2014Na53066 Damages

1.A

-

2.B

3.C

4.D

5.E

6.F

Plaintiff 5 and 6 are minors, and the legal representative C/MaD

Busan Metropolitan City

Representative MarketG

Law Firm H, Attorney Park H

Busan District Court Decision 2014Gahap41066 Decided August 21, 2014

April 9, 2015

May 21, 2015

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant jointly and severally with the Co-Defendant in the first instance trial, jointly and severally with the Busan Metropolitan City Co-Defendant in the Shipping Daegu, paid the Plaintiff KRW 31,428,571, and KRW 19,285,714, and KRW 76,618, and KRW 5,000,000 to the Plaintiff C, and KRW 2,00,000,000 to the Plaintiff, respectively, as well as KRW 2,00,00,000 from June 4, 2013 to the delivery date of a copy of the application for change of claim and the applicant, and KRW 20% per annum from the following day to the date of full payment.

2. Purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked, and all of the plaintiffs' claims corresponding to the above revocation shall be dismissed.

1. Basic facts

A. Plaintiff A’s wife, Plaintiff B, and C are the deceased J’s children, Plaintiff D’s wife (Plaintiff C’s wife), Plaintiff E, and F are the deceased J’s grandchildren (Plaintiff C’s children).

B. The Busan Metropolitan City Mayor, which is the Mayor/Do governor within his jurisdiction pursuant to Article 8(2) of the River Act, is a diversary river in Busan Metropolitan City (hereinafter referred to as the "river in this case") and is responsible for the management of the river as the river management agency (Provided, That it is delegated to the head of Busan Metropolitan City Maritime Transportation Authority by the Busan Metropolitan City Ordinance on the Delegation of Administrative Affairs, such as the maintenance and repair of local rivers and the inspection of the status of river management).

C. On June 3, 2013, around 21:28, the deceased J died on December 25, 2013 (hereinafter “the instant accident”) in the course of being hospitalized at a hospital due to falling down under the bank below approximately 4.6 meters and falling down under around 4.6 meters, and died on June 25, 2013 (hereinafter “the instant accident”). [Grounds for recognition] The fact that there is no dispute, Gap evidence 1, 2, 9 (including each number; hereinafter the same shall apply), Eul evidence 2, or 4, and the purport of the entire pleadings, as a whole, the entire arguments and arguments.

2. Occurrence of liability for damages;

A. According to the above facts, the Mayor of Busan Metropolitan City as a person in charge of the maintenance and management of the river of this case, where causation is acknowledged between the defects in the installation and management of the river of this case and the accident of this case, the defendant, who is a local government to which the Mayor of Busan Metropolitan City belongs, is liable to compensate for such damage under Article 5(1) of the State Compensation Act.

B. The defect in the construction and management of a public structure under Article 5 of the State Compensation Act refers to the defect in the construction and management of the public structure that is incomplete, and thus, it is in a state where the public structure itself does not have safety enough to have ordinary safety (see Supreme Court Decision 94Da32924, Nov. 22, 1994). Whether such safety is satisfied should be determined based on whether the installer or manager of the public structure has fulfilled his/her duty to take protective measures to the extent that is generally required by social norms in proportion to the danger of the public structure (see Supreme Court Decision 2013Da208074, Oct. 24, 2013).

In light of the above legal principles, the following circumstances can be acknowledged by comprehensively considering the entries and images of No. 3, Eul evidence No. 1, Eul evidence No. 1, Eul evidence No. 1, Eul evidence No. 2, 5, 8, and 9 as a result of the first instance court’s on-site inspection, and the overall purport of the pleadings at the court of first instance. In other words, the accident point of this case is limited to the height of concrete protection wall installed in the bank on the name of about 50cm (or about 20cm at a low level) at the 4-5 meters long, which could cause death if a person falls short of the river, and even if the accident point of this case is ordinarily offered to pedestrians’ walking, the pedestrian traffic of this case is relatively frequent due to the underground railroad station No. 1, Eul evidence No. 1, Eul evidence No. 2, 5, 8, and 9, and the first instance court’s on-site inspection.

Therefore, there is a defect in the construction and management of the instant river due to the lack of safety fences, etc. to prevent people from falling, and the instant accident occurred due to such defect, so the Defendant is liable to compensate the damages suffered by the Plaintiffs due to the defect in the construction and management of public structures pursuant to Article 2 of the State Compensation Act.

3. Limitation on liability for damages.

On the other hand, the instant accident point appears to have been installed with the purpose of preventing the vehicle crash, and the instant accident is an accident occurred when the Deceased sits on the defense wall while under the influence of alcohol and falling down on his own, and then falling down again, and a simple simple provision was provided for a break-down room where the decedent might have been seated down immediately next to the accident, and the instant accident point seems to have been well aware of the state of the sloping and embankment at the place where the Deceased walk. In light of the above, the Deceased’s error was committed in the instant accident, and since such error was the major cause of the instant accident, it is reasonable to determine that the Deceased’s negligence was 90%.

4. Scope of liability for damages

(a) Expenses incurred in relation to the treatment of king (the expenditure of Plaintiff C): 17,62,954 won (the purport of all the entries and changes in evidence A No. 6-1 through 4);

(b) Nursing expenses;

1) According to the records of No. 10, and the result of the investigation into the history of the first instance court’s high university uniform hospital funeral, the deceased was in need of occasional nursing during the period of hospitalization (16 hours = 24 hours - 8 hours) excluding the WIG hours. The opening of the opening of the opening of the opening of the Plaintiff, who received KRW 5,00 per day from the Plaintiff C for 206 days from June 3, 2013 to December 25, 2013, and received KRW 5,00 per day from the Plaintiff and received KRW 12 hours per day from the deceased, except the opening of the opening of K, thereby recognizing the fact that the Plaintiff A opened the opening of the opening of the Plaintiff other than the opening of the opening of the opening of K. Accordingly, in addition to the opening of K, the deceased’s opening of the opening of the 10-day 5 hours per day (16-hour 4 hours and 16-hour 2 hours per day.

2) Calculation

① Nursing expenses paid by Plaintiff C: 11,330,000 won (i.e., nursing expenses of KRW 55,000 per day)

② The opening costs under the opening of Plaintiff A: 8,535,485 won (i.e., urban daily wage of 81,443 won from June 3, 2013 to August 31, 2013 x 0.5 x 90 days + 83,975 won for urban daily wages from September 1, 2013 to December 25, 2013 x 0.5 x 116 days)

③ Total amount: 19,865,485 won (=1,30,000 won + 8,535,485 won, and the nursing expenses for the above recognition are claimed only by Plaintiff C. Since Plaintiff A did not separately claim it, it is deemed Plaintiff C’s damage).

(c) Funeral expenses (Disbursement by the plaintiff C): 3,000,000 won (the fact that there is no dispute).

(d) Set-off of negligence;

1) The defendant's liability ratio: 10%

2) Set-off of negligence in relation to the king treatment expenses, nursing expenses, and funeral expenses paid by the Plaintiff C: 4,052,843 won [17,62,954 won + 19,865,485 won + 3,000,000 won + 10%, hereinafter the same shall apply];

(e) consolation money;

1) Reasons for taking into account: The deceased’s age, family relation, background and result of the instant accident at the time of the instant accident, the grounds for limitation of liability as seen earlier, and other various circumstances revealed in the instant argument.

(ii) the amount determined;

(1) Deceased: 10,000,000

② Plaintiff A: 5,000,000 won

③ Plaintiff B and C: 1,500,000 won each.

④ Plaintiff D, E, and F: 500,000 won, respectively.

(f) Inheritance relationship;

(a) Amount of inheritance: 10,000,000 won for consolation money of the deceased; and

2) Inheritor and share of inheritance: Plaintiff A3/7, the deceased’s spouse, Plaintiff B, and C, the deceased’s children, respectively, 2/7

(iii) calculation;

① Plaintiff A: 4,285,714 (=10,000,000 x 3/7)

② Plaintiff B and C: 2,857,142 won (=10,000,000) x 2/7)

G. Damages by plaintiff

1) Plaintiff A: KRW 9,285,714 (i.e., unique consolation money of KRW 5,000,000 + Shares of inheritance for consolation money of the Deceased 4,285,714)

2) Plaintiff B: KRW 4,357,142 (i.e., unique consolation money of KRW 1,500,000 + Shares of inheritance for consolation money of the Deceased 2,857,142)

3) Plaintiff C: 8,409,985 won (=property damage of KRW 4,052,843 + proper consolation money of KRW 1,50,000 + Inheritance portion of consolation money of KRW 2,857,142) of the deceased

4) Plaintiffs D, E, and F: 500,000 won, respectively, per unique consolation money.

H. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff A 9,285,714 won, 4,357,142 won, 8,409,985 won, 400,000 won to the plaintiff C, and 50,000 won for each of them after the accident of this case. Since June 4, 2013, the plaintiff sought after the accident of this case, it is highly reasonable that the defendant's dispute over the existence and scope of the duty to perform as to the defendant from June 4, 2013 to August 21, 2014, which is the date of the first instance judgment, 5% per annum under the Civil Act until August 21, 2014, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment.

5. Conclusion

Therefore, the plaintiffs' claim of this case is justified within the scope of the above recognition and it is dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Exemplary (Presiding Judge)

Franchisia

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