Facts
On July 17, 1995, the [M.] spouses were descending from the Chasseral with their two Samoyed dogs on leashes when they crossed a fenced pasture where a herd of 25 suckler cows belonging to the Witzwil Penitentiary Establishments, a service of the Canton of Bern, was located. Upon the approach of the dogs, the cows became excited and jostled, knocked down, and severely trampled the [M.] spouses.
The [M.] spouses filed a claim for payment against the Canton of Bern, based on Art. 56 CO (liability of the owner of an animal). The Bernese courts dismissed the claim, and the Federal Tribunal confirmed this decision.
Considerations
The Federal Tribunal considered that the liability of the owner of an animal, provided for in Art. 56 CO, is independent of any fault, but presupposes an objective violation of the duty of care incumbent on the owner. To determine this duty of care, all the specific circumstances must be taken into account, in particular the safety standards issued to prevent accidents.
In this case, the Federal Tribunal found that the owner had not violated any safety standard imposed by the legal order, nor transgressed any generally recognized directive. It considered that suckler cows, although they may be fearful of dogs, are not generally dangerous animals for humans,…