1990.11.16

1987 (A) 519

Keishu Vol. 44, No. 8

Decision concerning the case where a hotel operator was found guilty of the crime of causing death or injury through negligence in the pursuit of social activities with regard to a fire incident that occurred at a hotel

Case charged for causing death or injury through negligence in the pursuit of social activities

Decision of the First Petty Bench, dismissed

Tokyo High Court, Judgment of February 12, 1987

With regard to a fire incident in which a fire broke out at a hotel and a considerable number of guests and others were killed or injured due to permeation of fire smoke in the buildings in a short period, which was caused by the lack of fire doors and fireproof compartments that prevent the expansion of inflow of fire smoke, together with the employee's complete failure to guide the guests for evacuation, the person who had the supreme authority to preside over and coordinate the management and administration of the hotel and was in the position of performing fire and disaster prevention management for the buildings of the hotel is found to have neglected the duty of care to install fire doors and fireproof compartments and to prepare a fire defense plan and execute evacuation guidance drills based thereon; and hence, the same person should be found criminally negligent and guilty of the crime of causing death or injury through negligence in the pursuit of social activities.

Article 211 of the Penal Code

Penal Code
Article 211
A person who fails to exercise due care required in the pursuit of social activities and thereby causes the death or injury of another shall be punished by imprisonment with or without work for not more than 5 years or a fine of not more than 1,000 yen. The same shall apply to a person who through gross negligence, causes the death or injury of another.

The final appeal is dismissed.

[I] Determination on the reasons for a final appeal

Of the reasons for a final appeal stated by the counsels, the part alleging violation of a judicial precedent is irrelevant in this case because all the judicial precedents cited in the counsels' arguments addressed a different type of facts, and other parts are arguments of a mere violation of laws and regulations, an erroneous finding of facts, and inappropriateness of sentencing. None of them constitute any of the reasons for a final appeal as referred to in Article 405 of the Code of Criminal Procedure.

[II] Determination by this court's own authority

In consideration of the counsels' arguments, we consider whether the accused is guilty of the crime of negligence with regard to the fire incident.

I. According to the judgment in prior instance and the findings in the judgment in first instance upheld by the former, the facts of this case are as follows.

1. (A) The accused was the director of a limited liability company, Hotel A, for which the business purpose is the hotel business, etc., and engaged in the management of Hotel A jointly with her husband, B, who was the representative director. However, partly for the reason that B had lost his willingness to manage the hotel, the accused worked at the same hotel on a steady basis and engaged in daily operations by directly leading and supervising employees and also implemented new construction and extension and reconstruction of the buildings of the hotel, in addition to the maintenance thereof. In relation to these operations, the accused also engaged in fire and disaster prevention management operations. (B) At the hotel, a manager (store manager) had been appointed, but the manager needed to obtain approval from the accused, who presides over accounting, in order to expend any amount other than small expenditures, such as those for purchasing daily equipment. The accused's approval was also ultimately required with regard to recruitment of general employees and determination of their salaries, etc. In terms of fire and disaster prevention management operations, the manager carried out the management operations under the accused's instructions on a case-by-case basis. (C) There was no person who falls under a "person who holds the title to manage property under fire prevention measures" as referred to in Article 8, paragraph (1) of the Fire Service Act, other than the accused and B, at the hotel, and a fire prevention manager provided in the same paragraph had not been appointed. There was also no person who was recognized as having substantially been in that position among employees who held a lower position than the manager.

2. The hotel had a structure wherein an old wing, which was a steel-framed wooden five-story building with a partially flat roof made of zinc plated sheet steel (gross floor area was 1,537.22 m2), and a new wing, which was a wooden and partially steel-framed two-story building with a roof made primarily of zinc plated sheet steel and partially of tiles (gross floor area was 1,469.878 m2) were adhered to each other and the central parts of each of the first and second floors of the new wing and the old wing were connected with a walk-through. The number of persons who can be accommodated for lodging was about 250.

3. Around 3:00 p.m. on November 20, 1980, a worker of a construction company, who was cutting off an iron fence using an acetylene gas cutting machine at a site previously used for an open-air bath outside a women's bath adhering to the west side of the new wing, negligently had the flame of the cutting machine flow into a gap on the external wall of the women's bath. This caused a fire around that site, and the flame reached the loft of the women's bath while going up within the wall body and passed on to the ceiling. The flame and smoke that permeated that space went through the ceiling and side walls of the stairs to the second floor of the new wing that adhered to the loft and caused a flashover, which led to the outflow of a large amount of smoke. Then, the smoke went up the aforementioned stairs, moved on to the east in the hallway on the second floor of the new wing, and flew into the old wing after going through the walk-through, which was the joint part of the new and old wings. The smoke further went up the central stairs and west-side stairs of the old wing and permeated the third and fourth floors, and the flame spread thereafter. Incidentally, a great amount of smoke and flame easily flowed in and permeated the stairs, hallways, guest rooms, etc. on the second to fourth floors of the old wing in a short period of time because no fire door was installed at the walk-through parts between the new and old wings] of the hotel and the central and west-side stairs on the second to fourth floors of the old wing were not designed as fireproof compartments. In addition, a considerable number of guests and employees, who were in the women's bath or the big bath adjacent thereto or on the second to fourth floors of the old wing, were trapped with nowhere left to run, without being informed of the outbreak of the fire nor being guided for evacuation appropriately by the hotel employees, and inhaled a great amount of smoke, carbon monoxide, etc. or could do nothing but jump down onto the roof of the new wing, etc. As a result, out of the guests, including groups of senior citizens' associations, and the hotel employees, 45 people in total died and 22 people suffered injuries.

4. Incidentally, at the hotel, preparation and notification of a fire defense plan relating to evacuation guidance, etc. for the guests in the event of a fire, let alone appointment and notification of a fire prevention manager required under the Fire Service Act, was not conducted at all, and drills for fire extinguishing activities, reporting, and evacuation, etc. had never been conducted. In addition, for the old wing of the hotel, it was obligatory under the laws and regulations concerning the building standards to design the stairs as fireproof compartments and to install smoke detector-linked Class A fire doors at the walk-throughs between the first floors and second floors, respectively, of the old wing and the new wing, which were the opening sections of the external wall. The accused was aware, based on recommendations for improvement, etc. made by the competent fire station of Town [a] and the Civil Engineering and Architecture Division of Tochigi Prefecture, that even if a fire broke out from a building part other than the old wing, the inflow and expansion of smoke and flame could be prevented and the safety of the lives and bodies of the guests, etc. in the old wing could be secured if these facilities were installed. However, the accused had not installed these facilities. Incidentally, there were no such circumstances that would have made it difficult to install the aforementioned facilities at the hotel.

5. The following is found with regard to the fire: At the hotel, if a fire defense plan had been prepared in advance, employees had been thoroughly informed of the method of evacuation guidance through execution of evacuation drills based on the plan, a smoke detector-linked Class A fire door had been installed at the walk-through part between the second floors of the new wing and the old wing, and the central and west-side stairs on the second to fourth floors of the old wing had been designed as fireproof compartments, inflow of smoke to the old wing could have been blocked for at least about 30 minutes thanks to the installation of the aforementioned fire door and fireproof compartments, and all the guests and employees in the old wing could have evacuated to a safe place based on the evacuation guidance of the trained employees within the aforementioned 30 minutes, even if some confusion might have occurred at the time of evacuation.

II. According to the aforementioned facts, it is clear that the accused had the supreme authority to preside over and coordinate the management and administration of Hotel A together with B and was in the position of performing fire and disaster prevention management for the buildings of the hotel. Inns and hotels, which have accommodation facilities and provide many and unspecified persons with convenience, such as lodging, day and night, face the risk of a fire at all times. Moreover, the accused was aware that the fire and disaster prevention measures of the hotel were insufficient both in human and material terms. Therefore, the accused should be considered to have been able to easily foresee that there was a risk that once a fire broke out, it could grow into a large fire due to a delay in detection, failure to carry out first-aid firefighting, etc., and the guests, etc., unfamiliar with the structure of the buildings and evacuation routes, would be killed or injured in the fire. As no fire prevention manager had been appointed at the hotel, it should be held that the accused had a duty to prepare a fire defense plan as recognized necessary by herself or order an executive employee to prepare it and to execute evacuation guidance drills based thereon, and that, for the purpose of preventing the inflow and expansion of smoke and fire to the second to fourth floors of the old wing and securing the safety of the lives and bodies of the guests, etc., the accused had a duty to install a smoke detector-linked Class A fire door at the walk-through part between the second floors of the new wing and the old wing and to design the central and west-side stairs on the second to fourth floors of the old wing as fireproof compartments. There were no such circumstances that would have made it difficult for the accused to take necessary measures to perform the aforementioned duties. Regarding the deaths and injuries of the guests and employees resulting from the fire, it is found that if the accused had prepared a fire defense plan in advance and had executed evacuation guidance drills based thereon and had also installed the aforementioned fire door and fireproof compartments, the deaths and injuries of the guests, etc. resulting from the fire could have been avoided through the combined effect of those measures.

For the reasons described above, the deaths and injuries of the guests, etc. resulting from the fire are due to the accused's failure to perform the aforementioned duties despite the existence thereof. Therefore, the accused was criminally negligent, and the determination in the judgment in prior instance that found the accused guilty of the crime of causing death or injury through negligence in the pursuit of social activities is reasonable.

[III] Conclusion

Accordingly, in accordance with Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure, the Court unanimously decides as set forth in the main text.

Justice OHORI Seiichi

Justice TSUNODA Reijiro

Justice OUCHI Tsuneo

Justice YOTSUYA Iwao

Justice HASHIMOTO Shirohei