Given that according to the judgment under attack (Paris, 29 January 1993) Nelly Morice, then aged four, was injured in the right eye while playing on 25 September 1984 in the courtyard of the private school St.-Vincent-sur-Oust (Mayenne) with one of the plastic hoops commonly used in the school for psychomotor exercises; that this hoop had been bought by the school from the company of Lafoly and de Lamarzelle Co. which had ordered them in 1982 from the Armand Colin and Bourrelier Co.; that the last named company had had hoops of this type made first by the Omniplast Co. and then, after a takeover, by its successor, the Planet Wattohm Co., which advertised them in their catalogue under the title “movement and rhythm”; that the Tribunal de grande instance held the school and the Armand Colin and Bourrelier Co. jointly and severally liable and ordered them to pay certain sums of money to Nelly’s parents, her statutory representatives; that it dismissed the claims against the Wattohm Co.; that the decision under attack confirmed the judgment holding the school and the Armand Colin and Bourrelier Co. liable, but modified it by dismissing the claims of the Morice parents against the school and its liability insurer and holding the Planet Wattohm Co., now Wattohm SA, liable to indemnify the Armand Colin and Bourrelier Co. in respect of the judgments against it.
On the the application for review brought by the Armand Colin and BourrelierCo.; first limb:

Given that the company impugns the decision holding it liable for the consequences of the accident to Nelly Morice due to the manufacturing defect in the hoop whereas, as distributor, it had, as the decision below confirms, obtained the approval of the Centre national de documentation pédagogique for its distribution and therefore could not be held to have been at fault in failing to proceed to a detailed examination of the hoop, whose defect, entirely attributable to the manufacturer, was not apparent and was not covered by standards later introduced; that thus the decision did not draw the proper legal consequences from its factual findings and thus infringed article. 1382 Code civil;

But given that a party who sells goods as part of its business is bound to deliver products free from any manufacturing defect which renders them dangerous to person or property; that he is answerable to third parties as well as to his buyer; that the unreviewable finding of the court of appeal that by reason of their very design the hoops were apt to cause an accident is in itself sufficient to justify their decision; from which it follows that the application for review is baseless;

On the Planet Wattohm Co.’s application for review, second limb: Given that the company impugns the judgment below for holding it bound to indemnify the Armand Colin and Bourrelier Co. in respect of the judgments against it whereas, according to the applicant, when one party liable jointly and severally is subrogated under article 1251 (3) Code civil against another such party the latter is liable only for his own part, so that if two joint debtors are both at fault contribution between them takes place in proportion to their respective faults; that therefore in holding the Planet Wattohm Co. bound to afford a complete indemnity to the Armand Colin and Bourrelier Co. in respect of the judgments against it while holding that the latter was guilty of a fault causative of the victim’s damage, the court of appeal misapplied the given text;

But given that the Court of Appeal held that the defect in the hoop which injured Nelly Morice was due entirely to the Planet Wattohm Co. which alone devised and produced the hoop, that it was correct to deduce that as it was bound to sell to the Armand Colin and Bourrelier Co. hoops which were free from any defect apt to render them dangerous to person or property it was also bound to indemnify that company against any judgments against it for damages in respect of the harm thus caused to Nelly Morice; that the plaint is therefore baseless;

On the applications of the Planet Wattohm Co. (second limb), of the Armand Colin and Bourrelier Co. (second limb) and of the Morice parents:

In view of article 1135 and 1147 Code civil:

Given that an educational establishment which is bound by its contract to ensure the safety of the pupils entrusted to its care is liable for harm caused to them not only by its fault but also by the things it provides in performance of its contractual obligation; -- Given that the judgment below exonerated the school on the ground that it was not shown that the accident was due to any fault on the part of the school in the performance of its contractual obligations; -- Given that in so deciding the court below violated the texts mentioned;

For these reasons, QUASHES the decision below in so far as it dismissed the claims of Mr. and Mrs. Morice and the Armand Colin and Bourrelier Co. against the school of Saint-Vincent-sur-Oust and its liability insurer ...

This note on subsequent developments reflects the legal situation as of February 2004.

Civ 1, 17 January 1995: This judgment marks the unification of the regimes for reparation of harm due to a product, abrogating in this particular area the principle of non-concurrence of the two categories of liability. The Law of the 19 May 1998 relating to liability arising from defective products, introducing into French law a European Directive of the 25 July 1985, adopts this solution which was elaborated by the Cour de cassation in 1995, applying this Directive anticipatively. In the same way, a judgment of the 28 April 1998 (Civ 1, Bull no 158) has reaffirmed, in the case of infection by the AIDS virus when a blood transfusion was given, that "every producer is liable for harm caused by a defect in his product, just as much to victims by ricochet as to immediate victims, without any need to distinguish between contracting parties or third parties". The contrast between the two types of liability disappears from now on as far as liability arising from defective products is concerned, in favour of a legal obligation which is neither specifically delictual nor specifically contractual.

Civ 1, 17 January 1995: The solutions put forward by this judgment mark the principle of abrogation non-concurrence of the two categories of liability, concerning the liability of the producer and/or the seller regarding defective products sold by him. This is a solution which has since been confirmed by the Cour de cassation (Civ 1, 15 October 1996, Bull no 350: "The manufacturer, like the professional seller, is bound to deliver products free from any default of such a nature as to create a danger to person or property" and 28 April 1998 Bull no 158: "Every producer is liable for harm caused by his product just as much to victims by ricochet as to immediate victims, without any need to distinguish between contracting parties or third parties") before being repeated by the Law of 19 May 1998 relating to the liability for defective products, introducing Directive 85/374 of the 25 July 1985 into French law. Not only is the manufacturer bound to deliver to the buyer a product free from any default of such a nature as to create a risk to person or property; this obligation extends to third parties since this judgment of the 17 January 1995.

Translation by Raymond Youngs

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