The sewer manure regurgitated, and she sued 30 neighbors upstairs, which was dismissed

Owners who have not returned home for a long time

When I got home, I was shocked to open the door

The ground is covered with backwater

The ground at home can't bear to look directly

The consequences of sewer blockage are so severe

Who is responsible for this "human tragedy"?

She angrily sued all the occupants upstairs in court

......

This

Will the court support her?

The house was covered with feces, and the anger took all the upstairs neighbors to court

In April 2018, the owner of 201 in a residential area in the Yanjiang Industrial Development Zone in Nanjing was shocked when he returned home: the ground in his home was covered with feces and sewage flowing backwards from the toilet. After cleaning, it was found that the plugging out of the dredging was toilet paper and cement slurry powder for decoration. Unable to determine who was the "initiator", the 201 owner sued a total of 30 households upstairs who shared the same pipeline with him to the court, demanding that they jointly compensate for the loss of more than 50,000 yuan.

First instance: The plaintiff's claim was rejected

The court of first instance held that the source of the blockage had a variety of possibilities, both from all the households of the same unit (including the plaintiff), nor could it be excluded that it originated from the construction of the builder, and now the plaintiff claimed that the blockage was caused by 30 defendants, and the evidence was insufficient, and rejected the plaintiff's claim.

Second-instance judgment changed: the plaintiff and the 23 owners who could not prove themselves were jointly responsible

The court of second instance held that from the blockage that was dredged, the plaintiff and other residents had the possibility of failing to use the public sewer reasonably, and if they could not prove that they were not at fault, they should bear corresponding liability. At present, 7 of the 30 defendants have not yet been renovated and occupied, ruling out the possibility of improper use of sewer pipes and should not be liable. After fully considering the possibility of the parties causing the sewer pipeline blockage, combined with the actual situation of the case and the proportion of the parties that should bear the responsibility, it was decided that the 23 defendants would each bear 1400 yuan in losses, and the plaintiffs would bear the remaining losses themselves.

Some of the owners were not satisfied with this judgment and submitted a retrial to the Jiangsu Provincial High Court.

Retrial: The difference from "high-altitude projectiles" is obvious, and the second-instance judgment is revoked

The Jiangsu Provincial High Court formed a collegial panel to conduct a review in accordance with law, ruling to arraign the case and suspend the enforcement of the original judgment during the retrial period.

The Provincial High Court held that from the perspective of the unclogged blockage, the plaintiff's loss was caused by improper use by someone, and in the absence of an exception in the law, the plaintiff should bear the burden of proof for the infringement of others. Owners above the second floor do not constitute joint infringement; except for the actual infringer, the other owners have not caused harm and cannot apply the principle of fair liability. The second-instance judgment essentially applied the "high-altitude projectile" rule by analogy, but it must be pointed out that the "high-altitude projectile" rule should strictly limit the application of analogy.

This case is a property damage caused by the blockage of sewer pipes, and there are obvious differences between the damage caused by the method of damage, the consequences of the damage, and the scope of social impact, and the case of damage caused by high-altitude projectiles and falling objects. In the case of damage to the property of the owner of the second floor due to the overflow of sewage caused by the blockage of public sewer pipes, the "high-altitude projectile" rule cannot be applied by analogy, and should still be handled in accordance with the principle of fault. Although the plaintiff can produce evidence to prove that there are consequences of property damage, there is no sufficient evidence to prove that the owner of the upstairs committed the tortious act, subjectively at fault, and that there is a causal relationship between the act and the damage consequences, so it should bear the adverse consequences of not being able to adduce evidence.

On September 22, the Provincial High Court announced the results of the retrial of the case: the second-instance judgment was revoked, and the first-instance judgment was upheld, that is, all the plaintiff's litigation claims were rejected.

Lawyers say

This case has caused a lot of discussion, and the High Court has determined that the principle of "high-altitude projectiles" cannot be applied by analogy, so what is the principle of "high-altitude projectiles"? Why is this case not applicable?

First of all, we must know that under normal circumstances, the determination of civil liability is theoretically divided into three forms: the principle of fault liability, the principle of no-fault liability, and the principle of fair liability.

1. The principle of fault liability refers to the principle of attribution of responsibility for judging whether the actor should bear tort liability for the damage caused by the actor on the basis of the fault of the actor, which is popularly speaking, that is, who is at fault and who bears the responsibility. The application of fault liability is the principle of "who advocates and who proves", that is, when the victim claims that the perpetrator bears civil liability, he must prove that it is the fault of the other party.

The principle of presumption of fault is a special method of the principle of fault liability, which means that if it cannot be proved that you are not at fault, you must bear civil liability. The law stipulates that the perpetrator can only be exempted from responsibility if he proves that he is not at fault. The presumption of fault is a special form of the principle of fault liability, which is done by reversing the burden of proof. In layman's terms, the plaintiff does not need to produce evidence, and the defendant proves that there is no fault. Obviously, the application of the principle of presumption of fault is tantamount to exempting the claimant of subjective fault from the burden of proof.

2. The principle of no-fault liability refers to the principle of attribution of responsibility for the perpetrator of the act, although it is subjectively not at fault, but should still bear responsibility according to the provisions of the law. Such as environmental pollution.

3. The principle of fair responsibility refers to the principle that neither the injured person nor the victim is at fault, and in the case that the fact of damage has already occurred, fair consideration is taken as the value judgment standard, and the loss is shared fairly by both parties according to the actual situation.

The principle of "high-altitude projectiles" mentioned in this case is then a presumption of fault principle. According to Article 1254 of the Civil Code of the People's Republic of China, if an object thrown from a building or an object falling from a building causes damage to others, the infringer shall bear tort liability in accordance with law; After compensation, the user of the building who may have caused the injury has the right to recover compensation from the infringer. As a special clause in China's tort law system, the "high-altitude projectile" rule has a specific historical background, and the application of the perpetrator presumption rule can relatively reasonably balance the interests of the victim and the building user. The "high-altitude projectile" rule is mainly aimed at special situations where personal injury leads to serious imbalance of interests, in order to protect the "safety above the head" of the people.

However, the scope of application of the rule should be strictly limited, and the application cannot be expanded arbitrarily in general infringement cases, especially property damage cases. The court of second instance ordered the owners who may cause damage to share their losses, which seems fair and very beneficial to the rights and interests of the owners of the second floor, but in fact undermines the foundation of private law, leaving an unspecified majority of people in society in an unfavorable position that may be held accountable at any time, which is unfair to other owners who have not committed infringements, and is unfair to the vast majority of people, and its consequences may also encourage victims in such disputes to neglect to produce evidence and enjoy the benefits of litigation.

This case is a property damage caused by the blockage of sewer pipes, the subject of the damage is not an unspecified group, and the object of harm is not necessarily personal injury, so there is a clear difference between the damage method, the damage consequences, and the scope of social impact, etc., from the case of damage caused by high-altitude projectiles and falling objects. This case does not belong to the special circumstances that must be compelled by law to intervene, so this case does not fall within the scope of the principle of "high-altitude projectiles".

The author of this article: Members of the lawyer help group of "Gao Shuang's Statement": Chen Kai, a lawyer at Beijing Gaopeng (Nanjing) Law Firm

Comprehensive: Jiangsu High Court, Yangzi Evening News, Litchi Network

Source: Jiangsu News Broadcasting