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Strict Liability Notes

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STRICT LIABILITY I.

STRICT LIABILITY WHEN DEALING WITH LIABILITY FOR OTHERS a. FR

FR is very willing to resort to strict liability when dealing with liability for damage caused by another

Article 1240(5) creates a form of responsabilité de plein droit for a commettant for the torts committed by her préposé in the course of the functions for which she was employed.

On two separate occasions Cour de Cassation has transformed what was thought to be a statutory presumption of fault into strict liability:

i. Judgment in Blieck Cour de Cass held that Article 1240(1) creates a general principle of strict responsibility for others for the torts of persons under one's control or whose activities one's control Liability based on the fact that 1) The association had accepted the responsibility to control the life of an handicapped person 2) There was an increased risk of harm to the public where control not properly exercised in the case of a mentally handicapped person

ii. Evolution of parental liability Art 1240(7) was long understood as allowing parents to escape liability by showing absence of fault but the Cour de Cassation, in Bertrand (1997) held that it only provided for the defence of force majeure and turned parents' liability into another responsabilité de plein droit.

Regarded as an expression of a form of garantie familiale aimed at the protection of victims

Viney & Jourdain have argued that the effectiveness of parents' liability has exclusively depended on families taking out private liability insurance.

New liability intends to offer the victims a D with deep pockets, e.g. in Blieck by finding liable a social institution, most of these being insured against the consequences of their civil liability FR's approach to fault is in line with where the insurance lie - the parents

b.EN EN has exhibited a marked reluctance to make a person liable for the injuries caused by another when that first person is not at fault.

Liability under negligence can occur but will be based on fault - Home Office v Dorset Yatcht: officers held liable for permitting young offenders under their control to escape and cause damage onto a boat.

The important exception to this general principle is vicarious liability

An ER will be strictly liable for torts committed by their EEs in the course of their employment

Non-delegable duties have also been used to render an employer personally liable for the negligence of an independent contractor.

Primary liability does not mean that there need to be any actual fault on the part of the ER, as in Woodland v Swimming, and as such can be described as a form of strict liability.

Liability of parents and educational authorities remains fault-based

Parents or educational authority can only be liable for their own negligence, by furnishing the child with a dangerous object (Bebee v Sales) or failing to adequately supervise the child (Carmenthenshire CCl v Lewis)

c. DE DE strongly favours fault but is willing to use a reverse burden on it in the form of a presumption and a high standard Presumption of fault

In cases of vicarious liability for EEs (§831) and liability of parents and guardians for children and disabled adults (§832), fault of the person under a duty to control the wrongdoer's conduct will be presumed o Under §832 liability falls on the part of parent in respect of their children as a result of their Aufsichtspflichtige, their legal duty to supervise minors It will be left to them to present exculpatory evidence. o ER can evade liability by proving absence of fault in respect of the selection and supervision of the EE or by showing absence of causation - 831

Although there is a possibility of exculpation in DE the methods by which the DE courts allow this to be excluded suggest that they are not comfortable with it:

Bus Driver (1969): courts have interpreted these exceptions strictly and set the standard of care very high so as limit the possibility of exoneration In addition, courts have sought to render the ER directly liable for breach of its organisational duty (Organisationpflicht) under §823(1) or if a corporation strictly liable for the acts of its organs under §31 o They have also relied on §278 provides an alternative basis for liability which the ER cannot avoid for non-performance of contractual obligations

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