Where damage was incurred due to a defect in a structure, but the risk of the defect in the structure is not realized, whether it can be seen as “damage caused by a defect in the installation or preservation of a structure” (negative)

Article 758(1) of the Civil Act

Supreme Court Decision 2008Da61615 Decided February 11, 2010 (Gong2010Sang, 507)

See Attached List of Plaintiffs (Law Firm Uff, Attorneys Yu-soo et al., Counsel for the plaintiff-appellant)

Korea Water Resources Corporation (Law Firm Sejong, Attorneys Kang Shin-sok et al., Counsel for the plaintiff-appellant)

Daegu District Court Decision 2014Na30081 Decided October 28, 2015

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. Article 758(1) of the Civil Act provides, “When any damage has been 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 person who manages and owns the structure shall exercise due care for the prevention of danger, and that the person who manages and owns the structure shall be held liable for the damage if the damage has occurred due to the reality of the risk. Therefore, the term “defect in the construction or maintenance of the structure” refers to the state in which the structure does not have ordinary safety required for its intended purpose. In determining whether the safety meets the above, it shall be determined on the basis of whether the installer and custodian of the structure fulfilled his/her duty to take protective measures to the extent generally required in proportion to the risk of the structure (see, e.g., Supreme Court Decision 2008Da61615, Feb. 11

In light of the contents and legislative purport of the provisions on the liability of structures as above, and the criteria for determining the “defect in the installation and preservation of a structure,” even if a certain damage was caused by a defect in a structure, if the damage was not caused by a realistic realization of the risk related to the defect in the structure, it cannot be deemed as “damage caused by a defect in the installation or preservation of a structure”

2. According to the records, the Plaintiffs filed a claim against the Defendant for damages arising from the structure liability under Article 758(1) of the Civil Act, on the ground that the Defendant was the owner and occupant of the instant temporary structure, and the instant accident occurred because the Plaintiffs failed to properly install and manage the instant temporary structure, and thereby, the Plaintiffs suffered emotional distress due to their failure to be supplied with tap water.

However, the damages claimed by the plaintiffs are not caused by reality as a result of a structure’s failure to meet the safety ordinarily required to be installed according to its usage, but the temporary blocking of this case, which is a structure, did not function as a water blocking, thereby lowering the upper level of the structure, and thereby resulting in failure to perform the duty of affirmative performance to supply tap water. According to the above legal principles, the above damages cannot be deemed as damages related to the legal interests that the defendant and the old and previous market were to protect as a structure’s responsibility, and therefore, the plaintiffs’ claims for this part cannot be accepted without need to further examine.

Unlike the above, the lower court’s determination on the establishment of structure liability or the exemption of the Defendant’s liability on the premise that such damage was caused by the realization of the risks associated with the structure. However, it is justifiable to have rejected the Plaintiffs’ claim on the ground that it did not recognize the structure liability. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Ko Young-han (Presiding Justice)