Facts
On 4 March 1972, three nine-year-old children, Stéphane Guye, André Maillard, and Jean-Fred Gutknecht, were playing with a bow and arrow. During the game, Maillard fired the arrow that hit Guye's right eye, causing him to lose the use of that eye completely. On 31 January 1973, the President of the Juvenile Court reprimanded André Maillard. Stéphane Guye brought an action against André Maillard for damages and moral compensation.
The Cantonal Court condemned the defendant to pay the plaintiff 125,573 fr. in capital. The defendant appealed to the Federal Court, requesting a reduction of the amount he owed to the plaintiff to 82,013 fr. and reimbursement of half of this amount by the third-party defendant.
Considerations
The Federal Court ruled that the three children were jointly and severally liable for the damage, as they had participated together in a dangerous game of which they should have recognized the dangerous nature. The defendant committed an additional fault by firing at his friend at a distance of 3 meters, but this fault is mitigated due to his young age.
The plaintiff also participated in the dangerous game and accepted the risks, which constitutes a concomitant fault. The judge determined the extent of the compensation based on the circumstances and the severity of the fault, and took into account the economic and social conditions of each party.
The Federal Court also ruled…