Cour de cassation

The Court:

In view of articles 1382 and 1384

Code civil;

Given that if the lower courts are sovereign as to findings of fact, it is for the Court of Cassation to determine whether the facts so found constitute in law a fault and involve the liability of those responsible, and given that in this case the Court of Appeal dismissed the appellant’s claim for damages on the ground that he was the victim of his own imprudence;

But given that the Court of Appeal’s findings of fact disclose that Pech was guilty of a fault contributing to the occurrence of the accident, and that he therefore could not be entirely exonerated from liability by the imprudence of the victim;

Given that in holding as it did the decision under attack has misunderstood the legal consequences of the facts found and has thus violated the texts mentioned;

QUASHES the decision below.

Subsequent Developments

Doctrine upheld. See Civ.2, 20 January 1993, Bull. no. 21: “The lack of attention and carelessness of the injured plaintiff show sufficient characteristics of unpredictability and irresistibility to excuse the actual possessor (“gardien”) of a glass door which smashed in contact with the injured plaintiff, as it was not shown that the door was either faulty or failed to conform to security norms” (from which flows the absence of fault on the part of the possessor, the judgement under attack specifying that “the accident was caused entirely by the victim’s lack of attention and carelessness”). If the victim’s fault is qualified as “unpredictable and irresistible”, the possessor will be totally excused from any liability. If, on the other hand, this fault (in this case, the fault of carelessness), was not reasonably (un?)predictable (note: the original has “prévisible”, but this does not make sense in the context.) and avoidable, the courts will not excuse the possessor (hence the upholding of the doctrine established by the judgement of 28 February 1910, since his responsibility remains involved), but, on the other hand, they will reduce the damages awarded to the victim, in view of the fault he/she committed. The position is the same under article 1382, a judgement of 8 July 1976 (Civ.2, Bull no. 241), holding that: “A party whose fault has caused damage is bound to make complete reparation to the injured party or his successors, a fault by the injured party being the only factor able to partially diminish the tortfeasor’s liability, in cases where such fault has contributed to the damage”.

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