Extract
[...] Liability of others CASE STUDY: LIABILITY OF OTHERS Intoxicated, Ousmane was refused entry to a store by a security guard. Being insistent, the security guard pushed Ousmane, who was a victim of a cerebral concussion and permanent damage to his sight and hearing, his sequelae being consequent to an intracranial hemorrhage. Despite a family history of cerebral affections and recurrent otitis, Ousmane wishes to obtain compensation. The question is whether Ousmane can hold the security guard and the boss liable on the basis of the liability of others and on the other hand, whether he can hold the security guard liable for a tort for fault In preliminary, the mandatary is the one who executes the mission entrusted by the principal. [...]
[...] In this case, the security guard pushed Ousmane within the scope of his functions but without his boss's authorization, thus constituting a voluntary penal fault. However, the fault was not committed for personal purposes. Furthermore, the Court of Cassation has held that a principal cannot be exempt from liability when his agent has committed a voluntary penal offense (Cass. civ. 2and May 2011, n°10-20.590). In this case, although the security guard committed a criminal offense, abuse of office cannot be retained. [...]
[...] Therefore, the civil immunity of the appointed person must be lifted. Therefore, Ousmane can hold the security guard liable, who cannot be civilly immunized due to the penal fault he committed intentionally. On the cumulation of responsibilities of the perpetrator and the appointed person It is possible to cumulate the liability of the perpetrator with that of the appointed person when the appointed person has committed an intentional fault that is not an abuse of function (Cass. civ. 2and May 2011, n°10-20.590). [...]
[...] Therefore, Ousmane can hold the principal, i.e. the boss, liable for the fault committed by his subordinate, i.e. his security guard. On the liability of the subordinate: the security guard In principle, the subordinate has civil immunity vis-à-vis third parties when acting within the scope of their mission (Cass. ass. plén February 2000, Costedoat). This civil immunity is only a simple presumption (Cass. ass. plén December 2001, n°00-82.066, Cousin), so that it is lifted in case of civil or intentional penal fault (Cass. [...]
[...] In this case, the fault is not difficult due to the criminal offense committed by the security guard in pushing Ousmane. The prejudice is established in that Ousmane retains the sequelae of this altercation, namely a loss of sight and hearing, both of which are consecutive to an intracranial hemorrhage. However, the causal link between the two can hardly be established due to Ousmane's medical history. In fact, Ousmane regularly has ear infections, which therefore affect his hearing, and his family history shows that he is prone to brain injuries that can be serious or minor. [...]
