The organizer of a sport activity is, in principle, bound by an obligation of safety of means (they should implement all means to insure safety) towards the athlete who participates in his activity, but can also be bound by an obligation of safety of result (the objective of safety must be reached).
The obligation of safety of means (“obligation de sécurité de moyens”)
The organizer must use all means at his disposal to ensure the safety of the athlete, even when the athlete exercises his sport freely. The Court of Cassation ruled in a landmark decision that “the sports association is bound by a contractual obligation of safety, prudence and diligence towards the sportsmen and women exercising an activity on its premises and on the facilities made available to them, even when they freely practice this activity” (Court of Cass, 1st civ, December 15, 2011, n°10-23528 10-24545, Published in the bulletin). In this case, the Court of Appeal had rejected the claim for compensation of a sportsman who became paraplegic following a fall on an artificial climbing route belonging to an association, on the grounds that the accident had not occurred in the context of training or supervision, but during an activity practiced freely by the victim on the walls made available by the association, so that no safety obligation was incumbent on the association. This reasoning was censured by the Cour de cassation.
The obligation of safety of means reinforced and of result (“obligation de Sécurité de moyens renforcée ou de résultat”)
French judges impose on the organizer an obligation to reach the objective of safety in certain circumstances which justify that the obligation of safety be reinforced.
For example, case-law considers that there is an obligation of result and appreciates it with more rigor in the presence of a dangerous sport. With regard to the practice of paragliding, the Court of Cassation has judged that “the sports instructor is bound, with regard to the safety of the participants, to an obligation of means, which is however assessed with greater rigour when it is a dangerous sport”. It has thus retained an obligation of safety of result for a glider instructor towards his client (Cass, 1st civ, October 16, 2001, n°99-18221, published in the bulletin).
Such an obligation will also be appreciated with more rigor “in all situations where the active character of the role of the sportsman is reduced or even eliminated”, which is the case of first flights, ski lifts during transport, or initiation flights in paragliding, excluding the phases of takeoff and landing where the customer has an active role.
The Court of Cassation thus judges that “the organizer of a paragliding flight and the instructor are bound by an obligation of result, with regard to the safety of their clients during the flights, during which the latter played no active role” (Cass, 1st civ, October 21, 1997, n°95-18558, published in the bulletin).
When judges consider that the organizer shall reach the objective of safety (“obligation de résultat”) the organizer must demonstrate that they did not commit any fault and that they took all the necessary measures to ensure the safety of the participants.
Judges will assess whether the organizer did indeed taken the necessary measures to ensure the safety of the event.
To do so, they takes into account
- The nature of sport activity / discipline concerned
- The specific risks involved
- The particularities of the participant himself: age and sporting abilities
