[손해배상(기)]〈어린이가 수영장에 빠져 중상해를 입은 것에 대하여 수영장 관리자에게 손해배상을 청구한 사건〉[공2020상,158]
[1] The meaning of "defect in the construction and preservation of a structure" under Article 758 (1) of the Civil Code, and the criteria and method for determining its existence
[2] 지방공기업인 갑 공단이 관리·운영하는 수영장은 하나의 수영조에 깊이가 다른 성인용 구역과 어린이용 구역이 수면 위에 떠있는 코스로프(course rope)만으로 구분되어 함께 설치되어 있고, 수심 표시가 체육시설의 설치·이용에 관한 법률 시행규칙 제8조 [별표 4]에서 정한 수영조의 벽면이 아니라 수영조의 각 구역 테두리 부분에 되어 있는데, 을(사고 당시 만 6세)이 어머니 병, 누나 정과 함께 어린이용 구역에서 물놀이를 하고 밖으로 나와 쉰 다음 다시 물놀이를 하기 위해 혼자서 수영조 쪽으로 뛰어갔다가 튜브 없이 성인용 구역에 빠져 의식을 잃은 채 발견되는 사고로 무산소성 뇌손상을 입어 사지마비, 양안실명 등의 상태에 이르자, 을, 병, 정 및 아버지 무가 갑 공단을 상대로 수영장에 설치·보존상 하자가 있다고 주장하면서 민법 제758조 제1항 에 따른 손해배상을 구한 사안에서, 위 수영장에는 성인용 구역과 어린이용 구역을 동일한 수영조에 두었다는 점과 수심 표시를 제대로 하지 않은 점 등의 하자가 있고, 이러한 하자 때문에 위 사고가 발생하였다고 볼 수 있는 이상 갑 공단에 책임이 없다고 할 수 없으며, 을에 대한 보호감독의무를 부담하는 병 등의 주의의무 위반이 사고 발생의 공동원인이 되었더라도 이것이 갑 공단에 대하여 수영장의 설치·보존상 하자로 인한 책임을 인정하는 데 장애가 되지 않는데도, 이와 달리 보아 을 등의 주장을 배척한 원심판단에는 공작물책임에 관한 법리오해 등의 잘못이 있다고 한 사례
[1] Article 758(1) of the Civil Act provides, “When any damage is inflicted on another person due to a defect in the construction or maintenance of a structure, the possessor of the structure shall be liable for the damage. However, if the possessor fails to exercise due care necessary for the prevention of damage, the possessor shall be liable for the damage.” The legislative purport of the above provision is that the manager of the structure shall exercise due care necessary for the prevention of danger, and that the manager of the structure shall be fair to impose liability for the damage if the damage is incurred due to the reality of the risk. Therefore, the term “defect in the construction or maintenance of the structure” refers to the state where the structure does not have ordinary safety to be installed according to its intended purpose. In determining whether the construction or maintenance of the structure meets the above safety requirements, it shall be determined based on whether the person who installs or preserves the structure has taken measures to prevent danger to the extent generally required in proportion to the risk of the structure. However, as long as the existence of the defect is recognized as a victim, and the defect is common cause of the accident, it shall be interpreted that the defect was not caused by the owner or possessor of the structure.
In such cases, when determining a defect, the degree of possibility of realizing the risk, the gravity of the legal interest infringed upon when the accident occurred due to the realization of the risk, the degree of damage, the expenses incurred in the prior measures to prevent the accident, or the benefits of sacrifice by taking measures to prevent the danger, etc. shall be
This legal doctrine requires the comparison of the burden of avoiding the risk resulting from the risk as a measure to minimize the “risk of unreasonable damage,” and corresponds to the cost and benefit analysis in law and economics, and the balanced access method. Although the role of balanced creation to be performed by a judge is important in the tort law, which has the characteristic of creating the law, it is important to create such balance only in relation to specific matters, it is difficult to prepare and present detailed standards in advance. In this context, referring to the so-called “Hand Rule,” the expenses incurred in taking prior measures to prevent accidents (B), the probability of occurrence of accidents, and the degree of damage in the event of an accident, and the method of recognizing the owner of a structure’s tort liability by deeming that the “B-B” did not fulfill all the preventive measures required by social norms compared to the risk of structure.
[2] 지방공기업인 갑 공단이 관리·운영하는 수영장은 하나의 수영조에 깊이가 다른 성인용 구역과 어린이용 구역이 수면 위에 떠있는 코스로프(course rope)만으로 구분되어 함께 설치되어 있고, 수심 표시가 체육시설의 설치·이용에 관한 법률 시행규칙(이하 ‘체육시설법 시행규칙’이라 한다) 제8조 [별표 4]에서 정한 수영조의 벽면이 아니라 수영조의 각 구역 테두리 부분에 되어 있는데, 을(사고 당시 만 6세)이 어머니 병, 누나 정과 함께 어린이용 구역에서 물놀이를 하고 밖으로 나와 쉰 다음 다시 물놀이를 하기 위해 혼자서 수영조 쪽으로 뛰어갔다가 튜브 없이 성인용 구역에 빠져 의식을 잃은 채 발견되는 사고로 무산소성 뇌손상을 입어 사지마비, 양안실명 등의 상태에 이르자, 을, 병, 정 및 아버지 무가 갑 공단을 상대로 수영장에 설치·보존상 하자가 있다고 주장하면서 민법 제758조 제1항 에 따른 손해배상을 구한 사안에서, 체육시설의 설치·이용에 관한 법률상 시설 기준 등 안전 관련 법령을 위반하지 않았다고 하여 공작물이 그 용도에 따라 통상 갖추어야 하는 안전성을 갖추었다고 단정할 수 없는 점, 체육시설 관련 규정의 내용 및 체계를 살펴보면 운동시설인 수영장과 편의시설인 물 미끄럼대, 유아 및 어린이용 수영조는 구분하여 설치하는 것을 전제로 하고 있는 점, 하나의 수영조에 성인용 구역과 어린이용 구역이 함께 있는 경우 수영조가 분리되어 있는 경우보다 어린이가 물에 빠지는 사고가 발생할 가능성이 더 높은 점, 수영장 시설에서 성인용 구역과 어린이용 구역을 분리하지 아니함으로 인하여 어린이가 물에 빠지는 사고가 발생할 가능성과 그와 같은 사고로 인하여 예상되는 피해의 정도를 성인용 구역과 어린이용 구역을 분리하여 설치하는 데 추가로 소요되는 비용 내지 이미 설치된 기존시설을 위와 같이 분리하는 데 소요되는 비용과 비교하면, 전자가 훨씬 더 클 것임을 충분히 예상할 수 있는 점, 갑 공단이 체육시설법 시행규칙 제8조 [별표 4]를 위반하여 수심 표시를 수영조의 벽면에 제대로 하지 않은 점 등을 종합하면, 위 수영장에는 성인용 구역과 어린이용 구역을 동일한 수영조에 두었다는 점과 수심 표시를 제대로 하지 않은 점 등의 하자가 있고, 이러한 하자 때문에 위 사고가 발생하였다고 볼 수 있는 이상 갑 공단에 책임이 없다고 할 수 없으며, 을에 대한 보호감독의무를 부담하는 병 등의 주의의무 위반이 사고 발생의 공동원인이 되었더라도 이것이 갑 공단에 대하여 수영장의 설치·보존상 하자로 인한 책임을 인정하는 데 장애가 되지 않는데도, 이와 달리 보아 갑 공단의 공작물책임에 관한 을 등의 주장을 배척한 원심판단에는 공작물책임에 관한 법리오해 등의 잘못이 있다고 한 사례.
[1] Article 758(1) of the Civil Act / [2] Article 758(1) of the Civil Act, Article 11(1) of the Installation and Utilization of Sports Facilities Act, Article 8 [Attachment 4] of the Enforcement Rule of the Installation and Utilization of Sports Facilities Act
[1] Supreme Court Decision 94Da47803 Decided August 25, 1995 (Gong1995Ha, 3269), Supreme Court Decision 2004Da66476 Decided April 29, 2005, Supreme Court Decision 2012Da42284 Decided August 27, 2015, Supreme Court Decision 2015Da68348 Decided July 12, 2018 (Gong2018Ha, 1573)
Plaintiff 1 and three others (Plaintiff 3 and 4 are minors, and the legal representative Plaintiff 1 and mother 2) (Law Firm Sejongdong, Attorneys Kim Tae-hwan et al., Counsel for the plaintiff-appellant)
Seongbuk-gu Seoul Metropolitan Government Urban Management Corporation (Attorney Cho Jong-tae, Counsel for the defendant-appellant)
Seoul High Court Decision 2015Na24241 decided February 8, 2017
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal are examined.
1. Case history
A. The Defendant is a juristic person established pursuant to the Local Public Enterprises Act for the purpose of managing and operating the sports facilities designated by the head of Seongdong-gu Seoul Metropolitan Government, and is managing and operating the instant swimming pool “○○ Outdoor swimming pool” located in Seongdong-gu Seoul ( Address omitted) (hereinafter “instant swimming pool”). The Defendant opened the swimming pool every year during the summer season, and the Defendant was able to use the swimming pool every year during the summer season from June 22 to August 25, 2013, with the usual day from June 22 to August 25, 2013, and the weekend and holiday 10:0-19:00 to August 100, and the weekly and holiday 10:00 to 19:00 for the general public to use the swimming pool.
B. The swimming tank of the swimming pool of this case is 882m2 square meters in floor area (=42m x 21m). Among them, half of them are adult zones with a depth of 1.2m (hereinafter “sexual recognition zone”) and the rest of half is children’s zone with a depth of 0.8m (hereinafter “children’s zone”). The adult use zone and children’s use zone of the swimming pool of this case are divided into OSVe which leaves the surface of the water, and one monitoring tower is installed at each end of the swimming line. In order to show the depth of water, the swimming tank of this case is marked “0.8m” at the inside part of the inside part of the entrance of the children’s use zone, and “1.2m” at the inside part of the inside part of the entrance of the adult use zone, one of the safety signs should be installed at the entrance of the children, and the safety signs of this case can be installed at the entrance of the children.”
C. On June 2013, the Defendant employed the holders of life-saving certificates as water safety personnel, and posted 1 each at each monitoring tower on the side of the headquarters (it is installed at a location where a swimming pool can be seen as a whole away from 3 to 4 meters from water tanks) and 2 at each side of the headquarters (it is installed at a location where a swimming pool can be seen as a whole). The Defendant sent 45-50 minutes of break time to outside of the manual after the broadcast informing that the break time is 45-5 minutes at each hour, and let all users enter a water tank according to the voice of the safety personnel after the broadcast of 1/2 of the information at each hour. The broadcast provides that “Isn's parents accompanied by infants and infants at elementary school so that children do not l's thickness.”
D. At around July 6, 2013, Plaintiff 4 entered the instant swimming pool together with Plaintiff 2, her mother, Plaintiff 3, and Nonparty, the mother of Plaintiff 15:30 on July 6, 2013. Plaintiff 4 left the said swimming pool for 6 years of age and 7 months, and key was 113cm.
마. 원고 4는 원고 2, 원고 3과 함께 어린이용 구역에서 물놀이를 하다가 16:45경 수영조 밖으로 나와 쉰 다음, 17:00경 다시 물놀이를 하기 위해 혼자서 수영조 쪽으로 뛰어갔다. 성명불상의 이용객은 17:05경 튜브 없이 성인용 구역에 빠져 의식을 잃은 원고 4를 발견하여 원고 4를 안고 수영조 밖으로 나왔고, 이를 본 다른 이용객이 곧바로 원고 4에게 심폐소생술을 실시하였다. 이후 원고 4는 17:22경 대학병원 응급실로 이송되었다. 원고 4는 이로 인하여 무산소성 뇌손상을 입어 사지마비, 양안실명 등의 상태에 이르렀다(이하 ‘이 사건 사고’라 한다).
2. The judgment of the court below
The lower court rejected the Plaintiffs’ assertion on the following grounds, citing the reasoning of the first instance judgment rejecting the violation of the duty of safety management and the employer’s liability, that is, there were additional arguments by the Plaintiffs, namely, defects in the establishment and preservation of the instant swimming pool.
A. In light of the measures that could have a similar effect even if the “children’s entry prohibition sign” was not installed in front of the adult zone of the instant swimming pool, i.e., the inquiree mark was placed at the body of the swimming pool, and the safety rules sign and the key board was installed, etc., it is difficult to deem the instant swimming pool to have failed to meet the safety requirements ordinarily required for its use by social norms.
B. In light of the fact that the height difference between a children’s zone (0.8m) and an adult zone (1.2m) is not a large difference of about 40cm, and there is no relevant provision that an adult zone and a children’s zone should be installed physically, it cannot be deemed that the installation and preservation defect of the swimming pool in this case is not a defect in the installation and preservation of the swimming pool.
C. Although the swimming pool of this case establishes a children's use zone and adult use zone in the same swimming section, the plaintiffs' assertion on this premise is not acceptable, unless there is no evidence to prove that the plaintiff 4 entered a children's use zone and went beyond the children's use zone and went beyond the adult use zone and caused the accident of this case, even though it was divided into a 5-meter slope of length toward the adult use zone and did not install a proper safety facility to prevent children from easily passing away from the adult use zone to the adult use zone or getting out the slope.
D. In light of the fact that the swimming pool of this case is not established for pure adults, but for adult and children’s zone was established in the same swimming tank, and the depth criteria under Article 8 [Attachment 4] of the Enforcement Rule of the Installation and Utilization of Sports Facilities Act (hereinafter “Enforcement Rule of the Sports Facilities Act”) do not constitute the swimming for children, and there is no provision prohibiting the installation of adult and children’s zone in the same swimming tank, it cannot be deemed that there is a defect in the installation and preservation of the swimming pool of this case in violation of the above standards under the swimming pool of this case solely on the ground that the swimming pool of this case was placed in a children’s zone within 0.8 meters in the same swimming tank.
E. Even if the surface of the wall of this case did not include a water depth indication required under Article 8 [Attachment 4] of the Enforcement Rule of the Sports Facilities Act, it is difficult to view that there is a proximate causal relation between the occurrence of the instant accident and the occurrence of the instant accident in this case where the place obtained by Plaintiff 4 is a children’s zone, whether it is an adult zone, whether it is obtained, the situation of acquisition, and the circumstances of the accident.
3. Judgment of the Supreme Court
A. Article 758(1) of the Civil Act provides, “When a person causes damage to another person due to a defect in the construction or maintenance of a structure, the possessor of the structure shall be liable for damages. However, if the possessor fails to exercise due diligence necessary for the prevention of damages, the possessor of the structure shall be liable for damages.” The legislative purport of the above provision is that the manager of the structure shall exercise due diligence necessary for the prevention of danger, and that the manager of the structure shall be fair to impose liability on him/her in cases where the damage was incurred due to the realization of the risks. Therefore, the term “defect in the construction or maintenance of a structure” refers to a situation where the structure does not have ordinary safety to be installed according to its intended purpose. In determining whether the construction or maintenance of the structure meets the above safety requirements, it shall be determined based on whether the person who installs or preserves the structure has fulfilled the duty of prevention of danger to the extent generally required in proportion to the risk of the structure (see, e.g., Supreme Court Decision 2015Da68348, Jul. 12, 2018).
In such a case, when determining whether there is a defect, the degree of possibility of realizing the risk, the degree of serious damage to the legal interest infringed upon when the accident occurred due to realizing the risk, expenses incurred in advance measures to prevent the accident, or profits sacrificeed by taking measures to prevent the danger, etc. (see Supreme Court Decision 94Da47803, Aug. 25, 1995).
This legal doctrine requires comparison with the burden of avoiding the risk resulting from the risk as a measure to minimize the “risk of unreasonable damage,” thereby constituting a cost and benefit analysis in law and economics, and a balanced access approach. Although the role of balanced creation to be performed by a judge is important in the tort law having the nature of creating a law, it is essential to establish such balance only in relation to specific matters, so it is difficult to prepare and present detailed standards in advance. In this context, referring to the so-called “Hand Rule”, the expenses incurred in taking prior measures to prevent accidents (B), the probability of occurrence of accidents, and the degree of damage in the event of an accident, and the method of recognizing the owner of a structure’s tort liability can also be considered in light of the fact that the “B-B” did not take preventive measures required by social norms compared to the risk of a structure.
B. We examine the judgment of the court below in light of the above legal principles.
(1) First, there is no provision prohibiting the installation of an adult-use area and a children’s zone in the same swimming tank as a matter of course, and thus, cannot be readily denied the installation and preservation defect as a matter of course. If the swimming pool facility of this case violated the safety-related Acts and subordinate statutes, such as the standards for facilities under the Installation and Utilization of Sports Facilities Act, barring any special circumstance, it can be a ground for recognizing any defect in the installation and preservation of structures or breach of duty of care on duty (see, e.g., Supreme Court Decision 2008Da61615, Feb. 11, 2010). However, on the ground that there is no violation of such Acts and subordinate statutes, it cannot be readily concluded that there is no defect in the installation and preservation of structures under the Illegal Act by keeping the safety ordinarily equipped with according to its use (see Supreme Court Decision 2007Da10139, Jun. 28, 2007).
Article 8 [Attachment 4] 2(i) of the Enforcement Rule of the Sports Facilities Act, the depth of a swimming pool, which is a sports facility, shall be at least 0.9m but not more than 2.7m, and a certain distance and depth shall be displayed on the wall surface of the swimming tank: Provided, That it is determined that a swimming tank for children may not be complied with this standard, and it is determined that a water slick, infant, and children’s swimming tank may be installed as a convenience facility among voluntary facilities, and there is no provision that a water slick, infant, and children’s swimming tank, which is a convenience facility, may be installed together in the sports facility. Rather, examining the contents and structure of the relevant provisions, it is found that the premise is that a swimming pool and convenience facility, which is a sports facility, is installed separately.
An adult zone with different depth in a water tank and a zone for children are located together with a zone for adults, children can have access to the zone for adults more easily than a swimming pool where the water tank for children and the water tank for children are separated. As a result, children are more likely to have an accident that children enter the zone for adults and live in the zone for adults. This is because children, compared to adults, are likely to have an accident that children live in the zone for adults, without thoroughly recognizing the risk of an accident, without thoroughly recognizing the risk of an accident in the zone for adults, by physically separating the water tank for adults and the water tank for children. Considering this point, it is necessary to block the risk of an accident that may occur due to the physical separation of the water tank for children into the zone for adults and the water tank for children.
(2) According to the recently announced data by the Korea Centers for Disease Control and Prevention, the probability of the occurrence of an accident at a swimming pool facility among the places where the accident occurred to be occurred by patients who were located in an emergency room from 2010 to 2016 is 32.5% in cases of children under 12 years of age, and 12.9% in cases of adults, and the proportion of children’s accident is 2.5 times or more in cases of adults (e.g., July 19, 2018). From among the total number of children under 958 children under 28 years of age in an emergency room who were located in an emergency room by 287 and were 30% in total number of patients, and who were 9 years of age in an emergency room is 287 and have a higher proportion than other age groups (e.g., announcement on June 20, 2019). According to such data, a person who manages and operates a swimming pool has to take adequate measures to prevent the occurrence of accidents in water safety standards.
Based on the above circumstances, in comparison with the possibility that an accident may occur where children fall into water due to the failure of the swimming pool facilities to separate adult-use zones and children-use zones, and the degree of damage expected due to such accident, it can be sufficiently expected that the former is far greater than the expenses incurred in the separate installation of the adult-use zone and children-use zones, or the expenses incurred in the separation of the existing facilities already installed. From this perspective, the instant swimming pool can be seen as defective installation and preservation, and therefore, it cannot be said that the Defendant, who did not take such measures as above, as a manager of a swimming pool, is not liable as a structure.
(3) Next, the lower court deemed that there was a proximate causal relationship between the occurrence of the instant accident and the instant accident, as long as Plaintiff 4’s entry into a swimming pool could not be specifically known, even if the water depth was not indicated on the wall of this case. However, this part of the lower judgment is also difficult to accept. However, even according to the reasoning of the lower judgment, it is reasonable to deem that the instant swimming pool violated the facility standards for the sports facility business, and even if it was found that there was a defect in violation of the facility standards for the instant sports facility business, and that there was a mistake in failing to properly indicate the wall of the swimming pool, even if it was found that it was inevitable for a child of 113 cm in a water area with a depth of 1.2 meters from the swimming pool to examine the accident that was located in a water in a water area without such defect, even if there was no such defect, it was not revealed that there was an inevitable reason to determine
Ultimately, there are defects such as the fact that the swimming pool of this case was placed in the same swimming section as adult and children's zone, and that it did not properly indicate the depth, and as long as it can be deemed that the accident of this case occurred due to such defects, it cannot be deemed that the defendant is not liable to the defendant.
(4) Meanwhile, even if Plaintiff 2, etc.’s breach of the duty to protect and supervise Plaintiff 4 in the instant case was a common cause for the instant accident, this does not interfere with recognizing the Defendant’s liability for the defect in the installation and preservation of the swimming pool (see, e.g., Supreme Court Decision 2009Da101343, Apr. 29, 2010).
C. Nevertheless, the lower court rejected the Plaintiffs’ assertion on the Defendant’s structural responsibility. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit
4. Conclusion
Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices
Justices Park Jung-hwa (Presiding Justice)