Liability of the Owner of a Structure for Failure to Maintain

Facts

This decision concerns a liability action brought against the Canton of Vaud by P. and others following floods caused by the overflowing of the Nozon River. The facts show that the Nozon has experienced increasingly frequent floods, partly due to the urbanization of the catchment area and the addition of pumping water. The plaintiffs attribute the chronic overflows to the deformation of the Nozon's longitudinal profile and its poor state of maintenance. The DFC had to rule on the admissibility of P.'s action, the conclusions of which did not reach the minimum amount required for a direct action before the DFC. It also had to examine the causal role of the lack of maintenance of the structure in the occurrence of the damage suffered by the plaintiffs.

Considerations

From a legal standpoint, the DFC first considered that the regulation of Art. 47(1) FJA could not be extended to direct actions, so that the jurisdiction of the DFC had to be given with respect to each of the claims of the co-plaintiffs, in accordance with Art. 24(2)(b) FCPA. P.'s action was therefore declared inadmissible. Regarding the causal role of the lack of maintenance, the DFC accepted the notion of "lawful substitution behavior", under which the defendant can demonstrate that the damage would have occurred in the same way even if it had adopted behavior in compliance with the law. Applied to the liability of the owner of a structure, this notion implies that the judge must examine whether the owner, by properly maintaining the structure, could have prevented…