2013 Doz. 205710 Damage, Claim

1. Analo;

2. Stambling00

Plaintiff 1 and 2’s address, Daegu Dong-gu ○ 6-10

3. Stambed ○.

Daejeon Sung-gu ○ 448 107 Dong 907

4. Stambed ○.

Daegu Dong-gu ○○ 12-ro 3-6

[Judgment of the court below]

△-gu Seoul Metropolitan City Dong-gu

The representative of the Gu O

Attorney Kang Han-hoon, Counsel for the defendant-appellant

May 13, 2014

June 19, 2014

1. The Defendant shall pay to the Plaintiff Ansan-○, the amount of KRW 13,810,03, the amount of KRW 7,273,355 per annum from March 19, 2013 to June 19, 2014, and the amount of KRW 20 per annum from the next day to the date of full payment.

2. The plaintiffs' remaining claims are dismissed.

3. Of the costs of lawsuit, 70% is assessed against the Plaintiffs, and the remainder is assessed against the Defendant.

4. Paragraph 1 can be provisionally executed.

The Defendant shall pay to the Plaintiff ○○○, respectively, 74,925,630 won, and 39,617,086 won, respectively, and 5% per annum from March 19, 2013 to the date of the instant judgment and 20% per annum from the next day to the date of full payment.

1. Basic facts

A. On March 19, 2013, the ○○○○○○○ (hereinafter referred to as “the deceased”), which was scambling at the ○○ Park (hereinafter referred to as “the instant park”) established in the ○○○○ Park in Daegu-gu, Daegu-dong (hereinafter referred to as “the instant park”) around 06:30, was killed by the apparatus, which was scamd from the apparatus while making scams at the anti-cam type scambling and falling down, resulting in an injury, such as scambling and scambling damage (hereinafter referred to as “the instant accident”).

B. On August 17, 2013, the Deceased was killed due to the pulmonary mar, pulmonary mar, and a new mar, etc. around August 2015, while hospitalized in the Central Patients' Office in the Daegu-gu New Cancer 4-dong, Daegu-gu.

C. The Plaintiff’s ○○ is the deceased’s spouse, and the Plaintiff’s Gao, Plaintiff’s Gao, and Plaintiff’s Gao are the deceased’s children.

D. Meanwhile, at the time of the instant accident, the Defendant was the person establishing and managing the instant sports organization at the time of the instant accident. [Grounds for recognition] There is no dispute, Gap evidence Nos. 1 through 7, and 13 (including serial numbers; hereinafter the same shall apply), Eul evidence Nos. 1 and 2, and the purport of the entire pleadings and arguments.

2. The parties' assertion

A. The plaintiffs' assertion

Since the instant sports organization is a highly likely to dissatisfy in the course of the instant sports organization by using it, there was a defect in which safety devices for the prevention of accidents are installed and the users can safely use the instant sports organization by posting notice, etc. stating the method of use and precautions. However, the instant sports organization did not have such safety measures at all.

Therefore, the defendant should compensate the deceased and the plaintiffs for damages caused by the accident of this case as a managing body of the establishment of the sports organization of this case.

B. Defendant’s assertion

The instant sports organization is a sports organization that is widely established in Daegu Metropolitan City and widely used by many citizens, and there is no defect in its own.The instant accident occurred by the elderly deceased's use of the instant sports organization due to the careless use of the sports organization. Therefore, the Defendant is not liable for damages arising from the instant accident.

Even if the defendant's liability for damages is recognized, the deceased's negligence should be considered to a considerable extent in calculating the amount of damages.

3. Occurrence of liability for damages;

(a) Relevant legal principles;

The defect in the construction or management of a public structure under Article 5 (1) of the State Compensation Act refers to a state in which the public structure is not equipped with safety ordinarily required in accordance with its use. However, the defect in the construction or management of the public structure can not be considered as a complete condition and there is a defect in its function. In determining whether the construction or management of the public structure is equipped with safety above, the standard should be determined in full consideration of all the circumstances such as the purpose of use of the public structure in question and the situation of the place of installation and the situation of the use thereof, and whether the construction or management has fulfilled the duty to take protective measures to the extent generally required by social norms in proportion to the danger of the public structure. If, from an objective point of view, there is no possibility and possibility of a loss occurrence due to the defect in the construction or management of the public structure in a situation under which the construction or management of the public structure could not affect the construction or management of the public structure (see, e.g., Supreme Court Decisions 203Da68278, Jun. 111, 2004).

(b) Fact of recognition;

The following facts are acknowledged according to Gap evidence 14, Eul evidence 1 to 4, and the purport of the whole testimony and pleading of witness abnormal paths:

① The instant sports organization is comprised of a central pole connected to the ground, a knife knife, which is located on the top, and metal knife (hereinafter referred to as “kife”) installed on the edge of the half-way lelele, the end of the half-way lele, and the center part of the center (hereinafter referred to as “total size”: 1200 meters x 600 meters x 100 meters x 60.5 meters x knife : 60.5 meters) connected to the ground, as seen in the annex 1’s photo. (2) The instant sports organization is used as a knife and knife knife knife knife knife and knife knife knife knife knife knife knife knife in the front.

③ On March 19, 2013, around 06:30, at the time of the instant accident, neighboring residents, who had been engaged in a Abrupt movement with the deceased in the instant park, were present at the time of the occurrence of the instant accident, and were present during the process in which the deceased used the instant sports organization by the general method, fell from his head, and was faced with serious injuries, and reported immediately on 119, so that the deceased transferred to the hospital.

④ From among the instant sports organizations, the users’ expectations, such as the instant sports organizations, are merely macks or booms of adult south, and thus, if users come to fall behind the body in general use, then the instant sports organization is likely to fall behind the instant sports organization, if users come to fall down with the body by means of general use. Therefore, the instant sports organization in itself is likely to have a fall accident like the instant sports organization. Furthermore, unlike other sports organizations, if the instant sports organization is used in accordance with general use methods, it falls first from the user’s head part, and thus, is highly likely to suffer death or serious injury. In particular, the instant sports organization was installed in the form of the instant sports organization to prevent the users from falling into the shape of the instant sports organization and the instant sports organization from falling into the shape of the devices, such as the instant sports organization, and the instant sports organization was installed to prevent the users from falling into the shape of the devices, such as the instant vehicle from falling into a relatively large extent, depending on the possibility of falling.

(6) In addition, at the time of the occurrence of the instant accident, a notice on major functions, methods of use, and cautions is attached to the center pole of the instant sports organization near the ground. However, considering the size of letters written in the entire and the location of the notice, it is very difficult for ordinary users to recognize the existence and content of the notice.

7. Among the above notices, the method of use is stated as follows: "The two descendants expected to return back to the device and take a rail and milch"; "patients or swelves may not use the device without being accompanied by swelves, and children under the age of 14 years can not use the device without being accompanied by swelves, with the consent of the doctor or family members." There is no information related to the safe method of use (for accurate users, appropriate distance with the apparatus, and importance of loss) of the instant sports organization or the warning of the risk of a fall accident.

After the instant accident, the Defendant removed the instant sports equipment on May 11, 2013, and installed a substitute for handbags, a new sports equipment, in lieu of handbags. In addition, the Defendant separately installed a notice stating the method of use, caution, risk of safety accidents, etc. of the said handbags.

C. Determination

Examining the above facts in light of the legal principles as seen earlier, the Defendant, who is the installer and manager of the instant sports organization, has a duty of care to install safety measures (e.g., fixed devices, shocking devices, anti-slock prevention devices, etc.) to minimize the risk and degree of injury even if he/she uses the instant sports organization in a large number of unreasonable manner, to ensure that residents can easily recognize the use method, signs, etc. of the instant sports organization, etc., and to allow residents to use the instant sports organization in a safe manner. In particular, in the case of the instant park, there are many middle and old age groups vulnerable to the injury.

However, as the Defendant neglected the above duty to take protective measures, there was a defect in the installation and management of the instant sports organization in which such measures have not been properly equipped. It is reasonable to deem that the Defendant is liable to compensate the deceased and the plaintiffs for the damages caused by the defect in the establishment and management of the instant sports organization.

4. Scope of liability for damages

In addition to the following separate statements, each item of the attached Table 2 of the computation of damages amount: Provided, That less than a month for the convenience of calculation shall be inserted into the side on which the appraised value is low, and less than the last month and less than a won shall be discarded, respectively, and the calculation of the present price at the time of the accident of the accident of this case shall be based on the simple discount method which deducts the interim interest at the rate of 5/12 per month.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 8, 9, and 10, and the purport of the whole pleadings

1) The plaintiffs' assertion

While the Deceased left 63 years of age and 10 months at the time of the occurrence of the instant accident, he/she worked in the Gan Steel Company, which is a high-railroad retail company run by Kimdo, for about 30 years from the date of the instant accident, over 60 years of age, the general maximum working age, and received KRW 2,700,000 in monthly pay. Accordingly, the Defendant shall compensate the Plaintiffs for the actual monthly pay for the said monthly pay for at least 3 years from the date of the instant accident.

2) Relevant legal principles

The maximum working age shall be determined by taking into account all the circumstances, such as the average remaining life expectancy, economic level, employment rate, or labor participation rate by age, working conditions by occupation, and retirement age limit, in addition to economic conditions of the people, and the victim’s age, career, occupation, health conditions, and other various circumstances. In the case of a general health person, it is recognized in light of the empirical rule that a person may be engaged in urban daily work or rural daily work until he/she reaches the age 60, barring any special circumstances. Even after the expiration of the working period, if a victim gets income by engaging in certain labor at the time of tort, it shall be deemed that he/she had been able to obtain income by engaging in the same occupation for two to three years from the date of the accident, considering the age, occupation, etc.

3) Determination

According to the statements in Gap evidence Nos. 8 and 9, the deceased reported the wage and salary income that he received from Hoil Steel Co., Ltd. (business operator No. 504-10-0467) to the Northern Tax Office in 201 and 20,400,000 won in each year of 2011 and 20,400,000 won in each year of 2012, and the deceased received 2,700,000 won in each of the accounts of the deceased’s community credit cooperatives (business operator No. 504-100-3732-5) from Kim○ on December 31, 2012, and February 28, 2013.

Under the facts and the above facts, the deceased had already passed 60 years of age, which is the maximum working age based on the empirical rule, at the time of the instant accident (the 63 years of age and 21 October), and it is reasonable to deem that the deceased reported annual earned income in 201 and 20,400,000 won and was engaged in certain labor and earned income beyond the above 60 years of age.

Therefore, considering the above circumstances, general health conditions, average maximum working age, etc. of the deceased, the average monthly income of the deceased at the time of the instant accident (i.e., 20,400,000 won: 12 months) shall be recognized respectively until April 25, 2015, when 65 years old (the Plaintiff asserted that monthly income of the deceased was KRW 2,70,000 at the time of the instant accident). However, the Plaintiff asserted that the monthly income of the deceased was KRW 2,700,000 as at the time of the instant accident. However, in light of the above fact that the Plaintiff received KRW 2,70,000 from Kim○○○ for three times, it is insufficient to view it as an average monthly income that is the basis for calculating actual income, and there is no other evidence to recognize it differently).

(iv) the basis for calculation;

A) Gender and date of birth: male, April 26, 1949.

B. Monthly income: 1,700,000 won above;

C) Operating Period: From March 19, 2013 (the date of the occurrence of the instant accident) to April 25, 2015 (from March 19, 2013 to April 25, 2015): 1/3 of the deceased’s revenues.

5) Amount of lost earnings: 26,89,326 won (=monthly income of KRW 1,700,000 X 23.7347 x 2/3). (b) Medical expenses: 18,867,680 won

(c) Nursing expenses;

The Plaintiffs asserted that the deceased was opened for the period of 150 days from March 19, 2013, which was the date of the instant accident, from August 17, 2013, which was the date of death, to August 17, 2013, and sought the payment of nursing expenses. However, the fact that the deceased was hospitalized in a middle-patient hospital does not conflict between the parties, and that the nurse was provided with nursing services during the period of hospitalization in a middle-patient hospital, so the nursing expenses cannot be recognized (see Supreme Court Decision 87Meu1032, Nov. 8, 1998). The Plaintiffs’ above assertion is without merit. D. Funeral expenses: The Plaintiff Ansan○○○3,00,000 won.

E. Limitation of liability

1) Grounds for limitation of liability

Considering the following circumstances and all the circumstances shown in the argument of this case, it is reasonable to limit the defendant's liability ratio to 30%.

① In the form and structure of the instant sports organization, the possibility of a fall accident like the instant sports organization is high, and where the instructions, etc. on the method of use, cautions, etc. are not posted to the instant sports organization, the users should use the said organization within the extent they consider safe by giving separate attention to the users. ② The Deceased could have prevented or reduced the occurrence of the instant sports organization by self-regulation, taking into account his age and health conditions; ③ the instant accident was occurred under the autonomous judgment of the Deceased; ③ the use of the instant sports organization was under the use of the instant sports organization; and ④ the use of the deceased’s care for the use of the 4th sports organization is also an important factor for the occurrence of damages caused to the death of the Deceased.

(ii)Calculation;

(a) Property damage of the deceased: 13,730,101 won [(26,89,326 won from lost income + (18,867,680 won from lost income + 0.3];

B) Property damage (Funeral expenses): KRW 900,000 (=3,000,000 x 0.3) of the Plaintiff’s property damage (Funeral expenses).

1) Reasons for consideration: The deceased’s age, the details and result of the instant accident, the personal relationship between the deceased and the plaintiffs, and all other circumstances revealed in the instant argument;

(ii) the amount determined;

A) Deceased: 10,000,000 won

B) Plaintiff ○○: 5,000,000 won

C) Gab○○, Plaintiff Park ○, Plaintiff Park ○, and Plaintiff Park ○: KRW 2,000,000 respectively.

(g) Inheritance relationship;

1) Amount subject to inheritance: 23,730,101 won (=13,730,101 won for the deceased’s property damage + 10,000 won for consolation money of the deceased + 10,000 won for consolation money of the deceased)

(ii)shares and amounts of inheritance;

A) Plaintiff Ansan○○○ (3/9 shares): KRW 7,910,033 (i.e., KRW 23,730,101 x 3/9 x 3/9 b) Plaintiff Park○-○, Plaintiff Park○, and Plaintiff Park Jong-○ (each of 2/9 shares): KRW 5,273,355 each (=23,730,101 won2/9)

H. Sub-committee

Therefore, the Defendant: (i) KRW 13,810,033 (= Funeral expenses KRW 900,00 + solatium + KRW 5,000,00 + inheritance amount + KRW 7,910,033); (ii) KRW 7,273,355, respectively, to the Plaintiff Gamb○○, Plaintiff Gamb○, and Plaintiff Gb○○; (iii) + inheritance amount + KRW 2,000,000 + each of the above materials + KRW 5,273,355, respectively); and (iv) as to whether or not the Defendant’s obligation exists or not from March 19, 2013, which is the date of the instant accident, to the extent that it is deemed reasonable for the Defendant to dispute on whether or not the obligation to perform is met; (v) the amount calculated annually by the Civil Act until June 19, 2014; and (v) the next day from the day to the day of full payment to the day of the payment.

5. Conclusion

Therefore, the plaintiffs' claims of this case are accepted within the above scope of recognition, and the remaining claims of the plaintiffs are dismissed as they are without merit. It is so decided as per Disposition.

Judges of the presiding judge;

Judges Lee Jong-soo

Judges Oo-crimes