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Code-based Tort Law Fault and strict liability Civil code provisions (revisions) Judicial interpretation Auxiliary statutes Products liability France and.

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Presentation on theme: "Code-based Tort Law Fault and strict liability Civil code provisions (revisions) Judicial interpretation Auxiliary statutes Products liability France and."— Presentation transcript:

1 Code-based Tort Law Fault and strict liability Civil code provisions (revisions) Judicial interpretation Auxiliary statutes Products liability France and Germany EC directive “… interpretation seems to put the power in the hands of the court, the theme of this week’s assignments”

2 Code-based Tort Law Differences between compensation for accidents in US and France?

3 Code-based Tort Law United States Contingency fees Extensive discovery Judicial passivity Jury decides facts / negligence Two-year statute of limitations (repose) France Legal aid / loser pays No private discovery Judicial fact-gathering Judge determines liability Ten-year statute of limitations

4 Code-based Tort Law United States Contingency fees Extensive discovery Judicial passivity Jury decides facts / negligence Two-year statute of limitations (repose) France Legal aid / loser pays No private discovery Judicial fact-gathering Judge determines liability Ten-year statute of limitations

5 Code-based Tort Law United States Contingency fees Extensive discovery Judicial passivity Jury decides facts / negligence Two-year statute of limitations (repose) France Legal aid / loser pays No private discovery Judicial fact-gathering Judge determines liability Ten-year statute of limitations

6 Code-based Tort Law United States Contingency fees Extensive discovery Judicial passivity Jury decides facts / negligence Two-year statute of limitations (repose) France Legal aid / loser pays No private discovery Judicial fact-gathering Judge determines liability Ten-year statute of limitations

7 Code-based Tort Law United States Contingency fees Extensive discovery Judicial passivity Jury decides facts / negligence Two-year statute of limitations (repose) France Legal aid / loser pays No private discovery Judicial fact-gathering Judge determines liability Ten-year statute of limitations

8 Code-based Tort Law Differences between the civil code treatment of tort liability in France and Germany: Negligence / strict liability Respondeat superior Statute of limitations (prescription) Questions: Which more “dynamic”? Which more “victim friendly”? (Ben - G)

9 Code-based Tort Law France Art Any act whatever of man which causes damage to another obliges him by whose fault it occurred to make reparation. Germany § 823 [Duty to compensate for damage] (1) A person who, wilfully or negligently, unlawfully injures the life, body, health, freedom, property or other right of another is bound to compensate him for any damage arising therefrom. Which broader? (Stacy) Types of recovery? (Stacy, Brett)

10 Code-based Tort Law France Art [fifth paragraph] Masters and employers, for the damage caused by their servants and employees in the functions for which they have been employed; … Germany § 831. [Liability for employees] (1) A person who employs another to do any work is bound to compensate for any damage which the other unlawfully causes to a third party in the performance of his work. The duty to compensate does not arise if the employer has exercised necessary care in the selection of the employee; and, where he has … to supervise the work, has also exercised ordinary care as regards such … supervision, … Compare, and to US? (Kate)

11 Code-based Tort Law France Art Actions for tort liability are barred after ten years from the manifestation of the injury or of its aggravation. Germany § 852. [Prescription] (1) The claim for compensation for any damage arising from a delict is barred by prescription in three years from the time at which the injured party has knowledge of the injury and of the identity of the person bound to make compensation, and without regard to such knowledge, in thirty years from the doing of the act.

12 French – Auto Torts What must be shown to recover in a French auto accident? Isn’t this tough without discovery? (Lucas) What provisions of the French Civil Code govern liability in an automobile accident?

13 French – Auto Torts What must be shown to recover in a French auto accident? Isn’t this tough without discovery? What provisions of the French Civil Code govern liability in an automobile accident? (Ben – fault-based) Art Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it. Art Everyone is liable for the damage he causes not only by his intentional act, but also by his negligent conduct or by his imprudence. Art A person is liable not only for the damages he causes by his own act, but also for that which is caused by the acts of persons for whom he is responsible, or by things which are in his custody.

14 Jand’heur v. Les Galeries Belfortaises (1930) Facts Issue Plaintiff’s argument (adopted by court of first instance) Defendant’s argument (adopted by appeals court) Court’s holding Court’s analysis Conclusion

15 Jand’heur v. Les Galeries Belfortaises (1930) Facts: girl run over by truck / sues company that owns truck Issue: applicability of Art 1384 to traffic accidents? Plaintiff’s argument: person in control responsible Defendant’s argument: Art (fault) applies if human agent Court’s holding: Art 1384 reverses the burden of proof Court’s analysis Art 1384 exceptions (unforeseen, act God, not responsible) Art 1384 does not turn on “operated by human being” Art 1384 liability based on “control of thing” Conclusion: wow! Judicial law-making or what! (Lucas, Brett)

16 Jand’heur v. Les Galeries Belfortaises (1930) The Court: -- Deciding with all the chambers united; -- On the issue raised by the [appeal]: -- See paragraph 1 of article 1384 of the Civil Code; -- Whereas the presumption of responsibility established by that article as to one who has under his guard an inanimate object that has caused harm to another can be rebutted only by proving an [unforeseen event], a force majeure, or a cause etrangère that cannot be imputed to him; as it does not suffice to prove that he did not commit any fault or that the cause of the harmful act has not been ascertained; -- Whereas, on April 22, 1925, a truck belonging to the Compagnie Les Galeries Belfortaises knocked down and injured the minor Lise Jand'heur; as the challenged decision refused to apply the article cited above on the ground that an accident caused by an automobile in movement, under the impulsion and direction of an individual, does not constitute, so long as it has not been shown that the accident was due to a defect in the automobile, the act of an object that one has under his guard within the meaning of paragraph 1 of article 1384, and that, in consequence, the victim must, in order to obtain compensation for the injury, establish a fault imputable to the driver; -- But whereas the law does not distinguish, for purposes of application of the presumption that it has established, whether the object that caused the harm was or was not put in motion by man; as it is not necessary that there be a defect in the object capable of causing the damage as article 1384 attaches the responsibility to the guard of the object, not to the object itself; -- From which it follows that, in ruling as it did, the challenged decision reversed the legal burden of proof and violated the article of law cited above. -- For these reasons, quash... [remand] the Cour d'appel of Dijon.

17 Jand’heur v. Les Galeries Belfortaises (1930) Word for the day: resistentialism (ri-zis-TEN-shul-iz-um) noun The theory that inanimate objects demonstrate hostile behavior against us.

18 Jand’heur v. Les Galeries Belfortaises (1930) Where’s the court’s – textual exegesis? study of legislative history? use of precedent? policy analysis? (Reid) consideration of implications? Does “laconic method” foster judicial activism or restraint? (Jason) Consider following cases – Truck driver shown to be faultless. Truck stopped, not being controlled. Plaintiff guilty of contributory negligence. Plaintiff was guest of truck driver. Is this common law method run amuck? (2000 CC tort cases/yr)

19 Jand’heur v. Les Galeries Belfortaises (1930) La Mutualite Industrielle v. Epoux Charles (1982) … the victim’s conduct cannot remove that liability or lessen it even part, unless the victim’s conduct was unforeseen and totally unavoidable … (provocative, eh?) (Erika)

20 Special Legislation French National Assembly …

21 Special Legislation French Parliament: “no fault” statute for automobile accidents Mandatory insurance Guarantee fund (uncompensated victims) Direct actions against insurance companies (subrogation) No fault recovery No defense for act of God No defense for fault of victim (unless inexcusable / sole cause) Ste Harscoat (1995): half-drunk in mid-road at night not inexcusable (back to code? Reid) Is Art available? (result: less litigation)

22 Special Legislation How does Germany handle traffic accidents? (Caitlin) Mishap about to happen …

23 Special Legislation German Civil Code § 823 [Duty to compensate for damage] (1) A person who, wilfully or negligently, unlawfully injures the life, body, health, freedom, property or other right of another is bound to compensate him for any damage arising therefrom. Motor Vehicle Traffic Act Driver strictly liable (unless proves not fault) “Holder” strictly liable (unless proves accident “unavoidable” – victim’s entire fault and car sound) “Holder” strictly liable for employee accidents (detours) Statutory cap on pecuniary losses (no P&S) Guests must show fault or those seeking more $$ (§ 823) (Reid)

24 Special Legislation Which is better? (Lucas, Kate) France: judicial development Germany: legislative solution Why no code revisions in either country? (Lucas) __ flexible (Erika) __ narrowly tailored __ well-crafted caps __ dynamic __ minimize litigation __ certain __ predictable __ simple __ legitimate

25 Europe-wide Legislation How do France and Germany handle defective products? Flammable leisure suits …

26 Europe-wide Legislation France Art : Seller must warrant against hidden defects, and liable for all damages if aware of defect French courts Extend “warranty” to subsequent owners Defects presumed to be known to manufacturer Compare to 402A (Jason) Compare to “auto liability” (Lucas) Privity (Brett) Germany Art 823: Injured consumer must prove fault (without discovery or respondeat superior) German courts Manufacturer must prove non-fault (strict liability) Victim lacks information

27 Europe-wide Legislation France Art : Seller must warrant against hidden defects, and liable for all damages if aware of defect French courts Extend “warranty” to subsequent owners Defects presumed to be known Germany Art 823: Injured consumer must prove fault (without discovery or respondeat superior) German courts Manufacturer must prove non-fault (strict liability) Victim lacks information Judicial activism (Caitlin, Brett) Comparative law borrowing (Brett, Elizabeth)

28 Europe-wide Legislation What’s a European manufacturer to do? (New EU members? Reid)

29 EC Directive on liability for defective products (1976 / 1985) Strict liability for product defects (not commercial / agricultural - Brett ) Causing personal injury /death Non-commercial property (over €500) Defenses (Lucas - FR) Harm occurred after left premises Development risk (implementing legislation) Caps No individual caps Global cap of €70 million Limitations periods Three years from discovery Ten year statute of repose Litigation boom? (Ben) Lessons for US? (Caitlin)

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