1990.11.29

1987 (A) 1480

Keishu Vol. 44, No. 8

Decision concerning the case where the Chief of the Administration Department of a department store and the manager and representative director of a cabaret within the building of the department store were 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 the building

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

Decision of the First Petty Bench, dismissed

Osaka High Court, Judgment of September 28, 1987

With regard to a fire incident in which a fire broke out on the third floor of the building of a department store where electrical work was being conducted after closing of the department store and many persons were killed or injured due to inflow of a large amount of smoke to a cabaret that was open on the seventh floor, the Chief of Administration Department of the department store is found to have neglected the duty of care, as a fire prevention manager, to take measures such as closing fireproof compartment shutters, etc. on the third floor to the extent possible and putting in place a system to have safety foremen, etc. be present at the work site so that they could immediately inform the cabaret in the event of the outbreak of a fire; the manager of the cabaret is found to have neglected the duty of care, as a fire prevention manager, to execute evacuation guidance drills under normal circumstances so that the employees could appropriately guide guests, etc. for evacuation in the event of the outbreak of a fire on a floor below; and the representative director of a company that ran the cabaret is found to have neglected the duty of care, as a person who holds the title to manage, to specifically supervise whether the fire prevention manager was appropriately conducting fire prevention management operations. All of them 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 appeals are dismissed.

[I] Determination on the reasons for a final appeal

Of the reasons for a final appeal stated by the counsel, L, the part alleging violation of Article 38, paragraph (3) of the Constitution of Japan lacks a premise because it is obvious in the text of the judgment in prior instance that the court of prior instance did not find the accused, K, guilty based only on his written statement of confession at the investigation stage. Other parts, including the part alleging violation of the Constitution of Japan, are substantially arguments of an erroneous finding of facts and a mere violation of laws and regulations. The reasons for a final appeal stated by the counsels, M, L, N and O, are arguments of an erroneous finding of facts and a mere violation of laws and regulations, and the reasons for a final appeal stated by the counsel, O, are arguments of an erroneous finding of facts and a mere violation of laws and regulations. None of them constitute a legitimate reason for a final appeal.

[II] Determination by this court's own authority

In consideration of the counsels' arguments, the Court considers the case by its own authority.

I. Outline of the case

According to the findings of the judgment in prior instance, the following facts are found.

(1) The building of Department Store A (hereinafter referred to as the "Building") is a building that had seven stories above the ground and one below, with a three-story penthouse (gross floor area was 27,514.64 m2; including the rooftop), which was owned and managed by Stock Company C (hereinafter referred to as "C"). It was a multiple-tenant building in which stores directly run by C and stores run by lessees from C (so-called "tenants") were present in a mixed manner. C used the sixth floor and below as "Department Store A," and Stock Company D, which is a C's subsidiary, had leased a large portion of the seventh floor (floor area was 1,780 m2) from C and had run a cabaret "J." (2) According to lease agreements, etc. between C and the tenants, the tenants were prohibited from keeping night watch, and C was supposed to conduct operations relating to fire and crime prevention, including security for the tenants' store facilities and goods outside hours. The Department Store A Administration Division of C was in charge of the aforementioned operations. (3) The defendant, G (hereinafter referred to as "Defendant G"), served as the Chief of the Administration Department of the same Administration Division, being in the position of assisting the Assistant Manager of the same Administration Division, H (the co-accused in the first instance; dead as of the first instance), who presided over the management and administration of the Building. Defendant G was also in the post of a fire prevention manager provided in Article 8, paragraph (1) of the Fire Service Act (prior to amendment by Act No. 64 of 1974) (hereinafter referred to as a "fire prevention manager") of Department Store A. (4) The defendant, I (hereinafter referred to as "Defendant I"), was the representative director of Stock Company D and fell under the "person who holds the title to manage" as provided in the same paragraph (hereinafter referred to as a "person who holds the title to manage") of J. The defendant, K (hereinafter referred to as "Defendant K"), was the manager of J and was in the position of the fire prevention manager of J. (5) The sales floors of Department Store A were closed at 9:00 p.m., and after that, there were no employees on the sales floors where a large amount of combustible materials were placed, and only five safety foremen of the Department Store A Administration Division ordinarily engaged in safety management, including fire and crime prevention, and only J on the seventh floor was open up to 11:00 p.m. and many employees and guests were present. (6) Fireproof compartment shutters and fireproof doors (hereinafter referred to as "fireproof compartment shutters, etc.") had been installed on the sales floors of Department Store A, but these fireproof compartment shutters, etc. were not closed after the closing of Department Store A. In addition, disaster prevention public announcement system amplifiers for all-around reporting had been installed on all the floors up to the sixth floor, but there was no facility for reporting to J on the seventh floor, and there was no way to communicate with J other than making a phone call from the safety room on the first floor by an external line after 9:00 p.m. (7) Because of the structure of the Building, the stairs, which were at the back of the cloakroom next to the elevator that was for exclusive use by J on the south side of the seventh floor and which had been used by employees under normal circumstances (Stairs B in the drawing attached to the judgment; hereinafter symbols affixed to the stairs correspond to the same drawing), were the only safe stairs for evacuation which were completely blocked from the sales floors of Department Store A, in the event of the outbreak of a fire on a floor below the seventh floor, where J was located. However, no drills on the assumption of the outbreak of a fire on a floor below had been executed, let alone evacuation guidance drills using the same stairs. (8) Only one escape chute had been installed at J, and that was partially broken. In addition, no evacuation drills using it had been conducted. (9) Under such circumstances, around 10:25 p.m. on May 13, 1972, the fire broke out at the bedding section of Stock Company L, which had leased a large portion of the third floor of the Building (floor area was 3,665 m2) at that time, on the east side of the same floor when employees of a company entrusted with electric work from L were conducting the work within the sales floor on the same floor, though the cause of the fire is still unknown. The second to fourth floors were almost completely destroyed by fire, and a large amount of smoke caused by the expansion of the fire went up through the hoistway of the elevator exclusively for J on the south side, Stairs E, Stairs F, and the ventilation duct on the north side of the Building and flowed into J on the seventh floor. (10) The number of security foremen who were keeping night watch on the Building that night was four because one was absent. However, all of them had no choice but to evacuate from the Building without conducting any fire extinguishing work due to intense fire smoke. In this process, all the safety foremen completely forgot to report the outbreak of the fire to J by phone, and none of them made the report. (11) Defendant K could have directed the employees to guide the guests, etc. for evacuation from safe Stairs B at the initial stage when smoke flowed into J from the aforementioned ventilation duct and the entrance of the elevator on the south side on the seventh floor, but missed that opportunity. In addition, although the end of the escape chute was dropped to the ground, the employees could not use it in the end because they did not know the way to open the entrance of the escape chute. (12) As a result of the fire, 118 guests and employees died and 42 suffered injuries due to carbon monoxide poisoning, falling while sliding down outside of the escape chute, and other reasons.

II. Concerning Defendant G's Negligence

1. The court of prior instance ruled as follows: In order to prevent the expansion of the fire, Defendant G should have put in place a system to close all of the fireproof compartment shutters, etc. in the sales floors on the first to fourth floors of the Building, except for four automatically descending fireproof compartment shutters on the third floor, after the closing of Department Store A, and to open only fireproof compartment shutters, etc. that needed at least to be opened when any work was being conducted in relation to the work, while ensuring that the opened shutters, etc. could be closed at any time with attendance of safety foremen, and there were no circumstances that would have made it impossible for Defendant G to perform the aforementioned duty. Based on this ruling, the court of prior instance determined that Defendant G was responsible for the negligence.

2. The counsels argued as follows: It was originally only necessary for C to make it possible to close the fireproof compartment shutters, etc. in the event of a fire, and neither laws nor regulations provide any grounds for the need to close all fireproof compartment shutters, etc. after closing of the department store; in addition, it was a duty of the tenant that conducted the work to have safety foremen be present at the work site and C did not have a duty to deploy safety foremen of its Department Store A Administration Division to the work site.

3. The Court considers the case on this point. Under the circumstances mentioned in I.(5) above, it was highly likely that any fire in Department Store A after closing would expand easily. Therefore, it is obvious that C had the duty of care to take as many various measures as possible to prevent the expansion of a fire, irrespective of whether there are relevant provisions in laws and regulations (see 1955 (A) No. 2822, the decision of the Third Petty Bench of the Supreme Court of December 17, 1957, Keishu Vol. 11, No. 13, at 3246). It is sufficiently conceivable as one of such measures to completely close the fireproof compartment shutters, etc. under normal circumstances. However, only with regard to the fire in question, if C had adopted a system to close all the fireproof compartment shutters, etc. (11 fireproof compartment shutters, excluding those that automatically descend, and two fireproof doors) on the third floor of the Building, where the work was being conducted at that night, except for two fireproof compartment shutters at the south end which was at least required to be opened for the work, and to have safety foremen or alternatives thereto be present at the work site and take measures to close the one fireproof compartment shutter on the east side at the south end on the side of the place of the fire immediately after the outbreak of the fire, and also have the safety foreman report the outbreak of the fire to J, most of the smoke would have remained in the part partitioned by the fireproof compartment shutter on the east side, which partitioned the east and west sides. Then, most smoke would have gone up only through the hoistway of the elevator exclusively for J on the south side, and the inflow of smoke to J could have been reduced in the same manner as the case of having taken measures to completely close the shutters. It is recognized that J's guests and employees could have been evacuated, by a report of the outbreak of the fire made by any of the safety foremen or alternatives thereto via the safety room on the first floor. In that case, C should be considered to have had the duty of care at least to the aforementioned extent, and the judgment in prior instance is considered to affirm this point.

4. In that case, Defendant G, who was the Chief of the Administration Department of the Department Store A Administration Division of C and was also the fire prevention manager of Department Store A, should be considered to have been in the position of performing the duty of care to close fireproof compartment shutters, etc. on the third floor of the Building, where the work was conducted, to the extent possible and to take measures to have safety foremen or alternatives thereto be present at the work site, by Defendant G's own authority or by seeking instructions from H, who was Defendant G's superior and was the Assistant Manager of the Administration Division. Therefore, Defendant G who violated the aforementioned duty and caused the result of this case is responsible for negligence.

III. Concerning Defendant K's Negligence

1. The court of prior instance ruled as follows: As the fire prevention manager of J, Defendant K had the duty of care to make efforts to maintain the escape chute under normal circumstances, to direct the employees to execute evacuation guidance drills for guests, etc., and to prevent the occurrence of an incident due to delay in evacuation of guests, etc. by directing the employees to promptly guide guests, etc. to the aforementioned Stairs B, or directing the employees to let guests, etc. evacuate using the escape chute, in the event of intrusion of smoke.

2. The counsels argued as follows: The officers of the fire authorities neither gave guidance to the effect that evacuation from Stairs B was safest, nor instructed execution of drills in line with such guidance, at the time of a fire drill conducted once in July of the year previous to this case, and there was no need for Defendant K to always worry about the outbreak of a fire on the sixth floor or below, where no sources of fire exist.

3. The Court considers the case on this point. As held in the judgment in prior instance, it is found that Defendant K could have easily reached a conclusion that Stairs B were the only passage through which people can evacuate to the ground in a safe and assured manner if Defendant K had assumed the outbreak of a fire on a floor below in advance and had checked an appropriate route for evacuation. Defendant K should be considered to have had the duty of care, as the fire prevention manager of J which serves many guests including those who visit for pleasurable activities, etc. at the high-rise part of the Building, to execute evacuation guidance drills under normal circumstances so that the employees can appropriately guide the guests, etc. for evacuation in the event of the outbreak of a fire on a floor below. Therefore, Defendant K, who neglected the aforementioned duty of care, was obviously criminally negligent even in consideration of the circumstances where all the safety foremen completely forgot to report the outbreak of the fire to J.

IV. Concerning Defendant I's Negligence

1. The court of prior instance ruled that Defendant I also had had the duty of care as mentioned in III.1. above, as the person who held the title to manage J, together with Defendant K, who was the fire prevention manager.

2. The counsels argued that Defendant I was not found to have had the duty of care to execute evacuation guidance drills using Stairs B because Defendant K had not had the same duty of care.

3. The Court considers the case on this point. As mentioned above, Defendant K is found to have had the duty of care to execute evacuation guidance drills. Defendant I knew that appropriate evacuation guidance drills had not been sufficiently executed under normal conditions because the repair or replacement of the escape chute had been neglected, but did not perform the duty of care to specifically supervise whether Defendant K was appropriately conducting the aforementioned fire prevention management operations. Therefore, Defendant I was obviously negligent in this regard.

[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