Bulletin legal of communities local No. 4/09 _ 273

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