State liability, public services, damages, administrative judge, faultless liability, moral damage, causality link, penal establishment, public person
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Abstract
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Abstract
The administrative judge is competent in matters of liability of public persons due to harm caused by their public services. The State can be held liable for damages resulting from death or injury caused by violence within a penal establishment.
Extract
[...] This power is today codified at Article L 4° of the Public Procurement Code. A general interest motive must justify the implementation of this extraordinary power. The modification gives rise to a full financial compensation, covering both the damage suffered and the loss of earnings. The unilateral modification of the contract must remain reasonable (otherwise, one completely leaves the initial framework and the co-contractor has the right to ask the judge for the termination of the contract): it excludes the object and the financial aspect of the contract. [...]
[...] The refusal therefore constitutes a prejudice. In addition, assuming it could be qualified as an internal order measure, the presumption of an internal order measure could, however, be overturned because a fundamental freedom, namely the freedom to lead a normal family life, is affected in that his parents reside in Marseille. Assuming the two months have passed, a recourse for abuse of power against the implicit refusal of the director of the prison administration before the administrative court of Poissy is possible. [...]
[...] However, before seizing the administrative judge, Mrs. Lalouse must first bring the contentious matter to a close by submitting a prior claim for compensation to the hospital director. No medical fault could be established since the surgical intervention took place 'within the rules of the art'. On the other hand, Mrs. Lalouse has a shock from the anesthetic product and has a cardio-respiratory arrest. The consequences are disproportionate to the banality of the anesthetic care. The hospital's fault thus seems to be presumed. [...]
[...] The law dated November provides that 'even in the absence of fault, the State is liable to repair the damage resulting from the death of a person detained caused by violence committed within a penal establishment by another person detained'. This liability without fault is nonetheless limited to the deaths of detainees resulting from violence exercised by another detainee. Therefore, the violence perpetrated by agents who are external to the service or by the detainee against herself is excluded. The foundation of liability is risk. In this case, the liability without fault can be engaged by the parents (right-holders) due to the death of Tom Pouche, on account of violence committed by other detainees within the penal establishment. [...]
[...] Lalouse may eventually request in addition two autonomous moral damages that are the psychological unpreparedness and the anxiety damage, referring to the latter, to an unfavorable evolution of her state of health. The conditions for the hospital's liability are met. Madame Lalouse's chances of obtaining compensation for her damage are great. - The death of Mrs. Guigne : Tom Pouche is the author of several criminal acts committed during his holidays. He would be particularly responsible for the aggression caused to Mrs. Guigne who drowned. [...]
