When hitting an open sewer hatch to recover damage, the main thing is to correctly determine the balance holder of the territory in which the accident occurred (aircraft / MCC in case No. 639/2132/18 of October 30, 2019)
The plot of the judicial act: A few years ago to recover damage caused to the car by poor road conditions was a utopia. It was unclear how to file such claims in general, in particular how to record the fact of damage caused by a car collision by a pit and who exactly should be responsible for this. The court did not see a causal link between the pit on the road and the broken rim, and the inspectors of the traffic police did not find the car damaged due to a collision in the pit of an accident or could even take the driver’s rights “for clarification”.
Fortunately, the state of affairs in this matter is changing for the better, and with the right behavior, the driver can fully count on compensation for damage caused to the car through the court due to the road balancer with a saturated capacity. It’s another matter that the balance holder instead of repairing such a road spends money on appealing decisions in favor of drivers, and after all appeals he still doesn’t voluntarily comply with the court decision ... But this is another side of our life.
The interest of this case lies in the fact that the driver drove not just into the hole on the road, but ran into the open manhole of the manhole on the road. In this situation, the respondent has two candidates: a utility company for the repair and construction of city roads and a utility company water utility for the city. And really, who is to blame for this situation? The driver filed a lawsuit immediately against two utilities with joint and several claims, including moral damage.
The trial court claimed damages from the KP water utility of the city. The appellate court quashed the decision of the trial court and recovered the damage from the KP for the repair and construction of the city’s roads. The cassation court upheld the decision of the court of appeal.
The Sun emphasized that “the cover of the manhole is an element of the road that allows continuous, safe and convenient movement of vehicles” and is “an element of the road facility”. Hatches of manholes must comply with the requirements of GOST 3634. The deviation of the elevation of the manhole cover relative to the level of coverage of the carriageway should not exceed 1.0 cm (paragraph 3.1.7 of DSTU 3587-97).
At the same time, the Sun noted that according to the Unified Rules for the repair and maintenance of roads, streets, level crossings, the rules for their use and protection, approved by a resolution of the Cabinet of Ministers of March 30, 1994 for roads that are communally owned by the respective road maintenance organizations, and NOT water canals. That is, the KP for the repair and construction of city roads in this dispute is a balance holder, and since the accident occurred due to the unsatisfactory condition of an element of the road object, it should compensate the driver for harm caused on the basis of Art. 1166 Civil Code of Ukraine.
It should be added that the fundamental evidence in this category of cases is the protocol on bringing to administrative responsibility the head of the balance sheet holder under Art. 140 КУоАП - "Violation of rules, norms and standards in the maintenance of roads, failure to take measures to prohibit or restrict traffic in a timely manner, or designation of places of work on roads and streets." There was no such protocol in the case file, however, the police inspector brought to responsibility the head of KP Vodokanal, and not later than the appellate court of this balance holder determined by the court.
Analyze the judicial act: The lack of data on the presence of a tree on the balance records of the executive committee or any organization led to the responsibility of the local government in its fall (BC / MCC, case No. 200/22129 / 16-ts, 04.09.19)
The Armed Forces / MCC agreed with the conclusions of the courts that the reasons for causing damage to the vehicle owner are the improper performance of the duties of the corresponding road service (Armed Forces / MCC, No. 369/4095/16-ts, 02.09.19)
The damage caused by the collapse of the building’s facade on the car is compensated by the balance holder of the structure, in this case OSMD, in full (Court of Appeal of the Odessa Region in case 522/21016/15-c of 08/20/2018)
The local government is responsible for the failure to fulfill its obligations to ensure safe, comfortable road conditions and provide road users with relevant information (BC / MCC, 742/3127/16-c, 06.06.19)
Responsibility for damage to the car for the poor condition of the road lies with the balance holder (BC / MCC No. 0508/1310/2012 of 03/13/2019)
The municipal public service, which did not provide proper care for the green spaces, as a result of which the tree damaged the car, is liable for the damage caused (BC / MCC, case No. 211/1489/13-ts, 28.02.19)
in the name of Ukraine
October 30, 2019
case No. 639/2132/18
production number 61-14133sv19
The Supreme Court, composed of a panel of judges of the Second Trial Chamber of the Court of Cassation: V. Zhdanova (judge-rapporteur), V. Ignatenko, V. A. Kuznetsova,
participants in the case:
plaintiff - SPECIAL_1
defendant 1 - utility company “Kharkivvodokanal”,
defendant 2 - municipal contractor specialized enterprise for the repair and construction of highways of Kharkov metro station “Dorremstroy”,
third party 1 - OSOBA_2
third party 2 - Kharkiv City Council,
I examined at the hearing in written proceedings the cassation appeal of the municipal contractor specialized in the repair and construction of roads of Kharkov metro Dorremstroy against the decision of the Kharkov Court of Appeal of June 20, 2019 as part of the panel of judges: Krugovoj S. S., Mamina A. V. , Pylypchuk N.P.,
Summary of claims
In April 2018, OSOBA_1 filed a lawsuit against the utility company Kharkivvodokanal (hereinafter - KP Kharkivvodokanal), the municipal contracting specialized enterprise for the repair and construction of highways of Kharkov metro Dorremstroy (hereinafter - the CPSU for the repair and construction of roads of the city of Kharkov “Dorremstroy”), which, during the course of the proceedings, clarified, and finally asked to collect from the defendants in solidarity in their favor 238 952 UAH 64 kopecks. property damage and UAH 30,000 - in respect of non-pecuniary damage.
The lawsuit is motivated by the fact that on April 6, 2016, at the intersection of ul. Bavarian and Ave. Love Malaya in the city of Kharkov during collision with collector hatch No. 13033 by a Volkswagen Jetta automobile brand, Doctor of Economics NUMBER_2, owned by the plaintiff, the opening of this hatch took place, followed by turning over and damage to the car, about which the inspector of the Directorate of criminal investigations in Kharkiv region in relation to the head of the RED Novobavarsky district of KP “Kharkivvodokanal” OSOBA_2 compiled an administrative offense under Part Four of Article 140 of the Code of Administrative Offenses.
According to the report on the assessment of the cost of material damage, the cost of restoration repair of a car of the Volkswagen Jetta brand, Doctor of Economics NUMBER_2, at the time of the study, it is 438 420 UAH 81 kopecks. The market value of such a car for a traffic accident (hereinafter - accident) is 311903 UAH 78 kopecks. And the market value of the car after the accident is 72 951 UAH 14 kopecks.
Damage to the car OSOBA_1 occurred due to the improper condition of the hatch of the inspection well, which was on the carriageway in the closed state, but opened after driving the front wheel, and became an obstacle when the rear wheel of the plaintiff’s car came into contact with it, which led to loss of control and rollover of the said car .
Referring to the fact that on October 5, 2016 he sold a car damaged in an accident for UAH 72 951 14 kopecks. In connection with this, the cost of property damage caused to him amounted to UAH 238 952 64 kopecks, and also that as a result of the accident he received bodily damage and suffered mental suffering, OSOBA_1 requested to satisfy the claims.
Summary of the decision of the trial court
By a decision of the Oktyabrsky District Court of Kharkov dated February 14, 2019, the claim was partially satisfied. Collected from KP "Kharkovvodokanal" in favor of OSOBA_1 in respect of property damage 238 952 UAH 64 kopecks. Collected from KP "Kharkovvodokanal" in favor of OSOBA_1 in respect of non-pecuniary damage 15,000 UAH. The issue of the distribution of legal costs has been resolved. The rest of the claim OSOBA_1 denied.
The trial court proceeded from the fact that the design of the hatch that caused the accident was damaged, is an integral part of the water supply system, which are in use by Kharkivvodokanal KP, is dependent on it and maintained, and therefore the communication of compensation for the plaintiff property and moral harm entrusted precisely to KP "Kharkovvodokanal".
Summary of the decision of the court of appeal
By a decision of the Kharkov Court of Appeal dated June 20, 2019, the appeals of KP Kharkivvodokanal and OSOBA_2 were satisfied, the decision of the Oktyabrsky District Court of Kharkiv dated February 14, 2019 was canceled and a new decision was adopted, by which the claim PERSON_1 was partially satisfied. Charged from the Communist Party for the repair and construction of roads of Kharkov metro Dorremstroy in favor of OSOBA_1 in respect of property damage 238 952 UAH 64 kopecks. Collected from the Communist Party for the Repair and Construction of Kharkiv Metro Dorremstroy in favor of OSOBA_1 in respect of non-pecuniary damage 15,000 UAH. The issue of the distribution of legal costs has been resolved.
The appellate court, reversing the decision of the local court, and drawing off the damage caused to the plaintiff from the Communist Party for the repair and construction of Dorremstroy Kharkiv metro roads, took into account that the balance-holder of the territory in which the accident involving the OSOBA_1 vehicle was the Communist party for repair and construction Dorremstroy metro station in Kharkiv, which should monitor the condition and quality of the road surface of the specified territory, as well as sewage facilities located on the road.
Summary of the requirements of the cassation skargit generalization of its arguments
In July 2019, the CPSU for the repair and construction of Kharkiv metro roads Dorremstroy filed a cassation appeal to the Supreme Court, in which, citing improper application of substantive law by the court of appeal and violation of procedural law, it asks to cancel the decision of the court of appeal, and the court decision first instance upheld.
The cassation appeal is motivated by the fact that the appellate court erroneously did not take into account the absence of an unlawful act of the Communist Party of the Soviet Union for the repair and construction of Dorremstroy metro station in Kharkov, which is one of the grounds for damages in accordance with the requirements of 1166 of the Civil Code of Ukraine. In addition, the appellate court did not mistakenly take into account that the collector of plant No. 13033 is on the balance sheet of KP Kharkivvodokanal, which is charged with the duty of inspecting the external condition of the wells, the presence of covers, the integrity of hatches and the like.
Summary of the response to the cassation appeal and generalization of its arguments
In August 2019, OSOBA_2 and KP Kharkivvodokanal submitted reviews of the cassation appeal, in which they asked the cassation appeal to be dismissed, and the decision of the court of appeal was min.
The withdrawal of OSOBA_2 is motivated by the fact that the decision adopted by the court of appeal complies with the practice of the Supreme Court, is lawful and justified, since it is the owner of the road that is obliged to constantly monitor the state of all road elements, including hatches.
The recall of KP “Kharkivvodokanal” is motivated by the fact that the territorial community. Kharkov, represented by the Kharkov City Council, as the owner of the city’s roads, authorized the CPSP for the repair and construction of roads of Kharkiv metro station “Dorremstroy” to carry out operational repairs and maintenance of the street-road network of the village. The cover of the manhole is an element of the road that allows continuous, safe and convenient movement of vehicles, which is why it is the DPSR for the repair and construction of roads of Kharkov metro station “Dorremstroy” that is required to properly monitor the operational condition of this element of the road object.
Receipts of the cassation appeal to the court of cassation
By the decision of the Supreme Court of July 29, 2019, the cassation proceedings in the specified case were opened, the civil case No. 639/2132/18 was requested from the court of first instance, the decision of the Kharkov Court of Appeal of June 20, 2019 was suspended until the end of the cassation proceedings.
Article 388 of the Civil Procedure Code of Ukraine provides that the Supreme Court is the court of cassation.
In August 2019, this case was submitted to the Supreme Court.
Factual circumstances of the case established by the courts
The courts found that on April 6, 2016, at the intersection of ul. Bavarian and Ave. Love Malaya in the city of Kharkov during collision with collector hatch No. 13033 by a Volkswagen Jetta automobile brand, Doctor of Economics NUMBER_2, owned by OSOBA_1, the opening of this hatch took place, followed by turning over and damage to the car, about which the inspector of the Directorate of State Registration of Administrative Offenses in the Kharkiv region in relation to the head of the RED Novobavarsky district of KP “Kharkivvodokanal” OSOBA_2 compiled an administrative offense under Part Four of Article 140 of the Code of Administrative Offenses.
On December 2, 2016, by the decision of the Oktyabrsky District Court of Kharkov, OSOBA_2 was found guilty of an administrative offense under the fourth paragraph of Article 140 of the Code of Administrative Offenses.
This administrative offense case has been examined by the courts more than once.
On December 19, 2017, the Oktyabrsky District Court of Kharkov issued a decision which closed the proceedings in respect of OSOBA_2 in connection with the expiration of the deadline for imposing an administrative penalty.
According to the expert opinion No. 169, drawn up on July 6, 2016, and the additional expert opinion No. 16, drawn up on February 26, 2018, by OSOBA_3 expert motor vehicle, taking into account the given circumstances of this accident, the driver of the Volkswagen Jetta OSOBA_1 car in this traffic situation moving along the street. Postysheva, had to from the moment the hatch opened, act in accordance with the requirements of paragraph 12.3 of the SDA.
The motives behind the Supreme Court and the rule of law
According to the third part of Article 3 of the Code of Civil Procedure of Ukraine, civil proceedings are carried out in accordance with the laws in force during the execution of certain procedural actions, consideration and resolution of the case.
Parts of the first and second articles 400 of the Code of Civil Procedure of Ukraine stipulate that, when considering a case in cassation, the court verifies, within the limits of the cassation appeal, the correct application by the court of the first or appeal instance of substantive or procedural law and cannot establish or (and) consider circumstances that were not proven established in the decision or rejected by him, to decide on the reliability or inaccuracy of this or that evidence, on the advantage of some evidence over others.
The cassation court verifies the legality of court decisions only within the limits of the claims declared in the court of first instance.
Part three of Article 401 of the Code of Civil Procedure of Ukraine provides that the court of cassation shall leave the cassation appeal unsatisfied, and the decision unchanged if there are no grounds for canceling court decisions.
According to the first part of Article 400 of this Code.
Having studied the case materials, having checked the arguments of the cassation appeal, the panel of judges of the Second Trial Chamber of the Cassation Civil Court considers that the cassation appeal must be dismissed for the following reasons.
In accordance with the first and second parts of Article 1166 of the Civil Code of Ukraine, property damage caused by unlawful decisions, actions or inaction of personal non-property rights of an individual or legal entity, as well as damage caused to property of an individual or legal entity, is fully compensated by the person who caused the damage. The person who caused the harm shall be exempted from his compensation if he proves that the harm was caused not through his fault.
According to paragraph 4 of the first part of Article 16 of the Law of Ukraine of June 30, 1993 No. 3353-XII “On Road Traffic” (hereinafter - the Law No. 3353-XII), the driver is entitled to compensation for losses incurred as a result of the mismatch of the condition of roads, streets, railway crossings traffic safety requirements.
Part one of Article 24 of Law No. 3353-XII stipulates that the owners of roads, streets and level crossings or bodies authorized by them are responsible for creating safe traffic conditions on the roads, streets and level crossings under their jurisdiction.
Requirements for the operational condition of roads, streets of settlements, railway crossings and technical means of organizing traffic are established by DSTU 3587-97 “Road safety. Roads, streets and level crossings. Requirements for the operational state ”, which is valid from January 1, 1998 (hereinafter - GOST 3587-97).
These requirements of DSTU 3587-97 are mandatory.
Highways, streets and roads of settlements and railway crossings must be maintained in good condition for the period of their operation and ensure the safety of vehicles and pedestrians.
Hatches of manholes must comply with the requirements of GOST 3634. The deviation of the elevation of the manhole cover relative to the level of coverage of the carriageway should not exceed 1.0 cm (paragraph 3.1.7 of DSTU 3587-97).
In accordance with paragraph 2 of the Unified Rules for the Repair and Maintenance of Roads, Streets, Railroad Crossings, the Rules for Their Use and Protection, approved by the Cabinet of Ministers of Ukraine dated March 30, 1994 (hereinafter - the Unified Rules), repair and maintenance of road facilities (except for railway crossings) owned by the state is carried out by road-operating organizations that are related to the management of Ukravtodor, and those that are in communal ownership are correspondingly E municipal road e kspluatatsiynimy organizations.
Owners of road objects or bodies authorized by them, road-operating organizations are obliged: to constantly monitor the operational condition of all elements of road objects and immediately eliminate any damage or other obstacles in the road, and if this is not possible, mark them immediately with road signs, warning signs, and guiding devices in accordance with applicable standards or stop (limit) movement; control the quality of work performed by contractors; to compensate damage to vehicle owners in the manner prescribed by law if a traffic accident occurred as a result of unsatisfactory maintenance of roads, streets, railway crossings (paragraph 11 of section 2 “Obligations and rights of owners of road objects or bodies authorized by them, road operating organizations of the Unified Rules) .
The court of appeal, reversing the decision of the court of first instance, on the basis of duly assessed evidence submitted by the parties, correctly established the nature of the disputed legal relations and applied the substantive law governing their consideration that the Communist Party for the repair and construction of roads of Kharkiv metro station “Dorremstroy” is a balance holder the road on which the accident occurred with the participation of the plaintiff’s car, and therefore must constantly monitor the condition of all road elements and the canal located on it buildings, however, allowing inaction, is the basis for imposing on it the obligation to reimburse OSOBA_1 for property damage caused in accordance with Article 1166 of the Civil Code of Ukraine.
According to the requirements of Article 23 of the Civil Code of Ukraine it is determined that a person has the right to compensation for non-pecuniary damage caused as a result of a violation of his rights. Non-pecuniary damage shall be compensated at a time, unless otherwise provided by contract or law. Non-pecuniary damage consists in the mental suffering that an individual has experienced in connection with unlawful behavior in relation to himself and in connection with the humiliation of his honor, dignity and business reputation; non-pecuniary damage is compensated by money, and the amount of pecuniary damage is determined by the court taking into account the requirements of reasonableness and justice.
The amount of compensation for moral (non-property) harm is determined regardless of the nature and extent of the suffering (physical, mental, mental, etc.) that the plaintiff suffered, the nature of non-property losses (their duration, the possibility of recovery, etc.), and, subject to other circumstances, in particular the severity of forced changes in life relationships, the degree of decline in the prestige and business reputation of the plaintiff. At the same time, one needs to get out of the basics of rationality, balance and justice.
The panel of judges of the Second Chamber of the Civil Court of Cassation agrees with the conclusion of the court of appeal, given the nature, scope, duration and consequences of causing the plaintiff moral suffering, significant forced changes in his life relations, came to a reasonable conclusion that there are legal grounds for compensation for SPECIAL_1 non-pecuniary damage in a certain court size, consistent with the principles of reasonableness and justice.
The arguments of the cassation appeal do not refute the conclusion of the court of appeal reasonably set out in the reasoning part of the court decision, and boil down to a reassessment of the evidence and the applicant’s disagreement with the court’s findings on their assessment.
The European Court of Human Rights has indicated that Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms obliges the courts to give reasons for their decisions, but this cannot be taken as a requirement to provide a detailed answer to each argument. The boundaries of this debt may vary depending on the nature of the decision. In addition, it is necessary to take into account, among other things, the variety of arguments that a party can present in court, and the differences that exist in the participating states, taking into account the provisions of the law, traditions, legal opinions, statements and wording of decisions. Thus, the question whether the court fulfilled its duty to provide justification, which follows from Article 6 of the Convention, can only be determined taking into account the specific circumstances of the case (Pronina v. Ukraine, No. 63566/00 § 23 of the ECHR of 18 July 2006). The appealed court decision meets the criteria for the validity of the court decision.
Part three of Article 401 of the Code of Civil Procedure of Ukraine provides that the court of cassation shall leave the cassation appeal unsatisfied, and the decision unchanged if there are no grounds for canceling court decisions.
Based on the foregoing, the panel of judges considers it necessary to leave the appeal dismissed, and the decision of the court of appeal - unchanged.
Since the decision of the Supreme Court of July 29, 2019 suspended the ruling of the Kharkov Court of Appeal of June 20, 2019 until the end of the cassation proceedings, the cassation proceedings in the case have been completed, therefore, the execution of this court decision in this part must be restored.
In court costs
In accordance with subparagraph “c” of paragraph 4 of the first part of Article 416 of the Code of Civil Procedure of Ukraine, the cassation court must decide on the distribution of legal costs incurred in connection with the review of the case by the cassation court.
Since the cassation appeal was dismissed, there are no grounds for a new distribution of legal costs incurred in connection with the consideration of the case in the court of first instance and appeal, and also the distribution of legal costs incurred in connection with the review of the case in the court of cassation.
Pursuant to Articles 416 of the Civil Procedure Code of Ukraine, the Supreme Court, composed of a panel of judges of the Second Trial Chamber of the Cassation Civil Court,
The cassation appeal of the municipal contractor specialized enterprise for the repair and construction of highways of Kharkiv metro station “Dorremstroy” is dismissed.
The decision of the Kharkiv Court of Appeal of June 20, 2019 upheld.
To restore the effect of the decision of the Kharkov Court of Appeal of June 20, 2019.
The ruling of the court of cassation is final and not subject to appeal.
Judges: V. S. Zhdanova V. M. Ignatenko V. A. Kuznetsov