France

Question 1

Strict liability for things

Answer 1

1. Thing - Must be material (not snow)
2. Act of a thing - Thing is somehow involved
   - Assumed if there is contact between a moving object and the victim
   - For immovable, the victim must show that the (position of the) thing was abnormal
3. Guardien - Does not need to be the legal guardian, only factual
4. Causation
5. Damage
6. Defences?
   - External cause (force majeure, act of a 3rd party)
   - Contributory negligence

Question 2

Strict Liability for people

Answer 2

1. Check list of relationships - Art. 1384 CC
2. Blieck case requirements:
   - Organise
   - Control
   - Direct
3. Defences? Nope

Question 3

Fault Liability

Answer 3

1. Faute:
   - Apply ‘bon père de famille’ standard
   - Breach of a statutory rule
   - Breach of a pre-existing obligation (fi. Game rules)
   - Non-intentional criminal fault
2. Causation
3. Damage

• Omissions are covered by 1383.
• Only apply fault liability if strict liability has failed
• Pure omissions - French Penal Code punishes intentionally abstaining from helping - It will fall under ‘breach of a statutory rule’ (223-6 Criminal Code)
• There is no element of a duty of care because French law imposes a general duty of care.

Question 4

Public Body Liability

Answer 4

1. Public-service related fault - Public service provided the conditions for the fault
   - Both personal fault (attributed to one individual must be a civil lawsuit) and fault of bureaucracy (individual cannot be identified, must be sued in the Conseil d’État)
   - Is there discretion or is it a sensitive task? Yes (gross negligence is required) or no (simple negligence is enough)
2. Causation
3. Damage

Question 5

Strict Public Body Liability

Answer 5

1. Is the burden for an (or a group of) individual(s) disproportionate?
2. Is the damage suffered special?

Because there should be equality before public burdens.

Question 6

Damages for next of kin

Answer 6

1. There is no closed list of people who can claim damages, you can do so as long as you are close to someone
2. In some cases there is a presumption of affection

Question 7

Prenatal issues

Answer 7

1. Wrongful birth:
   - Loss of income and non-pecuniary damages if the child if born disabled
   - Otherwise no compensation
2. Wrongful life - Neither the mother nor the child can claim compensation, but they will still get compensated via a fund

Question 8

Negligence test

Answer 8

Objective test – Always compare to reasonable person

1. Probability of harm
2. Extent of loss
3. Burden of precautionary measures
4. Benefit to society
5. Knowledge/skill

Subjective test – No special treatment for mentally disabled or children

Question 9

Mental harm

Answer 9

1. Primary victims - The victim’s mental harm does not need to be a recognized mental illness
2. Secondary victims - Same as above, but the victim’s harm must be a direct and certain consequence of the defendant’s conduct

Question 10

Vicarious liability

Answer 10

1. Establish the employee’s liability:
   - 1st check if strict liability applies
   - Otherwise use fault liability
2. Establish the employer’s liability:
   - Employer-employee relationship
   - In course of employment  Within working hours
3. Defences?
   - The employee acted outside of its functions, without authorization and for a foreign purpose than those entrusted to him
   - This is a very restricted defence
   - Contributory negligence of the victim

Question 11

Traffic Liability

Answer 11

Strict liability for the driver  No contact with the car is required

Different for each victim:

1. Privileged:
   - Pedestrian, cyclist, passenger
   - Automatic compensation
   - Only intentional act and inexcusable fault are excuses but very difficult to show
2. Super-privileged:
   - Kids from 0-16 and people 70+ as well as disabled people
   - Automatic compensation
   - Only intentional act is an excuse
3. Unprivileged:
   - Other users of a motored vehicle
   - Insurance will cover
   - Defences are inexcusable fault, contributory negligence (but will only reduce liability, not negate) and intentional act

Question 12

Pencil in the Eye case

Answer 12

Strict liability for parents - Only acceptable defences are force majeure and contributory negligence

Question 13

Football players

Answer 13

No liability if:

1. Game is played according to the rules
2. Player acted as a reasonable person

Question 14

Gabillet v. Noye

Answer 14

Minors can be held liable

Question 15

Ouradi v. Gabet

Answer 15

Inexcusable fault is extremely difficult to use as a defence for road traffic liability

Question 16

La Cité

Answer 16

Vicarious liability - Employer is not liable if employee acted (cumulative):

1. Outside the scope of employment duties
2. Without authorization
3. For purposes foreign to his task

Question 17

Papon case

Answer 17

Liability of public bodies - Personal faute arises if you do more than instructed

Question 18

Madame Nahiba

Answer 18

State liability can arise for gross negligence committed by the banking Commission