2

3

4

Plaintiff 3 and 4 are minors, and the legal representative A and the mother B

1. Case history

A. The Defendant is a corporation established pursuant to the Local Public Enterprises Act for the purpose of managing and operating sports facilities designated by the head of the Seoul Special Metropolitan City FF, and is managing and operating the instant swimming pool "An outdoor swimming pool" located in Seoul G (hereinafter referred to as "the instant swimming pool"). The Defendant opened the swimming pool every year during the summer season, while the Defendant opened the instant swimming pool from June 22 to August 25, 2013 during the ordinary day from June 22 to August 25, 2013: 10:00 to 00 for the weekends and holidays, and 10:0 to 19:00 for the day from June 20 to August 25, 201.

B. The swimming of the swimming pool in this case is 882 square meters in floor area ( = 42m x 21m). A half of the swimming pool is 1.2m adult zones (hereinafter referred to as " adult zone"), and the remainder is 0.8m in depth for children (hereinafter referred to as "children's zone"). The adult zone and the children's zone in the swimming pool are divided into a bar line (courpe), and one surveillance tower is installed at both end of the swimming line. The swimming pool in this case is marked as 0.8m in the body of the children's zone and 1.2m in the inside part of the inside part of the entrance of the elementary school in this case, "safety signs are installed," and 3m in the inside part of the entrance of the entrance of the children's zone in this case.

C. On June 2013, the Defendant employed one life-saving license holders as water safety personnel, and posted two persons in the part of the center stone (it is installed at a location where the entire swimming pool can be seen away from 3 to 4 meters from the swimming tank) on the side of the center stone (it is installed at a location where it can be seen as a whole). The Defendant posted two in the part of the part of the center stone, one, and two in the part of the part of the part of the part of the adult zone. The Defendant sent all users out of the manual after the guidance broadcast informing that break time is 45 to 50 minutes each hour. After the guidance broadcast of 1 to 2/10 at each hour, the Defendant had all users enter the manual according to the shock of the safety personnel after the guidance broadcast of 1 to 2/10 at each hour, and the guidance broadcast provides that “the parents accompanied by barracks and infants hereinafter referred to as elementary school can not be mixed.”

D. On July 6, 2013: around 30, Plaintiff D entered the instant swimming pool along with Plaintiff C and this mother I, who is the mother of Plaintiff B and her mother. Plaintiff D left the instant swimming pool for 6 years of age and 7 months at the time, and key was 113cm.

마. 원고 D는 원고 B, C와 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 D를 발견하여 원고 D를 안고 수영조 밖으로 나왔고, 이를 본 다른 이용객이 곧바로 원고 D에게 심폐소생술을 실시하였다. 이후 원고 D는 17 : 22경 대학병원 응급실로 이송되었다. 원고 D는 이로 인하여 무산소성 뇌손상을 입어 사지마비, 양안실명 등의 상태에 이르렀다 ( 이하 ' 이 사건 사고 ' 라 한다 ) .

2. The judgment of the court below

A. The lower court rejected the Plaintiffs’ assertion on the following grounds, citing the reasoning of the judgment of the first instance that rejected the violation of safety management obligation and the employer’s responsibility: (a) there were additional arguments by the Plaintiffs, namely, defects in installation and preservation in the instant swimming pool; and (b) the instant accident occurred. (1) In light of the fact that the instant swimming pool was not installed on the front of the instant swimming pool’s adult-use zone, the “signing sign prohibiting children from entering the swimming of the swimming pool” but was placed on a similar effect, namely, a sign indicating a water depth at the body of the swimming pool; and (c) installed a sign and a key board, it is difficult to deem that the instant swimming pool did not have an ordinary safety required for its use according to social norms.

(2) The difference in height between a children’s zone (0.8m) and an adult zone (1.2m) is not a big difference to the extent of 40cm, and there is no relevant provision that an adult zone and a children’s zone must be physically divided, and it cannot be deemed a defect in the installation and preservation of the swimming pool in this case’s installation and preservation of the swimming pool. (3) Although the swimming pool in this case is installed in the same swimming and the adult zone, it was installed in the same swimming but divided the zone into the course and the zone for children’s use into the upper part of the water surface and divided the zone into the adult zone and the zone for children’s use and the zone for children’s use into approximately five meters near the boundary and did not have an adequate safety facility to prevent children’s use from being easily passed or getting out of the zone for children’s use, it cannot be accepted, in light of the fact that the above safety facility and the zone for children’s use of children’s use of children’s use of children’s use of the same can not be accepted.

(5) Even if the wall surface of this case did not contain a water depth indication required under the Enforcement Rule of the Sports Facilities Act (Attached Table 4), it is difficult to view that there is a proximate causal link between the occurrence of the instant accident and the occurrence of the instant accident, in the instant case where the location obtained by Plaintiff D does not specifically identify whether the area was children’s use area, adult use area, whether it was obtained, the situation of acquisition, the circumstances of the accident, etc.

3. Judgment of the Supreme Court

A. Article 758(1) of the Civil Act provides, “When any damage is inflicted on another person due to a defect in the installation or preservation of a structure, the possessor of the structure is liable to compensate for the damage. However, if the possessor fails to exercise due diligence necessary for the prevention of damage, the possessor of the structure is liable to compensate for the damage.” The legislative intent of the above provision is that the manager of the structure must exercise due diligence necessary for the prevention of danger, and that if the damage is incurred due to the reality of the risk, it is fair to impose liability on him/her. Therefore, the term “defect in the installation or preservation of a structure” refers to a state in which the structure fails to meet the ordinary safety to be equipped with the structure according to its intended purpose. In determining whether it meets the safety above, the determination shall be made on the basis of whether the installer or custodian of the structure has taken preventive measures to the extent generally required in proportion to the risk of the structure (see Supreme Court Decision 7

12. Article 2015Da68348, supra. The burden of proving the existence of a defect lies on the victim, but as long as it is recognized that there was a defect, and such defect is a common cause of the accident, it is reasonable to interpret that the damage was caused by the defect of installation or maintenance of a structure unless it is proved by the owner or possessor of the structure that the accident was inevitable even without such defect (see, e.g., Supreme Court Decisions 2012Da4284, Aug. 27, 2015; 2005, 4.

29. See, e.g., Supreme Court Decision 2004Da66476 Decided 29.

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 the realization of the risk, the expenses incurred in the prior measures to prevent the accident, or the benefits of sacrifice by taking measures to prevent the danger, etc. (see Supreme Court Decision 94Da47803, Aug. 25, 1995).

This legal doctrine is a measure to minimize “risk of unreasonable damage” that requires comparison with the burden of avoiding risk resulting from danger, and thus constitutes a cost and benefit analysis in the law and economics, and a balanced approach. Although the role of balanced establishment to be performed by a judge is important in the tort law that has the characteristic of creating the law, such balanced establishment is only substantial in relation to specific matters, so it is difficult to prepare and present detailed standards in advance. In this case, taking into account the so-called “Hand Rule”, the cost incurred in taking prior measures to prevent accident and the probability of occurrence of accident (B) and the degree of damage (D) and the degree of damage in the event of an accident, the approach to recognize tort liability to the possessor of a structure by deeming that the risk prevention measures required by social norms have not been fully taken than the risk of structure in the case of “P L”.

B. We examine the judgment of the court below in light of the above legal principles. (1) First, on the ground that there is no provision prohibiting the installation of adult zones and children's zones in the same water tank, the defect in the installation and preservation of a facility cannot be readily denied as a matter of course on the ground that there is no provision prohibiting the installation of such adult zones and children's zones. If the swimming pool facility of this case violated the safety-related Acts and subordinate statutes, such as the standards for facilities under the Sports Facilities Act, barring any special circumstance, it can be a ground for recognizing the defect in the installation and preservation of a structure or the violation of duty of care for business (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 concluded that there is no defect in the installation and preservation of a structure under the Illegal Act by keeping the safety ordinarily required for its use (see Supreme Court Decision 2007Da10139

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 0.9 meters and not more than 0.9 meters and not more than 2.7 meters, and the wall surface of the swimming tank shall be marked with a certain distance and depth: Provided, That the foregoing shall not apply with respect to swimming tanks for children, and it shall be determined that water drums, infants, and children’s swimming tanks may be installed as convenience facilities among discretionary facilities, and there is no provision in the sports facilities statutes that may be installed together with swimming tanks, which are children’s swimming tanks, which are sports facilities, as well as convenience facilities. Rather, examining the contents and structure of the relevant regulations, it can be seen that the premise is that a swimming pool and convenience facilities, which are sports facilities, are 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 in their mind, without thoroughly recognizing the risk of an accident, 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 accident caused by the physical separation of the water tank for adults and the water tank for children into the zone for adults.

(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 facilities is 32.5% in cases of children under the age of 12, and 12.9% in cases of adults, and 2.5 times or more in cases of adults (Announcement, July 19, 2018). Of the total number of patients under the age of 958 children under the age of 287 and the total number of patients under the age of 958 are 30% in cases of the total number of patients under the age of 287 and the number of patients under the age of 30% in the emergency room, and the number of children under the age of 12 is 32.5% in cases of children under the age of 12, and the proportion of children’s accident is 2.5 times or more in cases of adults. According to such safety standards, a person who operates the swimming pool as well as a person who has an adequate effort to manage and utilize the accident.

Based on the above circumstances, in comparison with the possibility that an accident may occur where children fall into water due to the separation of adult zone and children's zone from the swimming pool facilities, and the degree of damage expected due to such accident, with the expenses additionally required for the separation of adult zone and children's zone, or the expenses required for the separation of the existing facilities already installed, the former can sufficiently be expected to greater than the former. From this perspective, it can be seen that there is a defect in the installation and preservation of the swimming pool in the instant swimming pool, and therefore, it cannot be said that the Defendant, who did not take such measures as the manager of the swimming pool, is not liable as a structure manager.

(3) Next, the lower court deemed it difficult to view that there was a proximate causal relationship between the error and the accident of this case, as long as Plaintiff D’s entry into a swimming pool could not specifically identify the location of the accident, including any point. However, this part is also difficult to accept. However, even according to the reasoning of the lower judgment, this part of the lower judgment is also reasonable to have determined that there is no proximate causal relationship between the defect and the accident of this case, even if the instant swimming pool violated the facility standards for the sports facility business. However, even if the lower court found that there was a defect in violation of the facility standards for the sports facility business, and that there was a mistake that the instant swimming pool did not properly indicate the fact that a child of 113 cm at a height of 1.2 meters in the swimming pool did not have any such defect while examining the accident that was discharged from water in the adult zone with a depth of 1.2 meters in the swimming pool, even if there was no such defect.

As a result, there is a defect in the fact that the swimming pool of this case was placed in the same swimming of adult zone and children's zone, and that it did not properly indicate that the accident of this case occurred due to such defect, it cannot be deemed that the defendant is not liable to the defendant as long as it is deemed that the accident of this case occurred. Meanwhile, even if the violation of the duty of care, such as the plaintiff B, who is responsible for protecting and supervising the plaintiff D in this case was a joint cause for the occurrence of the accident of this case, this does not interfere with the defendant to recognize liability for the defect in the installation and preservation of the swimming pool of this case (see Supreme Court Decision 2009Da101343, Apr. 29, 2010, etc.).

C. Nevertheless, the lower court rejected the Plaintiff’s assertion on the Defendant’s structural responsibility. In so determining, 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 remaining 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 on the bench.

Justices Kwon Soon-il

Justices Lee Ki-taik

Justices Kim Jong-soo