Plaintiff 1 and three others (Law Firm Sejongdong, Attorneys Yu Jin-ia et al., Counsel for the plaintiff-appellant)

Seongbuk-gu Seoul Metropolitan Government Urban Management Corporation (Attorney Cho Jong-tae, Counsel for the defendant-appellant)

December 9, 2016

Seoul Eastern District Court Decision 2013Gahap18859 Decided July 23, 2015

1. The plaintiffs' appeal and the selective claims added by this court are all dismissed.

2. The costs of the lawsuit after the appeal are assessed against the plaintiffs.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 4 the amount of KRW 322,81,200, KRW 1,000, KRW 3,000, KRW 200 each year from July 16, 2013 to the date the judgment of the first instance is rendered, and the amount of KRW 20% each year from the next day to the date of full payment (the plaintiff is the cause of the claim of this case, and the plaintiff is claiming the tort liability under Article 750 of the Civil Act or the user liability under Article 756 of the Civil Act, and the court selected the defect liability for the installation and maintenance of structures under Article 758 of the Civil Act).

1. cite the reasoning of the first instance judgment;

This court's judgment is cited by the main sentence of Article 420 of the Civil Procedure Act, as the following grounds are the same as the grounds of the first instance judgment.

2. Parts in height:

▣ 제1심판결문 제5쪽 아래에서 2행 내지 3행의 ‘원고 4의 기왕치료비 27,784,774원, 향후치료비 101,274,712원’을 ‘원고 4의 기왕치료비 주1) 43,616,080원, 향후치료비 85,443,406원’으로 고침(원고 4의 기존 기왕치료비를 15,831,306원 증액하고 그 금액만큼 기존 향후치료비에서 감액함)

▣ 제1심판결문 제7쪽 아래에서 5행 ‘제21호증’ 다음에 ‘제24, 25호증’을 추가하고, 제8쪽 아래에서 5행 내지 6행의 ‘그들도 2015. 6. 4. 무죄판결을 선고받은 점’ 부분을 ‘그들도 2015. 6. 4. 무죄판결을 선고받았으며, 검사의 항소 및 상고가 모두 기각되어 그 판결이 확정된 점’으로 고침

3. The addition;

A. As to the claim for damages caused by the Defendant’s breach of safety management obligations

1) The Plaintiffs did not have a sign indicating children’s pool and adult pool on the instant swimming pool in this court. The Plaintiffs asserted to the effect that Plaintiff 4’s water-related accidents (hereinafter “instant accident”) occurred due to the lack of “children’s entry prohibition sign” on the adult swimming pool of the instant swimming pool, along with the remaining circumstances alleged in the first instance court, constitute tort under Article 750 of the Civil Act due to Defendant’s breach of safety management obligation.

2) However, in light of the following circumstances, which can be seen in full view of the overall purport of the arguments as a result of the party’s personal examination conducted in this court, with respect to the Plaintiffs 3 and 4, the following circumstances are insufficient to recognize that the Defendant failed to perform its duty of safety management necessary for the swimming pool of this case or caused the instant accident, and there is no other evidence to acknowledge it. Accordingly, the Plaintiffs’ assertion on this part cannot be accepted.

① A half of the swimming pool in this case (i.e., 42m x 21m) is for children of 0.8m in depth. A half is for adults of 1.2m in depth, which is divided into OSF that leaves the water surface. In order to indicate the depth of the swimming pool, “0.8m” and “1.2m” are indicated in the body part of the body part of the swimming pool for children, to indicate the depth of the swimming pool for children.

② 각 풀 앞에는 130cm 높이의 ‘키 재기 판’이 하나씩 세워져 있어 키가 130㎝ 미만인 어린이의 경우 보호자와 함께 입수하지 않는 한 성인용 풀에 들어갈 수 없도록 하였다(원고 3은 이 법원에서 이루어진 당사자 본인신문에서 당시 키 재기 판을 사용해 키를 쟀었다고 진술하였다).

③ The Defendant set up a sign of safety rules, such as the entrance of the swimming pool in the instant case, and displayed the depth of the swimming pool (No. 0.7 m. to 1.2m).

④ After an information broadcast informing that break time is 45 to 50 minutes each hour, the Defendant set out all users out of the swimming line. After an information broadcast of 1-2/1 to 1/2 of the safety personnel at each hour, the Defendant made users obtain it from the swimming line. The broadcast contains the content that “Is the prime time by ensuring that the thickness of the parents accompanied by infants below elementary school, and children is not able to do so by preventing her from being mixed.”

⑤ The Plaintiff 4 stated in the Party’s Party’s Party’s newspaper that the instant search warrant was entered in the form of a swimming pool even before the instant accident occurred, and that there was an entry of a swimming pool from an adult swimming pool by suffering life jackets, it appears that the Plaintiff 4 could have been in depth more than her key in the case of an adult swimming.

B. As to the claim for damages due to defects in the installation and preservation of structures (the selective claim added by this court)

1) The plaintiffs' assertion

The plaintiffs claim that the defendant is liable for damages under Article 758 of the Civil Code since there are defects in the installation and preservation of the swimming pool of this case and the accident of this case occurred.

A) There was no “children’s sign prohibiting entry of children” on the adult pool of the instant swimming pool.

B) It was installed in the same swimming without separately installing a pool for children and a pool for adults.

C) While installing a swimming pool for children and adult pool in the same swimming section, there was no adequate safety facilities to prevent the children from easily passing out or flowing out from the pool for children or from getting out of the said slope, by distinguishing the pool for adults from the adult pool in the above course of the water surface and the pool for children into the same course of the water surface, which was located only on the slope of about five meters in length toward the adult pool near the boundary point, and there was no adequate safety facilities to prevent the children from getting out of the pool for children.

D) According to the Enforcement Rule of the Act on the Installation and Utilization of Sports Facilities (Attachment 4), the depth of the water for adults shall be not less than 0.9m but not more than 2.7m, and the depth of the water shall be displayed on the wall surface of the swimming tank. The swimming pool of this case violates the above depth standards by keeping the swimming pool for adults (1.2m) and the swimming pool for children (0.8m) together with the swimming pool for children in the same swimming tank. The swimming pool of this case did not indicate the water depth on the wall of the swimming tank.

2) Determination

A) Relevant legal principles

The defect in the installation and preservation of a structure under Article 758(1) of the Civil Act refers to a state in which a structure fails to meet safety requirements ordinarily for its use. In determining whether such safety requirements are met, it shall be determined on the basis of whether the installer and custodian of the structure has fulfilled the duty to take protective measures to the extent generally required by social norms in proportion to the risk of the structure (see Supreme Court Decision 2013Da1921, May 23, 2013).

B) Determination on individual arguments

(1) As to paragraph (1)(A)

Although the "children's entry prohibition sign" was not installed in front of the adult swimming of the swimming pool of this case, as seen in the above 3. A. 2, it is difficult to see that the swimming pool of this case was not equipped with safety ordinarily in accordance with social norms, and to recognize that the accident of this case occurred as a result, in light of the fact that various measures that can have a similar effect as seen in the above 3. A. 2) have been taken (i.e., gender grass and children's grass are divided into courses, and the depth was marked at the bottom of the swimming pool, and the safety rules sign was also three, and the swimming signboard was placed at a height of 130 cm above the swimming, and thus, the swimming pool of this case was not equipped with safety ordinarily in accordance with social norms.

(2) As to paragraph (1)(b) above

The difference between the height of the children’s pool (80cm) and the adult pool (120cm) of this case is not the big difference to the extent of 40 cm, and there is no relevant provision that the adult pool and the pool for children must be physically divided and installed. In light of the fact that there is no provision that there is no separate installation, it cannot be deemed that there is a defect in the installation and preservation of the swimming pool of this case.

(3) As to paragraph (1)(c) above

This part of the allegation was based on the premise that Plaintiff 4 had originally obtained a pool for children and that the instant accident occurred due to the entry of the pool for children. The evidence submitted by the Plaintiffs, such as the result of the party principal examination, etc. to Plaintiff 3 conducted in this court is insufficient to acknowledge it, and there is no other evidence to acknowledge it [it is difficult to find out the specific time of Plaintiff 4’s accurate acquisition time, the place originally obtained, such as whether the Plaintiff 4 was a pool for children, whether it was a pool for adults, and whether it was used for tubes, and the circumstances of the accident, etc., however, ① the point that the Plaintiff 4 lost consciousness, and the point that was discovered in the state of the public announcement for children, was about 14.5 meters from the boundary of the pool for children and the pool for adults, which was about 14.5 meters from the original point of view of the fact that Plaintiff 2 had already been obtained from the point of view of the safety of the Plaintiff’s sex pool for children (the total pool for adults 21m x 210: 7: 16: 16.

Therefore, the plaintiffs' assertion should not be examined on different premise as to whether the alleged safety facilities are not installed or not in the installation or preservation of the swimming pool in this case.

(4) As to paragraph (1)-D above

As seen earlier, the swimming pool of this case is not installed as pure adult swimming, but installed in the same swimming pool, and it does not constitute a child pool under the Enforcement Rule of the Sports Facilities Installation and Utilization Act [Attachment 4], and there is no provision prohibiting the installation of a child pool and a child pool in the same swimming pool. In light of the fact that the swimming pool of this case was installed as an adult swimming, it cannot be deemed that there is a defect in the installation and preservation of a violation of the above standards in the swimming pool of this case, solely on the basis that the swimming pool of this case was installed as an adult swimming, and there is no provision prohibiting the installation of a child pool and a child pool in the same swimming.

In addition, even if the wall of this case did not indicate a water depth on the wall of this case, it is difficult to view that there is a proximate causal relation between the occurrence of the accident of this case and the occurrence of the accident of this case in this case where the place originally obtained by Plaintiff 4 is a child pool, whether it is an adult pool, whether it is obtained by Plaintiff 4, and whether it is a water depth mark on the wall of this case.

C) Sub-determination

Therefore, we cannot accept all the plaintiffs' assertion that the defendant is liable for damages under Article 758 of the Civil Code.

4. Conclusion

The judgment of the first instance is justifiable. The plaintiffs' appeal and the selective claims added by this court are dismissed in entirety as they are groundless.

Judges Maximum Pung (Presiding Judge)

(1) The Plaintiffs’ written application for change of the cause of the claim on December 1, 2016 stated KRW 43,616,018, but appears to be a clerical error.

Note 2) Although it appears as a clerical error of 0.8m, it is difficult to deem that the Defendant neglected the duty of safety management solely on the ground that there is a clerical error.

3) As to this, the Plaintiffs asserted to the effect that if Plaintiff 4 obtained the original adult pool, it should be acknowledged that the Defendant did not restrain it and neglected it. However, the instant swimming pool is a facility that allows users to freely enjoy swimming and water play at a relatively low fee, and it is difficult to view that the Defendant, as stated in the judgment of the first instance, is obliged to confirm and protect all users as to whether they abide by the safety rules, beyond having the Defendant posted guidance broadcasting and sign installation, etc. for the prevention of accidents and posting an adequate number of safety personnel.