Cour de cassation:

On the sole ground of application for review:

In view of article 1384(1), taken with article 1315, Code civil:

Given that the custodian (gardien) of a thing which causes damage is exonerated from liability only if he proves that it was impossible for him to avoid such damage by reason of the operation of an external cause which cannot be imputed to him;

Given that according to the decision under attack, which reversed that of the court of first instance, Mlle Tauzia, now Mme Pouyanne, was injured by the explosion of a bottle of cider in the shop where she was employed; that she sought damages from the Volcker company which had supplied the cider, which in its turn sought an indemnity from the B.S.N. company, the manufacturer of the bottle, and the Centre Distributeur de Gros which delivered the bottle to the shop; …

Given that in dismissing Mme Pouyanne’s claim based on article 1384(1) Code civil the decision states that the only evidence that the explosion of the bottle was spontaneous was her own testimony, the other witnesses not having been present; that in so deciding when the decision itself shows that the harm resulted from the explosion of the bottle of cider which had an intrinsic dangerous propensity and that it was therefore not for Mme Pouyanne to show that the harm was due to anything outside the bottle, the court of appeal reversed the burden of proof and violated the texts cited above;

For these reasons QUASHES and ANNULS the decision of the Court of Appeal of Pau dated 17 May 1979 and remands the matter to the Court of Appeal of Toulouse.

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

Civ 2, 20 July 1981: : It is for the custodian (of the structure) of a thing which has caused harm to prove that this was due to an external force. The general principle follows from a judgment of the 13 February 1930 : the custodian can only exonerate himself from his liability by proof, which is for him to bring, of pure accident (cas fortuit), force majeure or an external cause which is not attributable to him. The distinction between custody of the structure and custody of the handling (case law taking the view that, depending on the individual case, the custodian of the structure can be the owner of the thing which has caused the damage, or its manufacturer or even, more rarely, a third person) only applies (Civ 2, 20 November 2003, Bull no 355) to "things endowed with a dangerous dynamism of their own or with an internal dynamism and affected by an internal defect". Nevertheless, a school of legal writers considers that this distinction has become obsolete since the entry into force of the Law of the 19 May 1998 as the custodian of the handling [of the thing] is generally assumed also to be custodian of the structure. The dissociation only occurs in exceptional cases to mitigate the strictness of the principles which govern the determination of the custodian responsible for the harm caused by a thing and avoid a "judicial marathon" for the victim of the harm for the determination of the person responsible. Hence the solution adopted by the present judgment setting up a (simple) presumption regarding things endowed with a dynamism of their own. If it is not possible to determine the exact origin of the harm, its cause is assumed to be due to an inherent defect in the thing. Consequently, and unless there is proof to the contrary, the custodian of the structure is the person who is presumed responsible for it.

Translation by Raymond Youngs

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