Business Contracts

The extent of the safety obligation, whether based on best efforts or on results, is a matter of some debate. In the case of a best-efforts safety obligation, the beneficiary is required to prove fault on the part of the debtor of the obligation, the damage and the causal link, whereas in the case of a results-based obligation only the last two elements have to be proven. 
In principle, the safety …

Liability

The extent of the safety obligation, whether based on best efforts or on results, is a matter of some debate. In the case of a best-efforts safety obligation, the beneficiary is required to prove fault on the part of the debtor of the obligation, the damage and the causal link, whereas in the case of a results-based obligation only the last two elements have to be proven. 

In principle, the safety obligation is a best-efforts obligation in the presence of a hazard, or when the customer plays an active role. The operator of an accrobranche (tree-climbing) activity course thus owes a contractual best-efforts safety obligation, insofar as the practice of an adventure course in treetops requiring the use of descending zip lines implies an active role on the part of each participant . The same applies to the organizer of sports and leisure activities, insofar as the participants retain an active role and the danger presented by motorized vehicles is perfectly explicit and obvious , to the operator of a car park, insofar as the user of its services, who has to move around the parking lot on foot or at the wheel of his vehicle, does not play a purely passive role and to the restaurant owner, when they have not taken all necessary precautions to prevent falls on wet floors in their establishment . Similarly, except in exceptional circumstances arising from the nature of the event, entertainment promoters are bound only by an obligation of due care as regards the safety of spectators . Doctors, for their part, owe a best-efforts obligation when they install equipment on a patient, but an obligation of safety of result with regard to the equipment they use to carry out a medical act of investigation or treatment . In effect, according to the Court of Cassation, even if the contract between the patient and his doctor imposes on the latter, without prejudice to his recourse to claim third party liability, a results-based obligation of safety with regard to the equipment he uses for the performance of a medical procedure or treatment, compensation for the consequences of therapeutic hazards, and in particular the risk of allergy, does not fall within the scope of the doctor's contractual obligations . It may be argued that the risk of an allergic reaction, which cannot be managed, also justifies the hairdresser's liability under his contractual best-efforts obligation, when he fails to take all necessary precautions before applying a product that presents a risk to the customer's bodily well-being .

In principle, a duty of safety is a results-based obligation, when the contractor has full control over the work to be carried out, in the absence of contingencies, or when the customer plays only a passive role. Thus, according to the courts, a professional supplier and installer who is bound by a results-based obligation to supply and install work conforming to the order, free from any defects and faulty workmanship, incurs contractual liability under his safety obligation if the failure to perform under the contract is due to a cause attributable to him .  The same applies to the garage owner, when a vehicle is entrusted to him for repairs , or the undertaking responsible for the maintenance of an automatic access door to a parking garage, with regard to the safety of the device . And, in the absence of gross negligence on the part of the victim or of an external cause, the operator of an automatic carwash cannot be exempted from liability when the machine has manifestly malfunctioned, firstly during the wash, then once the program had begun, suddenly stopping without any apparent reason, or even since then, before starting up again, even though the vehicle was no longer correctly positioned .

To avoid liability, a tour operator can invoke force majeure. A terrorist attack constitutes a case of force majeure liable to exonerate a tour operator from liability for breach of its safety obligation, since a distinction must be made between the risk of an attack, which is known, and its actual occurrence in a specific place and affecting specific victims, which, by its very nature, is totally random and unforeseeable . He may also allege negligence on the part of the victim. For example, the operator of a parking garage cannot be held contractually liable for failing to meet his best-efforts safety obligation towards a person who fell due to a slippery puddle that had not been cleaned up, since he was required to provide users with a well-maintained floor that would enable them to move around without any abnormal risks, and he had installed thick epoxy paints to make the floor “non-slip” for pedestrians,  and concluded a cleaning contract with a specialized company, providing for the daily mechanical intervention of six qualified operatives from 2 to 10 a.m. and from 3 to 5 p.m., in addition to manual cleaning if necessary, covering the entrance and exit lanes, as well as the passages reserved for pedestrians, marked with a color different from that of the traffic lanes . Similarly, a hotel guest who suffered burns from contact with the towel dryers in her room could not hold the hotel liable for breach of its safety obligation, since she had noticed on arrival that the temperature of the towel dryers, which were hot, could not be lowered, but did not make any efforts to bring the problem to the attention of the establishment, nor did she describe the circumstances which may have led her to come into contact with the aforementioned appliances, nor did she produce the statements of the members of her family who were present at the time of the incident .

CA Chambéry, 9 December 2021, LawLex202100006274JBJ; CA Amiens, 28 September 2023, LawLex202400007055JBJ.

CA Montpellier, 21 January 2020, LawLex202000000111JBJ. Cf. Cass. 1re civ, 11 January 2017, LawLex201700000329JBJ, holding that the organizer of a paragliding course incurs liability under his results-based safety obligation, when he provided the victim on a solo flight with a radio which suffered an unexplained breakdown, causing the harm.

Cass. 3e civ, 5 November 2020, LawLex202000003161JBJ, specifying that the undertaking responsible for the maintenance of an automatic access door to a parking garage has an obligation of results-based safety even if, in compliance with regulations, six months may elapse between two maintenance visits, and that during these periods, its intervention due to a malfunction of any kind is dependent on the reporting by the building's janitor.

CA Reims, 26 July 2005, LawLex202200008890JBJ.

Cass. 1re civ, 5 février 2020, LawLex202000000244JBJ. Also see Cass. 1re civ, 25 November 2015, LawLex201600000613JBJ, holding that even if the parking garage operator can legitimately be criticized for not having pointed out that there was a malfunction justifying the user's obligation to use a payment procedure other than the usual one, the victim could have avoided the fall by paying attention to possible obstacles, such as the small sidewalk no thicker than a staircase step, so that her failure to pay attention justifies a 50% apportionment of liability.

CA Chambéry, 4 October 2018, LawLex201800001469JBJ.

Cass. 1re civ., 25 November 2015, LawLex201600000613JBJ, holding that a parking lot operator breached its safety obligation when, having failed to give sufficiently prominent warning of the malfunction of the pay stations at the exit, this lack of information, by forcing the victim to get out of his vehicle and cross a sidewalk to pay his dues, constituted one of the causes of his fall.

CA Chambéry, 20 June 2024, LawLex202400007058JBJ.

Cass. 1re civ, 29 November 1989, LawLex202300001613JBJ.

CA Dijon, 4 October 2011, LawLex201200001560JBJ; see also CA Montpellier, 23 March  2010, LawLex201300000917JBJ: a beauty salon is bound by an obligation of safety of result with regard to the equipment used, so that the victim must demonstrate that this equipment is the cause of his or her injury, whereas it is up to the professional, when the result has not been obtained, to prove that he or she has fulfilled his or her obligation in order to escape liability.

Cass. 1re civ, 22 November 2007, LawLex201700002114JBJ, specifying that in the absence of fault on his part or of a defect in the gloves used, the doctor cannot be held liable in damages for the consequences of the occurrence of an accidental risk inherent in the medical act, the risk of allergy, which cannot be controlled.

CA Colmar, 13 March 2017, LawLex201700000561JBJ; Cass.1re civ., 8 December 1988, LawLex202200003855JBJ, holding that the operator of a beauty salon is only bound by a best-efforts obligation with regard to the safety of her customers while using the showers made available to them.

CA Douai, 1 February 2018, LawLex201800000272JBJ. See, in the same vein, CA Riom, 25 April 2018, LawLex201800000644JBJ: the installer of a pool enclosure that has collapsed is bound by a results-based obligation from which he can only be exonerated by showing evidence of an extraneous cause.

However, in this detailed case, instead of stating that the garage owner can be exonerated by an extraneous cause, the Court held, by virtue of the absolute authority of res judicata in criminal cases, that the garage owner can be exonerated by proving that he was not at fault, See Cass. 1re civ. June 9 1993, LawLex202200003852JBJ. Cf. Cass. 1re civ, 19 October 2004, LawLex200400003419JBJ, holding that the liability of a roadworthiness test center can only be incurred, outside the scope of its mission, in the event of negligence likely to jeopardize the safety of the vehicle.

Business Contracts

308. Liability

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Les décisions de justice citées dans ce paragraphe :

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308. Liability

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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