When the sky falls
Nov 18, 2021
Ceiling Collapse in a Restaurant on a Diner
By: Adv. Shlomi Hadar – John Geva, Hadar & Co., Attorneys and Mediators
Background
Recently (September 20, 2021), a court ruling was issued concerning a claim for bodily injuries sustained by a diner in a restaurant, following the fall of part of the restaurant’s ceiling onto her. According to the claim, the accident occurred in 2013 after the plaintiff had seated herself at her table in the restaurant where the incident allegedly took place. As a result of the accident, the plaintiff sustained injuries to her back, neck, and shoulders.
The lawsuit was filed against the restaurant and its insurer, claiming that the accident resulted from their negligence. The restaurant filed a third-party notice against the contractor who installed the ceiling (hereinafter: “the contractor”), and in turn, the contractor filed a notice against the insurer – Menorah Insurance – which had insured him (hereinafter: “the insurer”).
Ceiling falls on diner inside restaurant
From: Attorney Shlomi Hadar - John Geva, Hadar & Co. - Lawyers and Mediators
background
Recently (20.9.21) a ruling was issued regarding a lawsuit concerning bodily harm caused to a diner in a restaurant, after a portion of the restaurant's ceiling fell on the diner. According to the lawsuit, the aforementioned accident occurred in 2013, after the plaintiff sat down at her table in the restaurant where the alleged accident occurred. As a result of the aforementioned accident, the plaintiff was injured in her back, neck, and shoulders.
The lawsuit was filed against the restaurant and its insurer, alleging that the accident was caused by their negligence. The restaurant filed a notice against a third party – the contracting company that installed the ceiling (hereinafter: " the contractor "), which filed a notice against a third party – the Menora insurance company that insured it (hereinafter: " the insurer ").
The parties' claims
The restaurant claimed that the part of the ceiling that fell on the plaintiff was part of a lowered acoustic ceiling, and it fell near the plaintiff, and not on her. The restaurant further claimed that this was a "sudden" event that could not have been foreseen. It was also claimed that to the extent liability is determined, it should be imposed on the contractor who installed the ceiling. On the other hand, the contractor claimed that although he had performed renovation work for the restaurant, after these were completed, the restaurant made substantial changes, without his knowledge, such as installing ceiling fans, in an unprofessional manner, by connecting them to the lowered ceiling, and not to the concrete ceiling above, with appropriate anchors for hanging such fans. However, if the notice were received against him, the contractor petitioned to require the insurer to indemnify him for all of his liabilities.
The insurer rejected the contractor's claims, adding that the contractor had been issued an insurance policy for contractor work, which was intended to insure work performed by him. According to the general terms of the policy, the insurance would terminate immediately with respect to the entire project, or parts thereof, which are delivered to the project client, or their use begins, or the work on them is completed, whichever is the earliest , even if these dates were prior to the date specified in the list as the end date of the insurance period . Since the alleged accident occurred several months after the completion of the work, the insurer claimed that at the time it occurred, the contractor's work had no insurance coverage.
Parties’ Claims
The restaurant argued that the part of the ceiling that fell near the plaintiff was an element of a suspended acoustic ceiling and did not fall directly on the plaintiff. The restaurant also claimed that the incident was “sudden” and unforeseeable. Furthermore, it argued that if liability were to be established, it should be assigned to the contractor who installed the ceiling.
On the other hand, the contractor stated that although he had performed renovation work for the restaurant, after completion, the restaurant made substantial changes without his knowledge—for example, the installation of ceiling fans in a non-professional manner, attaching them to the suspended ceiling rather than to the concrete ceiling above, without using anchors appropriate for hanging such fans. The contractor further argued that if liability were imposed on him, the insurer should be required to indemnify him for any obligations arising.
The insurer rejected the contractor’s claims, adding that the contractor had been issued a contractors’ works insurance policy intended to cover the work performed by him. According to the general terms of the policy, the insurance ends immediately for any project—or part thereof—that is delivered to the project owner, put into use, or completed, whichever occurs first, even if these dates occur before the policy’s stated expiration date. Since the alleged accident occurred several months after the completion of the contractor’s work, the insurer argued that at the time of the incident, the contractor’s work was no longer covered by insurance.
Discussion and decision
After hearing the parties' arguments and examining the evidence in the case, the court determined that the lawsuit, and the third-party notice filed against the contractor, should be accepted.
The court ruled that there is no dispute that that part of the ceiling "fell" not as a result of an external event, such as an earthquake, and no opinion was submitted by the restaurant or the contractor to prove the cause of the fall.
This type of incident should not have occurred, especially in the presence of guests in the restaurant, exposing them to a significant safety risk. The "panic and terror" of witnessing a ceiling collapse "above one's head," and the moment there is a real danger of bodily harm, is enough to establish non-pecuniary damage.
The court noted that in the circumstances of the case, the evidentiary rule set out in Section 41 of the Torts Ordinance applied, which shifts the burden of proof to the shoulders of the restaurant owner and the contractor to prove that they were not negligent, but they did not discharge this burden. The court further determined that it emerged from the testimonies that there was a signed contract of engagement between the restaurant and the contractor, for the purpose of performing the work in the restaurant, however, neither of them attached the contract in order to trace the limits of the contractor's liability according to the terms of the contract. In addition, the restaurant and the contractor did not present work plans, an architectural plan, a construction plan, nor an engineering certificate from an engineer, work supervisor or professional confirming the soundness of the ceiling or the soundness of the accessories that were hung on it. In fact, from the evidence presented by the restaurant and the contractor, it was not possible to determine what caused the fall.
Accordingly, and given the fact that the ceiling collapse occurred inside the restaurant, and therefore the owner owed a duty of care to the restaurant's guests, and given the fact that the contractor was the one who installed the ceiling several months before the accident, and he also owed a duty of care to those staying under the product he built, since neither of them proved the cause of the collapse, the court ruled that the restaurant and the contractor are jointly and severally liable in equal shares for the accident.
As for the third-party notice, the court noted that the insurance is for the period defined in the policy, and is activated when the insured declares a specific project, and covers the damage that occurs in the course of performing the work on that project. That is, when the insured completes and delivers the work to the client, he informs the insurer, and the insurance for the specific project ends, but the policy continues to be valid in relation to additional active projects, if any.
The court ruled that since the incident occurred about six months after the end of the work period under the policy, and in any case after its expiration, there is no insurance coverage for the accident that occurred. Furthermore, it was not a restriction that negates or restricts insurance coverage, but rather the policy no longer applies to the incident, since the work on it had been completed. In addition, the contractor did not prove that the policy also applies to events after the insurance expired.
The court further added that the insurer's representative explained that in order to cover damages caused to third parties due to work after the said insurance has expired, insurance called "product liability" must be purchased. This insurance is a "policy in itself" and the deductible is high, as is the cost of the premium, and it was not proven that the contractor purchased this type of insurance.
End of the matter
The court accepted the lawsuit and the notice to the third party and ordered the restaurant and the contractor to compensate the plaintiff (the guest at the restaurant who was injured) in the amount of 38,000 NIS, plus legal costs and attorney fees.
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