts and vouchers of medical expenses and hospitalization expenses issued by medical institutions, combined with medical records, diagnosis certificates and other relevant evidence. ..... The amount of compensation for medical expenses shall be determined according to the amount actually incurred before the end of the debate in the court of first instance. " The medical bills submitted by the plaintiff are in compliance with the law and should be a reasonable loss for the plaintiff. The calculated amount of medical expenses is 1087 1.5 yuan.
The food allowance claimed by the plaintiff is 1400 yuan. According to the provisions of Article 23 of the Interpretation: "The food subsidy for hospitalization can be determined with reference to the food subsidy standard for ordinary staff of local state organs." The plaintiff was hospitalized for 14 days, and the amount claimed by the plaintiff was in compliance with relevant laws and regulations, so it was confirmed.
About the nutrition fee claimed by the plaintiff, 2500 yuan. According to Article 24 of the Interpretation: "The nutrition fee is determined according to the degree of disability of the victim and with reference to the opinions of medical institutions." Although the plaintiff did not submit the opinions issued by the medical institution, considering the plaintiff's injury, age and the economic and social development level of this city, it was determined that the defendant would pay the plaintiff 100 day's nutrition fee according to the standard of daily 25 yuan, so the amount claimed by the plaintiff did not violate the relevant laws and regulations, and it was confirmed.
We found that
Regarding the nursing expenses claimed by the plaintiff, 7083.5 yuan. According to the provisions of Article 21 of the Interpretation: "The nursing fee is determined according to the income of nursing staff, the number of nurses and the nursing period. If the nursing staff has income, it shall be calculated with reference to the provisions of the lost time fee; ..... In principle, there are 1 nursing staff, but if the medical institution or appraisal institution has a clear opinion, the number of nursing staff can be determined by reference ... "Although the plaintiff did not submit a clear opinion issued by the medical institution on the need for nursing, according to the plaintiff's injury and age, our hospital determined that he needed one person to care during his hospitalization. Now the plaintiff advocates that the father should take care of it. To this end, the plaintiff provided his father's labor contract, salary payment bank account, tax payment certificate, income certificate and salary withholding certificate to prove his father's lost time. However, the above evidence submitted by the plaintiff can't prove each other's actual reduced income due to lost time. Therefore, the amount of nursing expenses is calculated with reference to the average salary of employees in residential services and other service industries in the previous year, that is, 1535.94 yuan.
Regarding the transportation expenses claimed by the plaintiff, 562. 1 yuan. According to the provisions of Article 22 of the Interpretation: "The transportation expenses shall be calculated according to the actual expenses incurred by the victim and his necessary accompanying personnel for seeking medical treatment or transferring to other hospitals. Transportation expenses should be based on official bills; Relevant credentials should be consistent with the location, time, number and frequency of medical treatment. " Although the transportation bill submitted by the plaintiff is not completely consistent with the actual time and frequency of medical treatment, considering the actual place and frequency of medical treatment of the plaintiff, the transportation fee is determined as 200 yuan as appropriate.
Regarding the disability compensation claimed by the plaintiff, it is 68,202 yuan. According to the provisions of Article 25 of the Interpretation: "Disability compensation is calculated according to the degree or level of disability of the victim, according to the per capita disposable income of urban residents or the per capita net income of rural residents in the last year where the appeal court is located, and it is calculated as 20 years from the date of disability." According to the calculation of the per capita disposable income of urban residents in this city in the previous year, combined with the plaintiff's disability appraisal opinion, the amount of disability compensation claimed by the plaintiff is in compliance with the law and is confirmed.
The appraisal fee claimed by the plaintiff is 1009.4 yuan. This expense is the plaintiff's reasonable expense, which is confirmed.
The plaintiff demanded compensation of 5000 yuan for mental damages. According to the relevant laws and regulations, if the personal rights and interests of others are infringed and serious mental damage is caused to others, the infringed may request compensation for mental damage. According to the degree of personal injury of the plaintiff and its impact on life, the amount claimed by the plaintiff is in compliance with relevant laws and regulations, and it is confirmed.
The tuition fee claimed by the plaintiff is 3600 yuan. The evidence submitted by the plaintiff cannot prove that there is a direct causal relationship between the plaintiff's loss and this injury, so our court does not support the plaintiff's claim.
To sum up, the plaintiff's reasonable losses include medical expenses 1087 1.5 yuan, hospital food subsidies 1.4 yuan, nutrition expenses of 2,500 yuan, nursing expenses 1.535.94 yuan, transportation expenses of 200 yuan, disability compensation of 68,202 yuan and appraisal fees/kloc-0. According to the proportion of liability determined above, the defendants Du Mou 2 and Song should also jointly compensate the plaintiff for various losses of RMB 32,287.53, and the defendant should compensate the plaintiff for various losses of RMB1865,438 for forty-five years. To sum up, according to the provisions of Article 6, paragraph 1, Article 15, paragraph 1 (6), Article 16, Article 26, Article 32 and Article 39 of the Tort Liability Law of People's Republic of China (PRC), and Article 19, Article 21, paragraph 1, paragraph 2, Article 22, paragraph 1 and Article 23 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Applicable Law in the Trial of Personal Injury Compensation Cases, According to the provisions of the first paragraph of Article 64 of the Civil Procedure Law of People's Republic of China (PRC), the defendants Du Mou 2 and Song Mou jointly compensated the plaintiff Liang Mou 1 for medical expenses, hospital food subsidies, nutrition expenses, nursing expenses, transportation expenses, disability compensation, appraisal fees and mental damages totaling 32,287.53 yuan; 2. Within 15 days from the effective date of this judgment, the defendant Tianjin No.45 Middle School compensated the plaintiff Liang for medical expenses 1, hospital food subsidies, nutrition expenses, nursing expenses, transportation expenses, disability compensation, appraisal fees, and mental damages totaling 18 143.77 yuan. Three. Other claims of the plaintiff Liang 1 were rejected. If the obligation to pay money is not fulfilled within the period specified in this judgment, the interest on the debt during the delayed performance shall be doubled in accordance with the provisions of Article 253 of the Civil Procedure Law of People's Republic of China (PRC). The case acceptance fee is 2206 yuan, halved to 1 103 yuan. Plaintiff Liang 1 bears 479 yuan, defendants Du 2 and Song jointly bear 4 16 yuan, and defendant Tianjin No.45 Middle School bears 208 yuan. The appraiser's cross-examination fee in court is 309 yuan, which shall be borne by the defendants Du Mou 2 and Song Mou.
The facts ascertained by our court through trial are consistent with the basic facts ascertained by the court of first instance.
The court held that
Our court believes that citizens' rights to life, health and body are protected by law. On campus, the appellant Du Mou 1 slapped the appellee on the head, and the appellee accidentally fell and was injured while chasing the appellant Du Mou 1. In the process of teasing, the appellant Du Mou 1 and the appellee Liang Mou 1 were both at fault and neglected the order management of school students after school, so they should also bear certain responsibilities. The court of first instance did not improperly confirm the responsibilities of both parties. In the part of the appellee's injury confirmation, the court of first instance entrusted an appraisal institution to appraise the appellee's injury, and the appraisers appeared in court to answer questions. The appraisal conclusion should be used as the basis for finalizing the case. Although the appellant did not approve the appraisal conclusion, he failed to provide sufficient evidence for the re-appraisal, which did not meet the legal requirements for re-appraisal. The court of first instance found that the facts were clear and the applicable law was correct, and the appellant's appeal grounds could not be established, so the appeal request was not supported by the court. To sum up, according to the provisions of Item 1, Paragraph 1, Article 170 of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows:
The verdict of this case
Reject the appeal and uphold the original judgment.
300 yuan, the court acceptance fee for the second instance case, shall be borne by Appellants Du Mou 1, Du Mou 2 and Song Mou.
This is the final judgment.