[1] The meaning of "defect in the construction or maintenance of a structure" under Article 758 (1) of the Civil Code and the standard for determining its existence

[2] Whether the damage caused by the competition with the act of a third party or a victim is deemed to have occurred due to the defect in the installation or preservation of a structure (affirmative)

[3] In a case where a patient hospitalized in a hospital due to a mental illness died far from the hospital rooftop, the case holding that even if it is highly probable that the cause of the death of the deceased was the cause of death, and the hospital could have predicted suicide itself, if the defect in the installation or preservation of the deceased’s suicide was one of the common causes of the accident, the installer or manager of the structure cannot be exempted from liability for damages

[1] Article 758 (1) of the Civil Act / [2] Article 758 (1) of the Civil Act / [3] Article 758 (1) of the Civil Act

[1] [2] Supreme Court Decision 2007Da10139 Decided June 28, 2007 / [1] Supreme Court Decision 2003Da24499 Decided January 14, 2005 (Gong2005Sang, 271) Supreme Court Decision 2004Da21053 Decided January 26, 2006 (Gong2006Sang, 309), Supreme Court Decision 2008Da61615 Decided February 11, 2010 (Gong2010Sang, 507)

Plaintiff 1 and one other (Law Firm Sejong, Attorneys Choi Jong-ho et al., Counsel for the plaintiff-appellant)

School of Annual Generation of a School Foundation (Attorney Park Young-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na9933 decided November 26, 2009

Of the judgment of the court below, the part on the plaintiff 1, 69,881,600 won and damages for delay thereof, and the part on the plaintiff 2, 68,381,600 won and damages for delay thereof shall be reversed, and the case shall be remanded to the Seoul High Court.

The grounds of appeal are examined.

1. The defect in the installation or preservation of a structure under Article 758(1) of the Civil Act refers to a state in which a structure does not have safety ordinarily in accordance with its purpose of use. In determining whether such safety has been met, it shall be determined on the basis of whether the installer or the keeper of the structure has fulfilled his/her duty to take protective measures to the extent generally required by social norms in proportion to the risk of the structure (see, e.g., Supreme Court Decision 2008Da61615, Feb. 11, 2010). Further, an accident due to a defect in the installation or preservation of a structure does not mean that only the defect in the installation or preservation of the structure causes damage, unless the defect in the installation or preservation of the structure occurs in concurrence with the act of another party or the act of a victim, the damage shall be deemed to have occurred due to the defect in the installation or preservation of the structure (see, e.g., Supreme Court Decision 2007Da1039, Jun. 28, 2007).

2. According to the reasoning of the judgment below, the court below rejected the plaintiffs' primary assertion that the non-party (hereinafter "the deceased"), who is the plaintiffs, was diagnosed by the defendant corporation at the Youngdong University University Hospital Schina Hospital (hereinafter "the defendant hospital"), the contents of hospitalization, the treatment process of the deceased, changes in symptoms, and consultation on discharge between the deceased, the actions of the deceased at that time, the actions of the deceased, and the site conditions at the time of the deceased's death on the rooftop of the defendant hospital (hereinafter "the rooftop of this case"), and it is difficult to view that the medical staff of the defendant hospital could have predicted the deceased's suicide on the grounds of the deceased's death and the defendant's breach of the defendant's duty to take preventive measures against the death and the defendant's violation of the duty of care to take preventive measures against the death of the deceased. Accordingly, the plaintiffs' primary assertion that the deceased died due to the defect in the construction and preservation of the rooftop of this case, cannot be seen as a defect in the installation and preservation of the rooftop of this case.

3. However, the part of the lower court’s determination on the defects in the installation or preservation of the rooftop of this case is difficult to accept for the following reasons.

According to the facts established by the court below and the court of first instance, in the ward-dong where the rooftop of this case is installed, it is located in the sixth floor of the building of the eighth floor and the hospital room hospitalized by the deceased was relatively easy for the patient to enter the rooftop. The rooftop of this case is used for the purpose of escape and fire prevention, but it is recognized that the number of people entering the ward of this case including inpatients can make use of the ward as a resting place (as seen next, the stick-out part installed by the rail of this case seems to have functioned as a seat to take rest) The height of the rail installed on the rooftop of this case is the relation with the floor of 115cm from the floor of this case with a width of 30cm from the floor of the rooftop to the highest height of the 48cm from the upper part of the building of this case, and it is not possible for the passenger to stick out to the front door of this case to the extent that it can not be seen that there is a separate height of the roof-type rail of this case to the front door of this case.

As can be seen, the rooftop of this case is clear that a patient who does not have mental and physical health conditions identical with the general public, or a mental and patient who lacks mental or cognitive ability to make judgment (in the case of a mental health examination admitted to the deceased Hospital, the mental health examination of the deceased hospital is closely interpersonal relationship with emulsion caused by duress and emulsion because of emulsion, social activities themselves do not occur, and it was diagnosed as emulsion and emulation disorder). In light of the location environment of the rooftop of this case, especially the structure, shape, and size of the rail protruding, among the users, such as patients with mental and physical health conditions, etc., of the rooftop of this case, it cannot be said that the defendant hospital could not at all expect that the death of the deceased was caused by emulsion or any other shock motive, and even if it did not have any duty to take measures such as restricting the death of the deceased as stated in the judgment below, it cannot be said that there was a high probability that the causes for the death of the deceased cannot be seen as the reason of the death of this case.

Therefore, the court below concluded that the defendant, who is the installer or manager of the structure, cannot be exempted from the liability for damages for the death of the deceased due to the defect in the construction or preservation of the rooftop of this case. In so doing, the court below erred by misapprehending the legal principles on defects in the construction or preservation of the structure, which affected the conclusion of the judgment, and the ground of appeal pointing this out has merit. Therefore, the judgment of the court below cannot be reversed. However, since the plaintiffs filed an appeal with the purport of the appeal, only part of the claim amount of this case shall be limited to the purport of the appeal of this case.

4. Therefore, among the judgment of the court below, the part concerning the plaintiff 1's 69,881,600 won and its delay damages as to the plaintiff 2, and the part concerning the plaintiff 2's 68,381,600 won and its delay damages are all reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)