Cour de Cassation, Second Civil Chamber, (pourvoi 03-19.705) Bull.civ.2005.II no. 158, p. 141
16 June 2005
Translated by:
Tony Weir
Professor B. S. Markesinis

When the warden of a hostel for old people obtained cheques in her own favour from a resident by persuading her that she, the warden, could by altering her papers save her from the alleged risk of expulsion from the hostel by reason of her age, the court of appeal was right to hold that the warden whose duties put her in daily contact with the residents in the privacy of their rooms had not acted outside the scope of her employment and that the body managing the hostel remained liable, and that the fact that the warden had been convicted of abusing the weakmindedness of the resident did not necessarily mean that she had acted outside her functions in the sense of article 1384(5) Code civil;

Given, according to the judgment under attack (Lyon, 10 September 2003), (1)  that on 1 April 1982 Mme Monteux, née Quetant,  born on 15 August 1905, rented an apartment in a hostel for old people managed by the Association pour la gestion de la maison de retraite La Roseraie (l’association), (2) that between January 1994 and November 1996 she signed seventy-four cheques in favour of Mme Bourgeois, warden of the hostel, or her nominees, after Mme Bourgeois had led her to believe that she was liable to be expelled from the hostel by reason of her age but that she, Mme Bourgeois, could prevent this by altering her papers, (3) that on 14 June 2000 a criminal court convicted Mme Bourgeois of exploiting the weakmindedness of Mme Monteux, imposed a custodial sentence and adjudged her liable to pay the partie civile the sum of FF 434,900 as compensation, and (4)  that Mme Monteux’s curator, the Union of Family Associations for the Department of Sâone-et-Loire, joined after the death of Mme Monteux on 28 August 2002 by her heirs, claimed damages under article 1384(5) Code civil from the association which managed the hostel;

On the association’s complaint:

Given that the association criticises the decision for holding it liable, as the employer of Mme Bourgeois, to pay the sum of  €48,202.67 to the heirs of Mme Monteux by way of damages, whereas, according to the association,

1. an employer is not liable if his employee acts outside the scope of his employment without authority and for purposes alien to his tasks, as may well be the case although his employment provided him with the occasion of causing the harm, and even if the employee’s manner of acting towards the victim could be objectively related to what he was employed to do; here in fraudulently extracting cheques from one of the residents by saying she would misrepresent the facts to the administration, Mme Bourgeois was doing something entirely foreign to her employment as warden which could not be regarded as even an abusive exercise of the powers normally accorded to the warden of a building with no power of administration or management of the residents’ finances, so the court below violated article 1384(5) Code civil in holding that Mme Bourgeois was not abusing her role simply because her employment put her in relation with the victim,

2. when an employee intentionally, spontaneously and without the knowledge of the employer commits, and is convicted of committing, an offence which damages a third party this is necessarily an abusive departure from the scope of his employment, and here on 14 June 2000 Mme Bourgeois was convicted in Bourg-en-Bresse of extorting money from Mme Monteux and sentenced to a year’s imprisonment, suspended for ten months if of good behaviour for three years, the trial judge himself observing in stating these facts that the association had not authorised Mme Bourgeois to act in a manner so damaging to itself, so that in nevertheless denying that she had acted outside the scope of her employment the court below did not draw the correct legal conclusions from these facts and so violated article 1384(5) Code civil;

3. a victim who was aware that an employee was abusing his functions cannot hold the employer vicariously liable, nor can those suing on her behalf, and here  the mere fact that the pressure exercised by the employee frightened the victim into believing in the employee’s ability to act to her advantage did not show that the victim was unaware of such abuse; the judge at first instance having accepted that Mme Monteux was certainly aware of Mme Bourgeois’s abuse of her functions, the court of appeal’s simple statement that Mme Monteux’s fear of expulsion was “fanciful” and that she believed in a “non-existent ability” in Mme Bourgeois to prevent her expulsion by altering her papers did not show that Mme Monteux was unaware that Mme Bourgeois was abusing her functions, so  its decision lacked the statutory basis required by article 1384(5);

4. since an employee who occupies a service flat on the employer’s premises does not render his employer vicariously liable for torts committed outside working hours, there must be clear proof that the torts were committed during the hours of employment; here Mme Bourgeois was on the premises every day of the year, including days of rest, and it was far from clear at what time of the day or night she abused her influence and extorted the cheques, for  the only reason the court gave for its dubious assumption that all Mme Bourgeois’s misconduct occurred during working hours was that at the beginning and the end of her day’s work she was able to enter  the residents’ rooms (there were thirty of them) to hand out medicines, which falls far short of the clear proof required to render the employer vicariously liable for her being under orders, so that once again the decision lacked legal basis under article 1384(50 Code civil;

But given that the court found that Mme Bourgeois’ job, in bringing her into regular daily contact with the residents in the privacy of their rooms, enabled her to learn of Mme Monteux’s nocturnal incontinence,  to instil in her the fanciful fear of expulsion in view of her age and incontinence, to claim an ability she did not possess to prevent such expulsion and to have her draw cheques in her favour or in favour of those close to her, all of this during the performance of her duties; and the fact that the deceptive conduct of Mme Bourgeois, which was all of a piece, was in conflict with the interests of her employer is not enough to take it outside the scope of her employment, which put her into a relationship with the residents,  and enabled her to discover the psychological and physiological debilities of Mme Monteux and to persuade her that she could prevent her expulsion from the hostel;

Given that the fact that Mme Bourgeois was guilty of the crime of exploiting the especially vulnerable Mme Monteux does not necessarily  imply that she was acting outside the scope of her employment under article 1384(5), the court below was entitled to hold that Mme Bourgeois did not go beyond the functions entrusted to her and that the association could therefore not escape liability;

Accordingly this complaint is unfounded.

On the sixth ground of complaint:

Given that the association criticises the decision holding it liable as Mme Bourgeois’ employer to pay the heirs of Mme Monteux the sum of €48,202.67  whereas, according to the association, even if the employer’s vicarious liability is not subsidiary to that of the employee – for the victim can certainly sue the employer without having first sued the employee and can sue them both at the same time so as to obtain a judgment holding them liable in solidum – yet once the victim has sued and obtained judgment against the employee personally, he cannot, having declined to execute that judgment, bring a separate action against the employer in a different court in order to have it held vicariously liable; here Mme Monteux did not try to obtain payment under the judgment of the criminal court holding Mme Bourgeois liable for the full amount of the cheques she had signed, although Mme Bourgeois had lodged the full sum with the general treasury at the start of the proceedings,  but went instead to a different court and brought a separate action against the employer, conduct which the court’s refusal to evaluate, merely observing that the liability of the employer is not subsidiary to that of the employee in the sense that the claimant need not sue the employee first, unless the employer has some privilege to reduce his liability, amounted to a violation of article 1384(5) Code civil and article 31 of the New Code of Civil Procedure;

But given that the suit against the association is based on a ground different from that against Mme Bourgeois, and given that the decision below was right to hold that the liability of the employer is not subsidiary to that of the employee and that the claimant here was not bound to sue Mme Bourgeois first, in the absence of some privilege vested in the employer, and that the sums paid by Mme Bourgeois have been taken into account in the judgment against the association;

From which it follows that the complaint is unjustified;

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