Joint and several liability of the perpetrator of an unlawful act and the owner of the structure

Facts

This case concerns an accident that occurred during the use of a diving platform located in Lake Neuchâtel. The plaintiff, X., then aged 17, was seriously injured when diving from the upper platform of the diving platform, the water depth around which was insufficient. The Association for the Development of Colombier (ADC) and the Canton of Neuchâtel were jointly and severally liable for the damage suffered by X.

The ADC was the beneficiary of a concession for the operation of a beach on the shores of the lake, but this concession did not include the diving platform. Although the latter was no longer part of the concession at the time of the accident, the ADC continued its maintenance, which engaged its tortious liability. The Canton of Neuchâtel, as the owner of the diving platform, was held liable on the basis of Article 58 CO (liability of the owner of a structure).

Considerations

The Federal Tribunal first examined the issue of the ownership of the structure. According to case law, the determining criterion is in principle the formal ownership of the property, except in exceptional cases where the effective control of the structure can be taken into account. In this case, the Tribunal considered that the Canton of Neuchâtel was the sole owner of the diving platform at the time of the accident, as the ADC's concession no longer included it.

The Tribunal then ruled that the diving platform had a construction defect, as the water depth around it was insufficient to ensure the safety of the users. The Canton of Neuchâtel, as the owner, was…