2007.07.06

2005 (Ju) 702

Minshu Vol. 61, No. 5

Judgment concerning a case where the designer, constructor or construction supervisor involved in the construction of a building is held liable for a tort against a person whose life, body or property has been infringed by defects in the building

Case to seek damages

Judgment of the Second Petty Bench, partially quashed and remanded, partially dismissed

Fukuoka High Court, Judgment of December 16, 2004

The designer, constructor and construction supervisor involved in the construction of buildings shall, when constructing a building, bear the duty of care to ensure the fundamental safety necessary for a building, not only to the party to the contract but also to the building users including residents as well as neighbors and passers-by who are not in a contractual relationship with them, and if the negligence of this duty has resulted in defects in the building that undermine its fundamental safety, thereby infringing the life, body or property of residents, etc., the designer, etc. shall be liable under the tort provision of the Civil Code to pay damages caused by such defects, unless there are special circumstances where, for example, the person claiming the tort liability has purchased the building while knowing and taking into account the existence of the defects.

Article 709 of the Civil Code

Article 709 of the Civil Code
(Damages in Torts)
A person who has intentionally or negligently infringed any right of others, or legally protected interest of others, shall be liable to compensate any damages resulting in consequence.

1. The judgment of prior instance is quashed with respect to the part concerning the claim made by the appellants of final appeal to seek damages for a tort.
2. This case is remanded to the Fukuoka High Court with respect to the part mentioned in the preceding paragraph.
3. The remaining part of the final appeal filed by the appellants of final appeal is dismissed.
4. The appellants of final appeal shall bear the cost of the final appeal with respect to the preceding paragraph.

Concerning Reason II-2 for petition for acceptance of final appeal argued by the appeal counsel, KODA Masahiro
1. In this case, the appellants of final appeal, who purchased a building constructed as a nine-story condominium/store building from its original owner, allege that there are defects in the building including cracks and weakened bearing force of the reinforcing steel, and seek damages for a tort from an appellee of final appeal, Y1, who took charge of designing and construction supervision of the building. The appellants, while arguing that they have been acquired the status of oderer under the contract for work, also seek costs for repairing the defects or damages based on a warranty against defects as well as damages under the tort provision of the Civil Code from the other appellee of final appeal, Y2, who took charge of the construction of the building.
2. The outline of the facts legally determined by the court of second instance is as follows:
(1) Y1 is a company engaged in designing, planning and construction supervision of buildings. Y2 is a company engaged in civil engineering and building construction.
(2) On August 8, 1988, A purchased the land indicated in section 2 of the list of articles, Attachment 1 of the judgment of first instance (hereinafter referred to as the "Land"), and on October 19, 1988, concluded a contract for work with Y2 for constructing the building indicated in section 1 of the said attachment (hereinafter referred to as the "Building") at the price of 361 million yen (the contract price was later increased by 5.6 million yen) (this contract shall hereinafter referred to as the "Contract for Work").
(3) Y1 was entrusted by A with designing and construction supervision for the construction of the Building.
(4) The construction of the Building was completed on the last day of February 1990, and Y2 delivered the Building to A on March 2, 1990.
(5) On May 23, 1990, the appellants purchased from A the Land at 149,991,000 yen and the Building at 412,009,270 yen, and received delivery thereof. Between the appellants, the co-owner's share in the Land and the Building was determined as 75% for X1 and 25% for X2.
(6) The Building is a nine-story flat-roof reinforced concrete building constructed on the Land, which consists of a nine-story part (Part A) and a three-story part (Part B) connected with each other.
Part A has a parking lot on the first floor, and six residential units for rent on each of the second to ninth floors, with a bath, toilet, and kitchen installed in each unit. Each unit has a balcony on the south side, and leads to a common hallway on the north side. Elevators are installed on the west side of Part A. Part B has a store on the first floor, an office on the second floor, and two somewhat spacious residential units for rent on the third floor.
(7)The Building has the following defects:
(a) Part A: Cracks in the common hallway on the north side and in the balconies on the south side, which run parallel with the building
(b) Part A: Cracks in the common hallway on the north side and in the balconies on the south side, which run orthogonally with the building
(c) Part A: Cracks in the beams and walls of the parking lot on the first floor
(d) Part A: Cracks and deflection in the floor slabs of the residential units
(e) Part A: Cracks in the walls standing between the residential units
(f) Part A: Cracks in the exterior walls (the handrails of the hallway, and the exterior walls on the north and south sides)
(g) Part A: Exposure of the reinforcing steels of the eaves of the penthouse on the roof
(h) Part B: Cracks in the floors of the residential units
(i) Part B: Cracks in the interior walls of the residential units and in the exterior walls on the east and south sides
(j) Weakened bearing force of the reinforcing steel due to the cracks in the reinforced concrete
(k) Part B: Structural defects in the floor slabs (ceiling slabs) (the inclination of the cantilever beams and the shortage of reinforcing steel)
(l) Part B: Shortage of bearing force due to the piping sleeves penetrating the beams
(m) Part B: Exposure of the reinforcing steel of the floor slabs of the office on the second floor
(8) The appellants argue that in addition to the defects mentioned in (7), the Building has other defects such as wobbling of the handrails of the balconies and cracks and crevices in the pipes, and allege that the appellees shall be liable for a tort on the grounds that the Building has all these defects.

3. The court of second instance dismissed the appellant's claim in whole, on the following grounds.
(1) The appellants have not been assigned from A the contractual status to seek fulfillment of a warranty against defects from the appellees.
(2)(a) The existence of defects in a building does not necessarily raise a tort liability of the constructor or the person in charge of designing or construction supervision. There would be room to find a tort liability only where the defects are significantly illegal, for instance, where the constructor has produced a defective building with the positive intention of infringing the client's rights, where the nature of the defects is anti-social or unethical, or where the degree or substance of the defects in the building is so serious that the very existence of the building poses a danger to society.
(b) In order to find the appellees' tort liability, the aforementioned special requirements must be satisfied. However, the appellees cannot be found to have produced the defects with the positive intention of infringing the rights of the owner of the Building. The defects mentioned in 2(7), which are found by the court, are not so serious as to undermine the safety of the structural bearing force of the Building, and therefore the Building cannot be deemed to be unacceptably dangerous to the society or the public, nor can the nature of the defects be deemed to be anti-social or unethical. Furthermore, since other defects in the Building additionally alleged by the appellants usually cannot be regarded as being related to the foundation or structural framework of the Building, the tort liability would not be established even if such defects existed. Consequently, since the defects in the Building cannot be found to be significantly illegal to the extent to find a tort liability, without needing to make examination on other points, the appellants' claim based on the argument of a tort is groundless.

4. However, the determination of the court of second instance mentioned in 3(2) above cannot be affirmed, on the following grounds.
(1) Since a building is used by various people including those who live there, who work there and who visit there, and surrounded by other buildings or roads, a building must be safe enough to avoid endangering the life, body and property of the building users as well as neighbors and passers-by (hereinafter collectively referred to as "residents, etc."). Safety from this viewpoint should be regarded as the fundamental safety necessary for a building. Consequently, it is appropriate to construe that the persons involved in the construction of buildings, namely, the designer, constructor and construction supervisor (hereinafter collectively referred to as the "designer/constructor, etc.") shall, when constructing a building, bear the duty of care to secure the fundamental safety necessary for a building, not only to the party to the contract but also to residents, etc. who are not in a contractual relationship. If the negligence of this duty by the designer/constructor, etc. has resulted in defects in the building that undermine its fundamental safety, thereby infringing the life, body or property of residents, etc., the designer/constructor, etc. should be deemed to be liable under the tort provision of the Civil Code to pay damages caused by such defects, unless there are special circumstances where, for example, the person claiming the tort liability has purchased the building while knowing and taking into account the existence of the defects. This reasoning shall also apply where the residents, etc. have acquired the building from its original owner.
(2) The court of second instance held that the designer/constructor, etc. involved in the construction of a defective building should be held liable for a tort only where the defects in the building are significantly illegal, for instance, where the building has defects that are related to its foundation or structural framework and therefore the building is unacceptably dangerous to the society or the public, and based on this reasoning, the court concluded that the defects in the Building were not significantly illegal to the extent to find a tort liability. However, it should be construed that the liability for a tort shall be found where there are defects in a building that undermine the fundamental safety necessary for a building, and there is no reason to construe that the tort liability shall be established only where the defects are significantly illegal. For instance, a defect in the handrail of a balcony might endanger the life or body of residents, etc. because residents, etc. might fall down from the balcony when using such a defective handrail in an ordinary manner. Such a defect in a building should be deemed to be likely to undermine the fundamental safety necessary for a building, and there is also no reason to construe that the tort liability shall be found only where defects exist in the foundation or structural framework of the building.

5. The determination of the court of prior instance mentioned in 3(2) above that contravenes this reasoning is illegal in that it has erroneously construed Article 709 of the Civil Code, and such illegality apparently affects the judgment. The appellants' argument is well-grounded in that it alleges such illegality, and the judgment of prior instance should inevitably be quashed with respect to the part concerning the appellants' claim to seek damages for a tort. For further examination as to whether or not the appellees should be liable for a tort, including whether or not the Building has such defects that undermine the fundamental safety necessary for a building and, if any, whether or not the appellants have suffered damage caused by such defects, this case is remanded to the court of prior instance.
The remaining part of the appellants' claim is dismissed because the reasons therefor stated in the petition for acceptance of final appeal have been excluded by the decision to accept the final appeal.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice IMAI Isao
Justice TSUNO Osamu
Justice NAKAGAWA Ryoji
Justice FURUTA Yuki