Cour de cassation, Deuxième Chambre civile

The Court:

Given that it appears from the decision attacked (Dijon, 3 March 1954), confirming the decision below, that on 6 January 1952 Kintzler was hunting deer along with Paul and Jean Chauffant, Nicolas, Roger, Cudel, Litzinger and Thiriet and, and that about 4 p.m. when the hunt was over, Kintzler decided to go home and the others agreed to fire a salvo of shots to mark the end of the hunt, the result of the salvo being that Kitzinger, still in the vicinity, was hit in the right eye and lost nearly all use of it; given that it was stated by one of the seven that they all fired simultaneously and by another that the salvo was like a burst of machine-gun fire;

Given that in the victim’s suit the Court of Appeal held them all seven defendants liable on the basis that “the true cause of the accident was their concerted action in participating in the salvo, not a normal incident of a hunt, with negligence and ineptitude which was attributable to them all”, and that the personal joint liability of the defendants was thus correctly determined without any further need, as contended by the appellants, to determine which of them fired the shot which caused the injury;

Given that in fact if several individuals proceed to a concerted action or even one which results spontaneously from common excitement, they may have to share the responsibility for its harmful consequences, whether they result from a single act in which they all participated or a number of acts so connected by intention or execution as to be inseparable; given that it is thus immaterial, since they are superfluous, that the reasons given below relating to the liability of the gardien of a thing are erroneous and rightly criticised by the appellants, and that the decision below is justified in law;

For these reasons DISMISSES the applications for review.

Subsequent Developments

See Jurisclasseur “Responsabilité Civile”n Fasc. 160 already cited: “When damage has been caused by an anonymous person, the author thereof is unknown and the proof of a chain of causality is impossible to establish with certainty, even if this person is a member of a group all of whose members are identified. The difficulty caused by such circumstances arises specially in the case of hunting accidents. For a long time the courts applied rigorously the rules relating to the proof of a chain of causality: since the victim could not establish this proof, his claim was refused. (Civ., 29 September 1941). Certain writers were struck by the injustice of this doctrine, and came to criticise these decisions as being contrary to equity. The courts then searched for different technical means to avoid leaving the unfortunate victim without indemnification. First of all, it was the notion of “collective fault” or “common fault” which was imagined in order to condemn jointly the members of the group. Hunting accidents allowed the courts to apply this notion in several cases (Civ.2, 18 May 1955: JCP 1955, II, 8793 and on remittal (“renvoi”) CA Bourges, 5 February 1957, D. 1957, p. 330 – See also Civ.2, 5 June 1957, D 1957, p. 493). This doctrine has even been maintained after the entry into force of the Law of 11 July 1966 extending the jurisdiction of the Guarantee Fund to hunting accidents when the author is unknown. Thus, the Court of Cassation (Civ.2, 19 May 1976, Bull. II, No. 163) rejected several applications for review brought against a decision holding jointly liable twelve hunters. The supreme court reproduced in its decision the findings of the lower court according to which “the accident had its cause in a common action arising from a plurality of connected acts, which, because of their coherence of conception and execution, could not be separated”. The court then approved such findings for having decided “the collective liability of the hunters in the suit, who, in their common action which resulted in damage, all committed faults whose elements were inseparable”.

Note: Certain writers question the desirability of maintaining this doctrine. See Jurisclasseur “Responsabilité Civile et Assurances” fasc. 511-2 (Paulette Veaux-Fournière and Daniel Veaux, 1996): By finding all the hunters of the same group collectively liable, a court prevents recourse to the Guarantee Fund (Civ.2, 19 May 1976: Bull. II, No. 163). The question arises whether it would not be simpler, rather than sticking together fragile legal constructions, to go back to the old doctrine, by finding the members of the group not liable as long as it has not been possible to determine who fired the shot causing the damage, freeing their insurers, and inviting the victim to claim from the Guarantee Fund.” Nevertheless, no other decision seems to have been handed down by the Court of Cassation since then on the question of the collective liability of huntsmen in case of an accident. Finally, it is important to mention that, by two decisions also handed down by the 2nd Civil Chamber on 19 may 1976, that Chamber, on the basis of Article 1382 of the Civil Code, annulled for lack of legal basis two decisions (Bull.No.165 and 166) which had found collective liability without checking whether one of them in fact used the type of bullet which had wounded the victim (No. 165) or whether one of them was not, at the moment of the accident, in a position which would put the victim out of the range of his rifle (No.166).