Bulletin legal of communities local No. 4/09 _ 273
Local litigation
Conclusions
Edward Geffray, public rapporteur
This case will lead you to
specify, in a novel hypothesis
before you, the liability regime
no fault of the State for damage
caused by minors entrusted to help
social child within the framework of
Educational, including support measures
your decision GIE Axa broker 1 asked
the principles.
By order of 24 March 1995,
Judge Nancy children entrusted
Ms. Najet k., aged 17 years, the service
Social Affairs of the Department
of Meurthe-et-Moselle, in the framework
educational assistance measures
taken on the basis of 375 items
and following of the civil code. Nevertheless, there
issued the "desire" to see given the interested
Clairval home managed by the association
ACHIEVED, what did the Department.
On April 9, 1995, in a fugue,
the girl has caused a serious accident
While she was travelling on a
car stolen from the national Institute of
agronomic research (INRA), and
two pedestrians and seriously wounded. The victims
have requested compensation for the damage
in the title of the Act of 5 July 1985
(automobile liability) to INRA.
owner of the vehicle, as well as to the association
MADE called in guarantee
by INRA. By a judgment of 22 March
2001, the tribunal de grande instance of
Nancy condemned the INRA and held that
the association and its insurer were
liable in solidum to relieve and ensure
the INRA of all death sentences pronounced
against him in this
case.
But at the same time the INRA had
applied to the administrative tribunal
Nancy, in February 2001, to condemn the
Department to pay the corresponding amount.
By a judgment of
15 April 2003, the administrative tribunal has
dismissed the motion on the ground that the judge
children having entrusted the infant to the
Department wishing his investment
home the association Clairval
ACHIEVED, "the burden of organizing, of".
direct and control the mode of life of
"the minor" had been transferred to the association
and not to the Department. On
INRA, the administrative court appeal
Nancy Appeal reversed this solution
in accepting the responsibility of
Department. It estimated - we
include - "only by reason of the powers"
the Department of which is invested
When a minor has been entrusted to a service
within its authority, its responsibility
is committed, even without
fault, damage to the
"third party by this minor", and that the circumstance
the judge child supplement ""
This placement of a "wish" with respect to
the establishment in which the minor
will be placed has no bearing on this
liability.
The Department regularly appeals
in cassation before you against
this judgment 2.
INRA brought an appeal in cassation
incident, discussed by
the suite.
1. As regards the appeal brought by the
Department.
The main issue is that of
whether the responsibility of the Department
must be disregarded when the order
placement at ESA has issued a
wish the institution of placement
not to impose it expressly.
Before you respond, you can easily
remove the other two arguments
of the appeal.
The decision is sufficiently reasoned. Unlike
has what is supported by the
Department, the Court, by serving as
the desire of the judge of the children had
not mandatory value, has sufficient
justified that the fact that the judge
children had wished to place the minor
in an unnamed private institution
designated has no bearing on the
responsibility of right of the Department.
We therefore come to the review of
means which justified that the matter be
subject to your training, taken from the error
law allegedly committed by the Court
in holding that the fact that the
children judge has issued a wish is
no impact on the responsibility of
right which is the responsibility of the Department
for the damaging facts committed
by the minor.
Summary
The Department is liable, even
without fault for the damages caused to third parties by
a minor whose custody has been entrusted to him by the judge
children, although even the latter have pre-paid
his decision to "wish" that the minor be placed
an organization private expressly designated.
Who is responsible for the damage caused by
a minor entrusted to social assistance to childhood?
Liability litigation _ Damage
caused by a minor entrusted to the departmental service
child welfare _ Responsibility
of the Department _ Yes.
This (3/8 SSR) February 13, 2009, Department of
meurthe-et-Mosellereq. # 294265 - Mr. Domino,
Rapp. -Mr. Geffray, Rapp. public - PCs Defrenois
Levis, SCP Ancel, Couturier-Heller, Av.
_ Decision which will be mentioned in the tables of
Recueil Lebon.
1 This S. 11 February 2005, req. No. 252169, concl.
Devys; R., p. 45, chron. AJDA 2005: ECR, p. 663
2 Commented on theAJDA 2006, p. 916
BJCL
274 _ Bulletin legal of communities local No. 4/09
Regime of liability
applicable
Your jurisprudence and that of the Court
of cassation have concurrent manner.
the liability regime set
applicable in the matter.
The principle is that of liability
no fault, of right, in accordance with
in article 1384 of the civil code, of
the public or private to person
which a minor has been entrusted by the
j. as part of an assistance measure
educational 3 because of the damage
that it has caused 4. By the
decision GIE Axa, you thus judged
"that the decision by which the judge of".
children awarded custody of a minor.
as part of an assistance measure
educational decision-making under sections 375
and following of the civil code, to one of the persons
mentioned in article 375-3 of
same code, transfers to the person who
in is responsible for the responsibility to organize,
direct and control the life of
"minor" 5.
Therefore, the express decision of
Justice which has the effect of transferring to the
person in charge of the guard this responsibility
6.
As reported by c. Devys in its
conclusions on this case, this "responsibility".
arises from the existence, non-
effective power of surveillance.
but rather a legal power, and
theoretical organization mode of
"life of the minor." In doing so, you you
were enrolled in the extension of
the case of Truchet of the Court of conflicts 7,
which clarifies the different paths of
remedies for placement
a minor in respect of assistance
educational.
Several assumptions must be
be distinguished for determining the person
responsible for. Children judge
has the possibility, pursuant to article
375 3 of the civil code, to entrust the minor
to the other parent, a member of the
family or a third party deemed worthy of
trust, a service or an institution
health or education, ordinary
or specialized, or "a" again
departmental service of welfare
"childhood". According to the case, the
person in charge is not the
Similarly, and the judge competent nor:
-When the children judge says
directly the minor service
private sector, the responsibility of the latter in
case of damage caused by the person concerned
can be sought on the civilian side
before the judicial judge 8 ;
-When the judge directly entrusts the
minor to a departmental service
the children's aid, the same case of
Court of Justice that the responsibility conflict
of the latter can be
searched to the administrative court.
This second hypothesis, which is here
ours, has several
declension according to the powers which
use the judge child. The judge may
indeed decide to entrust the minor to
without any indication on the ASE
instead of practical accommodation. The Department
can then decide for itself of
place the child in a private structure
9. Your GIE Axa jurisprudence
as the Court of cassation only
then hold that the responsibility of
Department, regardless of the place of home
strength decided by, therefore
that no judicial decision has suspended
or interrupted this educational mission
10.
But the Court of cassation also has
admitted that the juvenile judge may decide,
not only assign a
minor to a departmental service,
but to impose its placement in a
identified private institution. Article
375 3 of the civil code in effect allows the
judge away a minor of his environment,
for the Entrust, by virtue of
4 ° the Department ASE service. In
virtue of 2(e) paragraph 375-4, it may impose
This investment "in the same terms".
under article 375-2, second
"paragraph", i.e. "make the".
maintenance of the child to obligations
specific such as that of attending
regularly a facility
health or education, ordinary or
"specialized". The Court of cassation
derived from the combination of these provisions
the judge, when he entrusted
a minor ASE may impose this
rehabilitation of a duty of investment
in such or such organization. The
responsibility is then transferred to the
last 11.
Desire of the judge
and transfer
of responsibility
Even to consider this solution
as to nearly stabilized - what is
discussed by the doctrine and is not totally
obvious once it is
always in the Department to take
some important decisions
in the life of the minor, such as those
relating to hospitalization or monitoring
minors placed in custody - the
dispute is submitted to you corresponds to
a similar hypothesis but clearly
more blurred, where the judge wished Guide
placement to a fixed institution,
not to impose
specifically.
Here we must mention the order
children judge, who decides:
"Saw the urgency, entrust temporarily."
the minor to the departmental service
Social Affairs, wishing his
placement Clairval home; […] attach
the mother of visitation rights
the terms and conditions will be managed by the
departmental Affairs Branch
"social".
Note finally that the judgment of the Court of
June 15, 2000 Cassation sparked a
critical or reserved comments
among commentators notified. Thus,.
that's notes Mr. Huyette in its
comment by this decision 12 : "the".
judicial desire does not exist. […] The
judge imposes the home of the minor by such
fireplace or it does not impose it. But it does
may not legally simply one
wish, a term excluding any character
"binding". We fully share
This analysis. The jurisprudence
We thus seems to be based
to the legal ownership of the powers
custody of the minor, in accordance with
elsewhere in the aforementioned of conclusions
V. Devys under the GIE Axa decision.
However, how could we consider
that a simple wish has the effect of
transfer the workload and responsibility
a body, which has neither asked.
neither accepted the charge of the minor and not
could, if it was viewed as
a duty, asked to be withdrawn
?
We therefore offer you confirm
the principle of the responsibility of the
public person to whom the minor
is given, regardless of the claimant
to which it then uses, therefore
Local litigation
3 Sections 375 and s. Code civil.
4 See, in this sense, this s. 11 February 2005, GIE Axa
brokerage, Prev.; Cass. CRIM, 26 March 1997 : Bull.
Crim. No. 124
5 You have deducted the responsibility of full
law, even without fault of the person in
charge of the minor, aligning the scheme
compensation of damages caused
by child offenders placed (EC S.)
February 3, 1956, Thouzellier : ECR, p. 49), but in
basis of liability on the concept of custody.
6 See also in this sense, Cass crim.
October 10, 1996, Home saint Joseph : Bull Crim..
1996 No. 357; D. 1997.309, note Huyette.
7 TC 17 December 2001: ECR, p. 762
8 On this subject, see TC 17 December 2001, Truchet
c / Rector of the Academy of GrenoblePrev.
9 Family or agency, Cass. Civ. (1re c.)
January 3, 1980: Bull. Civ. I, no. 1
10 See for a case where the guardianship of a minor
assigned to a Department by the judge of
guardianship, which the has placed in an association:
Cass. Civ. (2e c.) October 7, 2004 No. 03 - 16 - 078
Judgment by which the Court of cassation quashes and
set aside a judgment of the Court of appeal for
the association from liability
which was placed the minor.
11 Cass. Civ. May 15, 90: Bull. Civ. 1; Cass. CIV. (1re)
c.) March 10, 1993: Bull. Civ. I, no. 104
12 Dalloz, 2001, no. 8
that the choice of it has not been
expressly imposed by the judge.
If you follow us, your decision not
will be however not without consequences
on the distribution of competences between
judicial justice and the administrative judge.
In fact, in the State of the authorities, the
victim may pursue a combination
before the judicial judge, is the
Department before the administrative judge,
even if the orders of judges
children making mention of a wish
are extremely rare in the
practice. In this case, the Court has also
sentenced the Department subject
It is subrogated to the same height
amount in rights that would
INRA competition of convictions
that the courts could
rule in its favour because
the appeal in guarantee that the Institute has
brought against the association and its insurer.
The ground of error of law as
rejected, you can reject the
appeal of the Department of Meurthe-and-
Moselle.
2. We can now come to the
Cross power formed by INRA before
you.
After the accident, the judge hearing the application
of the tribunal de grande instance of
Nancy has therefore condemned, March 24
1995, INRA to pay victims a
aggregate of 156 465,55 €
(1026 346,70 F) as a reserve.
INRA then turned to the Department
then seized the administrative tribunal
on 22 January 2001, an application
to the conviction of the Department
to pay an equivalent amount.
But barely two months later, the
22 March 2001, the tribunal de grande instance
Nancy was pronounced permanently
on the amounts to be allocated to the
victims, which represented amounts
additional 75 231,19 €,
1 524,49 € and 304.90 €. It is only by
a supplementary factum of September 24
2001 affected by the judgment-
INRA has requested the Court
administrative to be reimbursed
These new amounts. It is
However not explicitly pronounced
on these findings, since he rejected the
request.
Unfortunately for INRA, the
indemnity conclusions of his appeal
the administrative Court of appeal of
Nancy were the sum
initial 156 465,55 €. Error, without
doubt, but that fact that the INRA has finally
increased its claims that
in a memorandum of January 26, 2006.
a few days before the hearing. This
memory is not covered, and the Court has
ordered the Department to pay the
originally requested sum.
Failure
rule?
INRA form therefore an appeal in cassation
incident before you, you
requesting to cancel the judgment as it
has failed to rule on this application
"complementary".
The Department opposed an end of
bar to the appeal, on the ground that it
would be a separate issue. But such
is not the case here: the object of
case is the same, the only question
being that the level of compensation
13. The appeal is therefore admissible. It
is also based: INRA made
explicitly complementary findings,
that the judgment under appeal is
not and that he does not respond. You
can therefore set aside the judgment as it
not adjudicating claims for compensation
complementary formed
by INRA.
But you need to reject these findings
on appeal. You are in effect
constantly that, to be admissible
on appeal, the findings must have
presented before the administrative tribunal
and in the appeal 14. However, in
Here, the INRA has not reverted these conclusions
"complementary", yet presented
a few months earlier. We
We were tempted to make an effort in the
extension of your case-law of
Section of 8 July 1998, Department of
Isère. But, on the one hand, this decision
admits the admissibility of claims
Indemnitees higher appeal that
When the true extent of the consequences
harmful is known
that subsequent to the judgment of
first instance, which is not the case
here; on the other hand, the INRA has developed close
two years to remember these conclusions
; Finally, such an effort is compromised
by the same terms selected by INRA
before the Court. INRA has indicated
"complete his application" and challenged the
judgment of the tribunal in
as long as he had "failed to decide on the".
complementary application which was
"presented on 24 September 2001". In doing so,.
INRA is therefore placed on the ground
of the irregularity of the judgment in dispute,
means was a legal case
distinct from the subject of
submissions to the Court
by the introductory memorandum. We you
therefore propose to reject the conclusions
complementary as inadmissible
because late.
With regard to the conclusions presented
in the title of the article l. 761 - 1 of the code
administrative justice, you will be able
dismiss those presented by the Department,
losing party, within the framework of
main appeal. There is no place for
right to do so, in the circumstances of
this case, these conclusions presented
by INRA in defence of the main appeal.
and by the Department in response to the
cross-appeal.
And for these reasons, we conclude:
-to the rejection of the appeal of the Department of
Meurthe-et-Moselle;
-to set aside the judgment of the administrative court
of appeal in so far as it is not held
on the complementary findings
presented by INRA;
-to the rejection of the surplus of the finding of appeal
presented by INRA;
- and to the rejection of the findings presented
by the Department of Meurthe-et-Moselle
and the INRA in the title of the article l. 761 - 1 of
Code of administrative justice _
Bulletin legal of communities local No. 4/09 _ 275
Local litigation
13 Cf. a contrario : This January 10, 1962, Chauvey :
ECR, p. 22, for a cross-appeal held
inadmissible.See also this January 19, 1983, City
Mulhouse : T] ECR, p. 838, holding that if
the main appeal concerns the conviction
of a municipality to pay an agent
damages for wrongful dismissal, the
incidental findings tending to the payment
statutory benefits of notice and
dismissal are admissible (January 19, 1983)
City of Mulhouse : T] ECR, p. 838).
14 This February 28, 1958, General company of
Waters : ECR, p. 994; AJ 1958, 2, p. 123.
276 _ Bulletin legal of communities local No. 4/09
Local litigation
(Light, 1 °), the summary appeal and memorandum
further, registered on 12 June and
October 12, 2006 to the Secretariat of the litigation
of the Council of State submitted to the Department
Meurthe-et-Moselle, represented by the President
the General Council; the Department of
Meurthe-et-Moselle application to the Council of State:
(1 °) set aside the judgment of 10 April 2006 by which the
Nancy appellate administrative court has, on the
application of the national Institute of research
Agronomique (INRA), set aside the judgment of
April 15, 2003 by which the administrative tribunal
Nancy rejected the request of the latter tending
that he be sentenced to repair the consequences
damaging of the accident caused
the suite of his fraudulent subtraction
vehicle by a minor whose custody he had
assigned by the judge of the children and has
sentenced to pay the sum to the INRA of
156 465,55 € together with interest at the legal rate to
beginning December 26, 2000;
(2 °) adjusting the case on the merits, dismiss the appeal
formed by INRA;
(3 °) to INRA load the amount
4 000 € to the title of the article l. 761 - 1 of the code
administrative justice;
[…]
Whereas it appears from the record parts
subject to substantive, judges by order
March 24, 1995, the judge of the tribunal
de grande instance de Nancy entrusted to the
departmental service of social assistance to childhood
Meurthe-et-Moselle, on the basis of
Section 375 of the civil code, the custody of the young
minor Najet k. "wishing his placement in the".
"fireplace Clairval" managed by the association "Realizes";
that, on 9 April 1995, Miss k. seriously injured
two people while she was travelling on a
vehicle stolen belonging to the national Institute of
agronomic research (INRA); as a result
This accident, INRA, put in question its quality
owner of the vehicle, turned
against the Department of Meurthe-et-Moselle in
requesting, on the ground of liability
no fault, the reimbursement of the sum that it
had been ordered to pay to the victims of the accident
by the High Court of
Nancy; that, by the judgment attacked, against which the
Department appealed in cassation, the Court
administrative appeal condemned this community
to pay the sum of 156 465,44 INRA €
corresponding to payments made by the Institute,
together with interest at the legal rate
from December 26, 2000; that, by the way
the cross‑appeal, the INRA seeks annulment
the same case as the Court failed to
decide on its complementary applications
refund;
On the main appeal of the Department
of Meurthe-et-Moselle:
Whereas, in the first place, that to exclude
of estoppel raised before it by
the Department, the administrative Court of appeal has
have found, without altering the Scriptures of appeal which
were submitted, that the INRA had filed.
within the period of use, a memory in which
It does not merely refer to his writings
trial, but formulated a
criticism of the ground relied on by the first judges
to reject his application;
Whereas, secondly, that the decision
by which the children judge awarded custody
of a minor, as part of an assistance measure
educational decision-making under sections 375 and
following of the civil code, to one of the persons mentioned
Section 375-3 of the same code, transfers
the person who is responsible liability
to organize, direct and control the life of
minor; because of the powers which the Department
is thus vested when the minor
He has been entrusted, its responsibility is engaged.
even without fault, damage to the
third by this minor; that this responsibility
is likely to be mitigated or removed
only where it is due to a case of
force majeure or a fault of the victim; that the
fact that the judge child supplement "" its
decision of entrusting a minor to the custody of the service
departmental help the children of "wish".
«» this minor is placed in a body
private he designates has no bearing on the
transfer to the Department of responsibility
to organize, direct and control the life of the minor;
Thus, the Court whose judgment is sufficient
reasons on this point, was able, without error in law.
condemn the Department to repair the damage
caused by the young girl entrusted to his care;
Whereas it follows from the foregoing
that the Department of Meurthe-et-Moselle is
not founded to seek the annulment of the judgment that he
attack;
On the cross-appeal presented by
INRA:
Whereas, in view of the argument
presented by the Department of Meurtheet-
Moselle in his appeal, which tends to
the principle of responsibility for the
harmful consequences of the accident caused
the cross-appeal presented by young Najet k.,
by INRA, which deals with the amount of
reparable harm as such, does not raise a
separate issue; by then, and contrary to this
supported by the Department, this cross-appeal
is admissible;
Whereas it appears from the record parts
submitted to justices of the substance, by a
additional memory recorded at the registry of
the administrative Court of appeal of Nancy on January 26
2006, INRA has increased the amount of its
submissions of the sums of 75 231,19 €,
1 524,49 €, and 304.90 € that he had been sentenced to
pay to victims in addition to the sum
of 156 456,55 € previously paid as
provision; only in not deciding on these
claims, the administrative Court of Appeal held
within the findings before it;
that its decision must be annulled as it
does not adjudicate these findings;
Considering that there is, in the circumstances
of the case, resolve, to that extent,
the case on the merits in accordance with the provisions of
article l. 821 - 2 of the code of administrative justice
;
Whereas if, by a recorded memory
January 26, 2006, before the administrative court
call Nancy, INRA has increased the amount
conclusions which it had submitted in its
brief recorded June 29, 2003 to
are 75 231,19 €1 524,49 €, and 304.90 €,
that he had been convicted, by a judgment of the Court
de grande instance de Nancy, to pay to victims
In addition to the sum of
156 456,55 € previously paid as
provision, it follows from the statement that he had already
presented at trial, a memory
recorded September 24, 2001, conclusions
tending to the updating of its claims to height
of these funds; lack of introducing,
in the time for appeal open to him to
conclusions to the conviction of the Department
to reimburse these amounts, it could
only be viewed as having abandoned these
claims on appeal; only thus, conclusions
that he presented January 26, 2006, to
new to the updating of the amounts claimed,
should be dismissed as inadmissible;
The findings presented in the title
Article l. 761 - 1 of the code of justice
administrative:
Whereas these provisions preclude
that is made dependent on the INRA the
amount that the Department of Meurthe-and-
Moselle demand in its main appeal to the
exposed by him and not including costs
in costs; that there is no place, in the circumstances
in this case, to the conclusions
presented by INRA in
response to the appeal and on the other hand by
the Department of Meurthe-et-Moselle, in
response to the cross-appeal, to the payment
of amounts claimed in the same way;
DECIDES:
Section 1ER : The appeal of the Department of
Meurthe-et-Moselle is dismissed.
Article 2: The decision of the administrative court
April 10, 2006 Nancy appeal is set aside
as long as it does not determines the conclusions of
INRA involving sums of 75 231,19 €,
1 524,49 €, and 304.90 €.
Section 3: The surplus of the finding of appeal
INRA is dismissed.
Section 4: The conclusions presented by the
Department of Meurthe-et-Moselle and by
the INRA in the title of the article l. 761 - 1 of the code of
administrative justice are rejected.
[…] _
Decision
Bulletin legal of communities local No. 4/09 _ 277
This decision was the occasion for the Council
State, to continue the clarification of the rules
applicable to liability
damage caused by a minor entrusted to the
départemental childhood, business support services
by a judgment of Section GIE Axa broker 15.
We know that the principle is that of a responsibility
no fault, of right, in accordance with
article 1384 of the civil code of the person
public or private to which the minor has been
entrusted, because of the damage it has caused.
This principle is also common to jurisprudence
Administrative and judicial. But the
problem was, in this case, the circumstance
that the judge had with its decision
of a "desire" to placement of the minor in
a private association that he had specifically
designated. However, in a judgment rendered on circumstances
similar, but remained isolated, the Court
of cassation had retained the responsibility of
association, and not the Department 16. Le
Council of State does not accept this solution, and
considers that only the Department is responsible for.
Three elements deserve to be underlined:
-on the one hand, the Council of State remains faithful to the principle
According to which the liability is based on
the legal ownership of the powers of custody of
minor and non-physical ownership or
effective, underlying the decision GIE Axa broker
;
-on the other hand, if the tour decision not
gives no scope, in terms of responsibility,
a simple "desire" expressed by the judge,
It decides on the hypothesis where it
decide specifically the placement of
minor entrusted to the Department in association
designated;
-Finally, the divergence of authority between the
Council of State and the Court of cassation should
have very limited effects: in addition to it is
not possible to infer a rule of
supra of the Court, in which assumptions
the Justice of children form a simple
"desire", a little surprising, are extremely rare. _
Local litigation
Comments
15 This S. 11 February 2005, req. No. 252169, concl. Devys.
16 Cass. crim. June 15, 2000: Bull Crim.. 2000, no. 233
