[edit] Supreme Court Decision 99Da54998 delivered on April 25, 2000 [Damages(Motor Vehicle)]
【Main Issues】
[1]The meaning of "defective construction or management of public structure" referred to in Paragraph 1 of Article 5 of the State Compensation Act and the degree of responsibility imposed on the constructor or manager to implement protective measures
[2]The standard applicable in determining defects in construction or management of public road; whether a constructor or manager of the road has an obligation to secure safety by immediately eliminating traffic risks incurred by heavy snowstorm on a regular road which is not in the snow zone and not for a special purpose such as a highway
[3]Considering the characteristics of the snow meteorological and geographical features, and consequent relative safety of the road, defects in the road management could not be found merely based on the facts that the ice on the road located in the mountain area was left unattended and that there was no warning or danger sign on the road.
【Summary of Decision】
[1] Defective construction or management of public structure' specified in Paragraph 1 of Article 5 of the State Compensation Act refers to the circumstance where a pubic structure, which is built for the public purpose, fails to provide a safe condition customarily required in its usage. Even when the construction or management of public structure is not highly safe to the degree where a perfect state is always maintained, it is difficult to deem it as a defect in construction or management of public structure. The level of responsibility to provide a protective measure imposed on the constructor or manager of public structure is what is customarily requested by the society in proportion to the level of danger posed by the public structure. In case of a road that is a public structure, a relatively safe condition thereof that expects the users to be rational and orderly, also in consideration of the relationship of the road to other necessary facilities or the financial, personnel and resource restrictions of the party constructing and managing the road, shall be deemed to be sufficient.
[2] Defective construction or management of the road should be specifically determined in accordance with the social customs by comprehensively considering various matters such as the road usage condition including location and structure of the road, traffic volume and traffic condition at the time of accident, the original usage purpose, and the location and shape of the physical defect. Especially, heavy snow is one of the natural phenomena, which is difficult to forecast its degree or duration of danger to the traffic safety, and in general temporarily appears over a broad area and disappears after a certain lapse of time. In light of the present scientific technology or financial situation, it is impossible in reality to equip a road itself with a snow-melting facility which would be a perfect solution to cope with traffic dangers resulting from the snow. Instead, it is inevitable to take a possible measure such as manually removing the snow or treating the road with chemicals. Even in that situation, it is inappropriate to require a road manager to restore safety by immediately eliminating traffic risks not only on the roads within the snowdrift zone or special purpose roads such as highways with a minimum speed restriction but also on the regular roads by maintaining perfect personnel and physical resources and by immediately removing the snow. Rather, in such a case, traffic safety should be acquired by individual users who are using the road in the face of such risks.
[3] Considering the characteristics of the snow, meteorological and geographical features, and consequent relative safety of the road, defects in the road management could not be found based merely on the facts that the ice on the road located in the mountain area was left unattended and that there was no warning or danger sign on the road.
【Reference Provisions】 [1] Paragraph 1 of Article 5 of the State Compensation Act, Article 758 of the Civil Code / [2] Paragraph 1 of Article 5 of the State Compensation Act, Article 758 of the Civil Code / [3] Paragraph 1 of Article 5 of the State Compensation Act, Article 758 of the Civil Code
Article 5 of the State Compensation Act (Liability for Damage Caused by Defects in Public Structures, etc.) (1) In the event any damage has been inflicted on another person due to defective construction or management of the road, the river or any other public structures, the State or local governments shall redress such damage. The provisions of the proviso of Article 2(1) and Articles 3 and 3-2 shall apply mutatis mutandis to this case.
Article 758 of the Civil Code (Liability of Possessor or Owner of Structure, etc.). (1) If any damage has been caused to another person by reason of any defect in the construction or maintenance of a structure, the person in possession of the structure shall be liable for such damage; provided, that if the person in possession has exercised due care in order to prevent the occurrence of such damage, compensation for the damage shall be made by the owner.
(2) The provisions of paragraph (1) shall apply mutatis mutandis where there exists any defect in the planting or maintenance of trees.
(3) In cases of paragraphs (1) and (2), the possessor or the owner may exercise the right to obtain reimbursement from the person to whom the damage is attributable.
【Reference Cases】 [1] Supreme Court Decision 91Da37652 delivered on April 24, 1992 (Gong1992, 1678), Supreme Court Decision 94Da16328 delivered on October 28, 1994 (Gong1994Ha, 3112), Supreme Court Decision 98Da17381 delivered on October 23, 1998 (Gong1998Ha, 2728), Supreme Court Decision 99Da24201 delivered on January 14, 2000 (Gong2000Sang, 376), Supreme Court Decision 99Da54004 delivered on February 25, 2000 (Gong2000Sang, 830) / [2] Supreme Court Decision 97Da32536 delivered on February 10, 1998 (Gong1998Sang, 681), Supreme Court Decision 99Da12796 delivered on July 9, 1999 (Gong1999Ha, 1604), Supreme Court Decision 99Da45413 delivered on December 24, 1999 (Gong2000Sang, 306)
【Plaintiff, Appellee】 Sun Sung-duk and 2 others (Attorney Kim Ki-seok, Counsel for plaintiffs-appellees)
【Defendant, Appellant】 The Republic of Korea
【Judgment of the Court below】 Seoul District Court Judgment 99Na28653 delivered on September 2, 1999
【Disposition】 The part of the judgment of the court below that ruled against the defendant-appellant shall be reversed and the relevant part of the case shall be remanded to the Appellate Division of Seoul District Court.
【Reasoning】 The grounds for appeal are examined as follows.
1. The judgment of the court below
Pursuant to the reasoning of the court below, the court below, by citing the reasoning of the court of first instance, found that: from the standpoint of the driver of the vehicle that was involved in the accident, the road prior to the point of accident was straight with a normal surface condition, however, near the point of accident, the road suddenly changed to the steep curves with thick ice on the surface for a stretch of over 100 meters; the accident point was shady due to the geographical situation and the road was often covered with ice even in midday during winter, which, coupled with the fact that the accident point was where the road became curved to the right, made it plainly foreseeable that a passing vehicle would skid on the suddenly appearing ice as it would attempt to decelerate because of the above conditions, the accident point was quite dangerous to those people who were not familiar with the geography of the area or the road condition; yet, at the time of the accident, the road was neglected without timely ice-removal operation and there was no warning or danger sign signaling such road conditions. Then, the court below concluded that the defendant who was the manager of the subject national road was liable to compensate for damage resulted from the said traffic accident which originated from the defective management of the said national road, since the national road at the time of the accident failed to provide safety customarily expected from such road.
2. The Judgment of Supreme Court
However, we do not agree to the above part of the judgment of the court below in light of the following:
A. 'Defective construction or management of public structure' specified in Paragraph 1 of Article 5 of the State Compensation Act refers to the circumstance where a pubic structure, which is built for the public purpose, fails to provide a safe condition customarily required in its usage. Even when the construction or management of public structure is not highly safe to the degree where a perfect state is always maintained, it is difficult to deem it as a defect in construction or management of public structure. The level of responsibility to provide a protective measure imposed on the constructor or manager of public structure is what is customarily requested by the society in proportion to the level of danger posed by the public structure. (See Supreme Court Decision 94Da16328 delivered on October 28, 1994, Supreme Court Decision 98Da17381 delivered on October 23, 1998, etc.) In case of a road which is a public structure , a relatively safe condition that expects users to be rational and orderly, also in consideration of the relationship of the road to other necessary facilities or the financial, personnel and resource restrictions of the party constructing and managing the road, shall be deemed to be sufficient.
B. Especially, heavy snow is one of the natural phenomena, which is difficult to forecast its degree or duration of danger to the traffic safety, and in general temporarily appears over a broad area and disappears after a certain lapse of time. In light of the present scientific technology or financial situation, it is impossible in reality to equip a road itself with a snow-melting facility which should be a perfect solution to cope with traffic dangers resulting from the snow. Instead, it is inevitable to take a possible measure such as manually removing the snow or treating the road with chemicals. Even in that situation, it is inappropriate to require a road manager to restore safety by immediately eliminating traffic risks not only on the roads within the snowdrift zone or special purpose roads such as highways with a minimum speed restriction but also on the regular roads by maintaining perfect personnel and physical resources and by immediately removing the snow. Rather, in such a case, traffic safety should be acquired by individual users who are using the road in the face of such risks.
C. In addition, any defective construction or management of the road should be specifically determined in accordance with the social customs by comprehensively considering various matters such as the road usage condition including the location and structure of the road, traffic volume and traffic condition at the time of the accident, and the original usage purpose, and the location and shape of the physical defect. (See Supreme Court Decision 97Da49800 delivered on February 13, 1998.)
(1) Based on the records, the following facts can be acknowledged:
(a) Road condition and geographical condition
Road encompassing the point of accident was Number 38 national road stretched between Youngwol and Jungsun. Located at the inland of a mountain, the road was 9.6 meters in width, had four lanes, and was paved with asphalt with a center divider. From the direction that the vehicle involved in the accident was taking, the accident occurred where the straight section of the road ended and the road started to curve to the right. On the left, there was a protective wall above which a railroad operated. On the right, there was a guard rail beyond which was a stream.
The point of the accident was a shady area due to its geography. At the time of the accident, the central divider was almost unnoticeable as it was covered with snow similar to the other areas nearby. Approximately 100 meters of the road to the direction of the car was icy and slippery.
(b) Weather condition
The accident occurred in winter (January 18). As the court of first instance acknowledged, the surface of the edges of the road was covered with snow. Pictures of the accident scene submitted for the trial (Records 54 to 61 pages) demonstrated that the areas surrounding the accident point were covered with snow, although the records did not show exactly when and how much of the snow fell. Still, the weather at the time of the accident was clear.
(c) State of the defendant's road management, Foreseeability, and Possibility to evade the accident
The defendant, through Jungsun National Road Maintenance Construction Office, manages 351 kilometers of the general national road including the road at the point of the accident in this case. Because the road in this jurisdiction is stretched over 16 large hills, it is inevitable to perform a snow or ice removal operation on the higher-risk hilly roads with a higher priority during the snow spell in winter and subsequently attend to the general flat roads. While such assertions could not be confirmed by the records, the defendant argued that the defendant was performing ice removal and other auxiliary operations at the zone of Doge-ub and Youngwol-ub in Samchuk city at the time of the accident (Records 132 page). Still, the defendant did not place a warning or danger sign to signal the icy road and failed to perform the ice removal operation at the point of the accident by the time of the accident.
At the same time, a dump truck driver, Moon Hak-won, a witness to the accident, testified to the police that the area was an accident-prone zone since drivers who were not familiar with the area drove with relative inattention as the road surface prior to the accident point was normal, and would rapidly step on the brake to decelerate when faced with the suddenly appearing icy curve (record page 72). The defendant argued that many other vehicles did not experience difficulties and safely used the road as demonstrated by lack of traffic accident prior and subsequent to the subject accident while the daily traffic volume at the point of the accident was over 4000 vehicles (Records 113 page). While a possible occurrence of accident might be expected at the point of the accident, whether or not traffic accidents other than the accident in dispute occurred at the point of the accident could not be confirmed by the records.
(d) State of the driver's action
The vehicle involved in the accident, which was driven by the deceased Lee Jong-dong, passed a dump truck (license number Seoul 06Na8707) that was running at the speed of 55 km per hour, at around 300 meters prior to the point of the accident. Going towards the point of the accident, the vehicle's rear end started to spin towards the front when the driver attempted to reduce the speed, and slid into the opposite lanes on the road and bumped into the cement protective wall. As it slipped, it collided with a dump truck (license number Chungbuk 06Da5023) that was coming from the opposite direction at the time. In light of the circumstances, it appears that Lee Jong-dong caused the accident by carelessly speeding rather than driving safely and being attentive to the road situation.
(2) Determination on the alleged failure in the maintenance of the road
Considering the characteristics of the snow as previously stated, the meteorological and geographical features and the consequent relative road safety, it is unrealistic to require the managers of the road to remove all of the ice on every road simultaneously after the snow. If the road manager has implemented ice-preventing measures successively from the higher risk areas in consideration of the road conditions, it is reasonable to hold drivers responsible to be attentive to prevent accidents by driving with an appropriate method and attitude themselves in the areas where snow or ice removing operations have not yet been performed. The responsibility for an accident that occurs due to the driver's insufficient attention cannot be said to be caused by the management defect on the part of the road manager. Drivers who pass through the road in mountainous areas immediately after it snows in winter can expect or should reasonably be aware that some parts of the road may be icy and slippery depending on the geography. Thus, in such a situation, it cannot be said that the road manager failed to maintain the road properly even if a warning or danger sign is absent.
Applying to the facts of this case, the road at the point of the accident was situated in the mountain area, and the accident occurred in winter when the road easily froze after it snowed. A picture submitted as evidence showed that the accident occurred soon after it snowed. The court below should have decided whether the road at the point of the accident was mismanaged after individually and specifically contemplating on the issues including how much of and when the snow fell in the area near the accident; to what extent the road froze because of the snow; whether the defendant performed a snow or ice removal operation successively from the higher risk areas by employing the defendant's personnel and physical resources after the snow; whether the defendant could have removed the snow but neglected the area before the accident in light of the degree of danger to the traffic and the defendant's ice and snow removal ability; whether other cars safely passed the area without experiencing much difficulties prior and subsequent to the accident; and what the deceased driver Lee Jong-dong's driving habits and faults were at the time of the accident.
Nonetheless, the court below hastily found the defendant at fault in maintaining the road based solely on the reasons described in its ruling without performing a full investigation. This is a reversible error in matters of law as the judgment was influenced by a misapplication of legal principle concerning maintenance defects.
3. Accordingly, the part of the judgment of the court below that ruled against the defendant shall be reversed and the relevant part of this case shall be remanded to the court below. This decision is delivered with the assent of all Justices who reviewed the appeal.
Justices Shin Seong-taek (Presiding Justice)
Chi Chang-kwon
Suh Sung
Yoo Ji-dam (Justice in charge)
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