• Of money

Elevator Disaster: The criminal case was closed, but the civilian was only opened

The families of Dean Shoshani and Stav Harari were informed this week that the criminal proceedings were closed, and now they have turned to the civil sector, where the obligation to prove the damage is much lower.

The lawsuit could cost millions, but what are the chances of winning it?

Tags

• disaster

• flood

Adv. Assaf Oziri

Friday, 19 March 2021, 00:04 Updated: 00:17

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This week, the decision of the Tel Aviv District Attorney's Office to close the criminal case regarding the elevator disaster was published.

As you may recall, this is an unfortunate tragedy in which in January 2020 the late Dean Shoshani and the late Harari Hari were killed in a drowning accident in an elevator in the parking lot of their home in Tel Aviv. The drowning incident occurred on a rainy and stormy day, flooding the deceased's home. become a death trap.

families filed, according to reports, compensation claim alleging that the event of death caused by the negligence of the various elements: Fire and rescue Authority, building owners, the municipality and the company "Schindler Nehushtan" elevator manufacturer.

A person who has lost a loved one can, whether as a dependent on the deceased in his life or as an heir, file a claim for damages against the pest that caused the death.

According to Ettinger's rule and later rulings, compensation consists of a number of "heads of damage": pain and suffering of the deceased, shortening of life expectancy of the deceased, help father and husband given by the deceased to his children and wife, loss of earnings "in the lost years", burial expenses, memorial and mourning.

The "loss of earnings in the lost years" was intended to quantify the savings that the deceased would have saved during his life and would have been added to the inheritance he would have left at his death.

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A terrible tragedy.

Is it possible to compensate the families?

Autumn Harari and Dean Shoshani (Photo: courtesy of the family)

In addition to the deceased's claims, if a first-degree relative has significant mental injury and was a direct witness to the accident or learned of it shortly after the incident, he may even be recognized as a secondary victim under the al-Suha rule, and then he will be entitled to additional monetary compensation.

Claims of this type, especially in the case of two young and talented people, can reach compensation amounts of millions of shekels in the circumstances of the case, the compensation for the damage of pain and suffering and shortening the life expectancy of each deceased may reach the maximum threshold of NIS 1 million for each deceased.

In addition, the compensation for "loss of earnings in the lost years" can reach NIS 300,000 for each deceased person.

Regarding burial expenses and mourning, it is usually customary to award about NIS 15,000.

In other words, in total, the compensation for the death of each deceased may reach a cumulative amount of NIS 2,315,000. In

order to recognize the right to compensation, one must first prove the liability of those causing the damage.

• The elevator company - if it is proven that it installed a non-standard elevator in the building (without a flood sensor that would cause it to open automatically) or if you do not maintain the elevator during the years since the building was built.

  In this case, it was also alleged that a technician from the elevator company arrived at the scene, but did not have the appropriate equipment and left without assistance.

  This too can be a good argument that indicates the negligence of the elevator company.

• Building owners - if it is proven that there is no video that the elevator installed in the building they own is an elevator that meets all the existing standards or if they have not installed a ramp to prevent flooding in a way that allows the parking lot to be flooded.

• Tel Aviv Municipality - if it is proven that the water receptors on the street where the accident occurred were not cleaned before the winter or if it is proven that the volume of receptors and pipes that were supposed to move the water from the street was unreasonable in a way that did not allow rainwater to be stored and drained as required.

• Fire and Rescue Authority - if it is proven that the fire station was late or arrived without the appropriate equipment.

Adv. Assaf Oziri (Photo: Yachz)

On the question of liability we discuss two separate and cumulative issues: negligence and the question of causation.

It is not enough to prove that one factor or another did not perform its function, but in addition it must be shown that if it had acted reasonably, the damage would have been avoided.

Closing the criminal proceedings means that the prosecution believes that there is not enough evidence to indicate a reasonable chance of conviction.

A criminal conviction of a person requires an evidentiary threshold of above all reasonable doubt.

It is clear that conducting a criminal proceeding at the conclusion of which any of the persons responsible for the incident were convicted would have facilitated the prosecution.

This would have created for plaintiffs the option to file a "trailing civil lawsuit," in accordance with section 77 of the Courts Act.

In this type of lawsuit, the question of liability, which has already been decided in the criminal proceedings, has not been discussed at all and the court goes on to assess the extent of the compensation due to the plaintiffs.

However, closing the criminal proceedings does not close the door on the compensation claim.

It should be remembered that the evidentiary standard required in civil proceedings is lower than that required in criminal proceedings.

It is sufficient to prove the liability of the defendants in the balance of probabilities, i.e. over 50%, to cause them to be charged with monetary compensation.

The civil prosecution court has the option to hear questions that were not discussed at all and should not have been heard in the criminal proceedings as they have no potential for criminal conviction.

Violation of prudent obligations, for example, which does not entail criminal liability but can lead to the imposition of tortious liability on such and other entities.

The element of the conceptual duty of care in tort law empowers the court to decide the question of principle concerning the scope of liability in tort, taking into account the interests of the parties and the type of damage caused.

Imposition of criminal liability, on the other hand, is conditional on the question of whether this or that conduct is of an anti-social nature that requires a punitive response on the part of society.

The fact that the tort law concluded that in the context of the type of relationship between the tortfeasor and the tortfeasor, it is appropriate to impose the financial burden created as a result of the tort on the tortfeasor, does not require that tortfeasor be held criminally liable.

Therefore, in order to impose such liability it must be provided that a mental element of negligence can be attributed to the accused.

A similar case in which a tort claim was conducted against a defendant who was decided not to prosecute criminally and even won a disciplinary proceeding was heard in Tel Aviv.

1714/04 Estate of the late Tomer Naim v. Keiner Yizhar et al. In this proceeding, the question of the responsibility of police officers for the death of a person after whom they were pursued was asked.

The court ruled that one of the police officers should be held liable in the compensation claim, even though the same police officer was not prosecuted and even wins the disciplinary proceedings against him because of the doubt.

The author owns a law firm that deals with personal injury claims, Social Security and medical malpractice.

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