Cour de cassation

The court:

In view of article 1385 Code civil;

Given that the liability laid down by this article rests on a presumption of fault on the part of the owner of the animal which caused the damage or on the person using the animal at the time of the accident, and that this presumption is not rebutted except by proof either of cas fortuit or of a fault committed by the injured party;

Given that in the case in hand the judgment establishes that the damage caused to Montagnier came from the fall of flints knocked off the top of a wall by a mule belonging to Leydon and under Leydon’s control;

Given that the Court of Appeal absolved Leydon from liability for the harm by simply declaring that he was not negligent or imprudent or at all at fault with regard to the accident that befell Montagnier without specifying any fact which could rebut Leydon’s liability;

Given that in so holding it violated the terms of article 1385;

For these reasons QUASHES the decision below.

Doctrine maintained. See in particular Crim., 01October 1997, Bull. No. 316: “If, pursuant to Article 1385 of the Civil Code, the owner of an animal is liable for damage caused by the latter, he can rebut that presumption if he proves that the damage resulted from an unforeseeable and irresistible act by a third party”, and Civ.2, 15 March 2001, Bull. No. 55: “Pursuant to Article 1385 of the Civil Code, liability for damage caused by the joint acts of two animals falls onto the owner of each of the two animals, unless one or the other proves that his animal was not involved in causing the damage, and exonerates himself of that liability by proving the existence of an external, unforeseeable and irresistible act.”

See Jurisclasseur “Civil Liability”, Fasc. 151-1 and 2: As early as 1885, the Court of Cassation decided that proving the absence of wrong (“faute”) on the part of the person responsible for a thing did not free him of liability: the liability laid down by Article 1385 “is based on the presumption of wrong (“faute”) on the part of the owner of the animal which caused the damage, or on the part of the person using it at the time of the accident…this presumption can only be rebutted if it can be proved either that an Act of God occurred or that the injured party committed a wrong (“faute”)”. (Civ., 25 October 1886). Articles 1384, paragraph 1 and 1385 contain a rule of principle: the person in full possession (“gardien”) of an object, whether it be animate or not, is liable for the defective working or behaviour of the things which he has in such possession (“sous sa garde”). They also contain a rule of evidence: when a thing has been involved in causing damage, its working or behaviour is presumed to have been defective. Nowadays, this principle is a well established one. Whatever difficulties there may be in justifying it, the victim of damage caused by an animal does not need to prove the existence of a wrong (“faute”) to obtain compensation: a court which insists on that inverses the burden of proof and is in breach of Article 1385 of the Civil Code (see Civ.2, 2 April 1997, Bull. II, no 101: when there is a collision between a vehicle and a dog, the driver does not have to prove the existence of some wrong (“faute”) on the part of the person in charge (“gardien”) of the dog: the driver can simply rely on Article 1385 of the Civil Code and, circumstances permitting, it is up to the person responsible (“gardien”) for the animal to plead any available reasons for exoneration). Since the absence of wrong (“faute”) is not sufficient to free the person responsible (“gardien”) for an animal of his/her liability, freedom from liability can be the consequence only of proof by such person of the existence of an external cause (such as force majeure, the action of a third party or the victim’s behaviour). Such person will be (totally) free of liability if he/she can prove that the animal’s actions were caused by circumstances which were foreign to the animal, irresistible and unforeseeable (see Civ.2, 24 May 1971, Bull. II, no 186).

With regard to the actions of a third party, case law, after having allowed a partial exoneration of the keeper (“gardien”) in cases when the actions of such a party contribute to the damage in circumstances where it is foreseeable or avoidable (Civ.2, 15 January 1960, 9 March 1963), has now reverted to its traditional doctrine, deeming that the person responsible (“gardien”) for an animal can counterclaim against a third party whose actions were not the only cause of the damage (Civ.2, 12 March 1970: Bull II, no. 97, 7 March 1973: Bull Civ II, no. 88). This right of action continues to be available even if the third party’s actions cannot be qualified as unforeseeable and irresistible. In the relationship between the keeper (“gardien”) and the victim, a third party’s actions cannot be pleaded as against the latter, who can take action against the keeper (“gardien”) or sue the third party and the keeper at the same time, claiming their joint liability. (Civ.2, 6 November 1985: Bull. II, no. 168). The third possible reason for freedom from liability stems from the victim’s behaviour, which may have contributed towards inflicting damage on him/herself. As long as an animal has caused damage in conjunction with the victim’s actions, the keeper (“gardien”) can be freed of liability, in whole or in part. The exoneration of the keeper is only conceivable if the victim has, through his/her actions and in an undisputable manner, contributed to causing the damage. In order to be totally exonerated, the keeper must prove that the victim’s behaviour constituted a wrong (“fautif”) and, at the same time, unforeseeable and irresistible, so that it is clear that this behaviour is the sole cause of the damage (Civ.2, 12 March 1965, Bull. II no. 268, 25 January 1968, 25 January 1978 Bull. II. No. 23, 4 March 1981, 19 February 1992, Bull. II, no.53). A wrong (“faute”) which is unforeseeable and irresistible in normal circumstances is necessary for a keeper to be totally exonerated. Following the episode of the Desmares doctrine, the Court of Cassation once again started to accept the partial exoneration of a keeper. In a traffic accident involving a dog and a cyclist, the lower court had refused to free the dog’s keeper of his liability pursuant to Article 1385, on the grounds that the latter could not prove that the victim’s behaviour had been unforeseeable and irresistible. The judgement was quashed: the victim might have committed wrongs (“fautes”) which contributed to the occurrence of the damage, and which entail shared liability (Civ.2, 8 February and 20 March 1989). If an innocent action of the victim meets the conditions of force majeure, the keeper is totally exonerated: such action constitutes the sole cause of the damage. If the victim’s actions do not meet such conditions, it seems that these actions can no longer lead to a partial exoneration. True, the Second Civil Chamber has already held that a victim’s action which is not wrongful (“fait non fautif”) could justify a partial exoneration (25 June 1968, 29 April 1969, 5 May 1976). But the judgements of 6 April 1987 reversing the Desmares doctrine authorise the keeper’s exoneration only if the victim has committed a wrong (“faute”). Thus, in a decision of 1 July 1987, a Court of Appeal was overturned for “not having investigated whether it was possible that the victim had contributed, though his/her own wrong (“faute”)” to causing the damage, “which would have entailed shared liability” (Civ.2, 1 July 1987, Bull II, no. 143 – See also Civ.2, 18 October 1995: Bull. II, no. 242: the presumption of liability of Article 1385 of the Civil Code is rebutted only by proof of a wrong (“faute”) committed by the victim”).

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