Cour de cassation

The COURT:

On the first ground of the application for review;- Given that, according to the judgment under attack, which varied the decision below, Michel Baier, aged nine, and Bernard Serafinowski, aged eleven, were kicking a small ball around on a piece of waste ground when Michel Baier missed the ball he was trying to kick and sent flying into the air a clod of earth which struck his playmate in the left eye and hurt him, and that the father of the victim sued Baier’s father for compensation for the damage caused to his son;

Given that the appellant crticises the Court of Appeal for holding that young Baier’s ineptitude constituted a fault without asking whether he should not be wholly or partially exonerated in view of the fact that the game involved risks which the victim must be taken to have accepted;

But given that having found that by misdirecting his kick and projecting in the direction of his playmate not the ball but a clod of earth the Court of Appeal was entitled to hold that this ineptitude on the part of young Baier constituted a fault; and given furthermore that acceptance of a risk is not a defence to a claim in quasi-delict, the decision below stating correctly that there was no fault on the part of the victim;

Whence it follows that this ground of complaint is not well-founded;

On the second ground: Given that the decision below is criticised for holding Baier’s father liable under article 1384 (4) and (7) Code civil when “it is not usual to supervise children aged nine to eleven playing football on waste ground, no danger being normally foreseeable”;

But given that the judgment below, having held that young Baier, nine years old, was entirely unsupervised while playing football on waste ground with a small ball, concluded that the father of the child had been found guilty of negligence in not supervising his son, and that the accident was foreseeable, and that the judges on appeal were entitled, without incurring the appellant’s criticisms, to conclude that the father had failed to establish that he could not have prevented the act which gave rise to liability;

From which it follows that this ground of complaint is not well founded.

For these reasons DISMISSES the application for review.

Subsequent Developments

Doctrine upheld. See Civ.2, 20 April 2000, Bull. no. 66: “A parent can only escape full liability for damage caused by an infant in class to his/her teacher by proving force majeure or that the injured party was at fault, and the presumption of liability of article 1384, para. 4, of the Civil Code, is not rebutted by the mere fact that the child was in the school premises at the time of the events”, and Civ.2, 2 December 1998, Bull no. 292:“Only force majeure or the injured party’s fault can mitigate the full liability of a father and mother for damage cause by their infant child living with them (…)”. And, on the acceptance of risk: Civ.2, 28 March 2002, published: “A Court of Appeal which, in order to reject an action for damages for injury incurred by a player during a team game based on baseball, holds that, by taking part in this game, the injured party had accepted the risks it entailed, whereas the injury occurred during an improvised game and not within the framework of a sports competition”, fails to give legal basis to its judgement.

Doctrine upheld. See Civ.2, 20 April 2000, Bull. no. 66: “A parent can only escape full liability for damage caused by an infant in class to his/her teacher by proving force majeure or that the injured party was at fault, and the presumption of liability of article 1384, para. 4, of the Civil Code, is not rebutted by the mere fact that the child was in the school premises at the time of the events”, and Civ.2, 2 December 1998, Bull no. 292:“Only force majeure or the injured party’s fault can mitigate the full liability of a father and mother for damage cause by their infant child living with them (…)”. And, on the acceptance of risk: Civ.2, 28 March 2002, published: “A Court of Appeal which, in order to reject an action for damages for injury incurred by a player during a team game based on baseball, holds that, by taking part in this game, the injured party had accepted the risks it entailed, whereas the injury occurred during an improvised game and not within the framework of a sports competition”, fails to give legal basis to its judgement.

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