Source: Shaanxi Procuratorate
Just walked to the door of the restaurant
An iron plate actually fell from the sky
Smashed in the chest
Such a vain disaster
Who is responsible?
Flying iron plates smashed passers-by
At about 10:34 on August 7, 2021, Mr. Wang, a citizen, went out to take the bus and found a restaurant directly opposite the bus stop, so he was ready to go to lunch while waiting for the bus. Unexpectedly, as soon as Mr. Wang walked to the door of the restaurant, he was hit in the chest by an iron plate falling from the third floor, and Mr. Wang immediately fell to the ground and was injured. Colleagues traveling with Mr. Wang rushed to the police when they saw this scene.
After the police arrived at the scene, they checked the location of the iron plate dropped on the third floor and found out that this iron plate was the iron cover plate of the roof access of the building where the incident occurred, and Mr. Wang was injured because it was blown off by a typhoon, and there were still tools and materials left by the construction unit on the roof at that time.
On the day of the incident, Mr. Wang was taken to the hospital for examination and treatment. It was diagnosed that Mr. Wang was injured by a heavy object, suffered multiple injuries to his body and chest trauma. Since then, Mr. Wang has visited the hospital for treatment many times, with a cumulative medical expenditure of more than 1,500 yuan.
In the face of the "misfortune", Mr. Wang hoped to receive reasonable compensation, but negotiations with all parties were unsuccessful. In desperation, Mr. Wang decided to go to court for help.
Photo of evidence: Blown off iron plate
Court of first instance: discretionary property company and construction enterprise to bear 50% of the liability respectively
After trial, the court of first instance ascertained that the building where the incident occurred was a three-story building, the first floor was a catering shop, and the third floor led to the roof with a square access port of the building. From August 2020 to July 2021, 8 houses, including the building where the incident occurred, underwent renovation works and were accepted.
The court of first instance held that the property company of the building where the incident occurred failed to inspect and reinforce the safety of the buildings and facilities under its management when the typhoon came, and failed to fulfill its security obligations, and should bear the tort liability in this case. The old building renovation construction enterprise of the building (hereinafter referred to as the construction enterprise) failed to provide evidence to prove that the construction personnel did not enter and exit the roof of the building through the building maintenance port to carry out construction work, and also bear the corresponding civil liability.
Therefore, the court of first instance determined that the property company and the construction enterprise should bear 50% of the liability respectively, and ordered the two companies to pay Mr. Wang more than 4,800 yuan respectively for medical expenses, nutrition expenses, and mobile phone maintenance expenses.
The construction enterprise believes that it has completed the construction at the time of the incident and has reported it to the relevant unit for acceptance before the incident, so it should not bear the responsibility for fixing and managing the iron sheet cover. The construction company appealed to the Shanghai First Intermediate Court.
Court of second instance: Applying the principle of presumption of fault, the construction enterprise should bear 50% of the liability for compensation
After hearing, the Shanghai First Intermediate Court held that the focus of the dispute in this case mainly was: whether the enterprise involved in the case should bear tort liability as the user of the maintenance port if the construction enterprise of the building involved in the case used the access port to enter and exit during the construction process and did not fix the cover plate.
In this case, the construction company claimed that its construction had ended at the time of the incident and that the construction personnel had withdrawn from the site, denying that there was a causal relationship between its construction behavior and Mr. Wang's injury, so it should not bear tort liability.
The Shanghai First Intermediate Court held that Mr. Wang was injured by a typhoon blowing off the iron cover plate on the roof of the building where the incident occurred, so the owner, manager or user of the inspection port and the iron sheet cover could not prove that he was not at fault, and should bear tort liability.
Photo of evidence: Square access to the building in question
Judging from the contents of the transcript of the police questioning Mr. Wang and the process of organizing relevant parties to participate in the mediation and coordination meeting, combined with the construction company's admission during the trial that its construction personnel had used the roof inspection port of the building where the incident occurred to work on the roof, and that the iron cover plate was not fixed after use, there should be a correlation between the construction enterprise's use behavior and the fact that the iron sheet cover was blown off. Therefore, in this case, the construction company did not provide sufficient evidence to prove that it was not at fault, and should bear tort liability for Mr. Wang's damage results.
It was not improper for the court of first instance to hold the construction enterprise liable for 50% of the liability. In the end, the Shanghai First Intermediate Court rejected the appeal and upheld the original judgment.
Judge: If the facilities on the building fall off and cause injuries, the subject of responsibility should be clarified
This case involves a dispute over the subject responsible for injuries caused by the fall of facilities on a building, and the identification of the responsible entity and the allocation of the burden of proof are the focus of the trial of such cases and have reference significance.
The judge reminded that from Article 1253 of the Civil Code, it can be seen that if a building, structure or other facility, its shelving or hanging objects fall off or cause damage to others, the principle of presumption of fault applies. That is, the victim only needs to prove that he has suffered damage and that there is a causal relationship between the consequences of the damage and the fall off of the building in question. The owner, manager or user needs to prove that he is not at fault for "falling off or falling" to be exempt from liability. This provision aims to reduce the burden of proof on the victim, and to urge the owners, managers or users of buildings and other facilities to actively take relevant safety precautions and fulfill a higher standard of duty of care to prevent such injuries and better protect our "safety above our heads".
Legal Links
Civil Code of the People's Republic of China
Article 1253
If a building, structure or other facility, as well as its shelving or hanging objects, falls off or causes damage to others, and the owner, manager or user cannot prove that he is not at fault, he shall bear tort liability. After the owner, manager or user compensates, if there are other responsible persons, they have the right to recover compensation from other responsible persons.
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Source: Official number @Shanghai No. 1 Middle Court