Employee safety – For the Cour de cassation, the employer remains liable even when he entrusts his safety to a third party

On March 9, 2015, a tragedy occurred on the set of the "Dropped" program; this consisted of two teams of four participants competing in an unprecedented adventure after they had been dropped off by helicopter "in the middle of nowhere, in a hostile universe". During a low-level close-up flight in Argentina's Rioja province, two helicopters - one used to film the other - collided. Ten people perished in this tragic accident: navigator Florence Arthaud, Olympic swimming champion Camille Muffat, Olympic medal-winning boxer Alexis Vastine, five French members of the production team and two Argentine pilots. Following this terrible event, the mother and widow of one of the cameramen working for the company that produced the program went to court to seek recognition of the employer's inexcusable fault. In a widely-published ruling dated November 16, 2023 (no. 21-20.740), the 2nd Civil Division of the French Supreme Court (Cour de cassation) upheld their claim, ruling that the company had committed an inexcusable fault. It thus confirms the judgement of the Nanterre Court of First Instance and the Versailles Court of Appeal, which had also found the existence of such fault. She added - and here lies the contribution of this decision - that the employer could not exonerate himself from liability by concluding a contract providing for the management of employee safety by a third party. This was indeed one of the arguments put forward in his defense. On this point, it should be remembered that according to applicable case law, the employer's inexcusable fault is characterized when he was or should have been aware of the danger to which the employee was subjected, and failed to take the necessary measures to protect him (Cass. 2nd civ, October 8, 2020, n°18-25.021 and 18-26.677). On this basis, the company argued before the Versailles Court of Appeal and then before the French Supreme Court that awareness of the danger and the sufficiency of the measures taken by the employer to protect the safety of its employees are assessed in the light of the conduct of a normally diligent employer. In the present case, it argued in particular:

• Civil Aviation and that - not being in a position to apprehend the risks associated with the use of helicopters themselves - it had precisely surrounded itself with competent professionals;
• That it had entered into a contract with a major Argentine audiovisual production company, entrusting the latter with the provision of local technical services in compliance with safety regulations;
• Above all, for all aspects relating to the safety of employees and participants in the program, and in particular helicopter flights, it had entrusted a highly specialized and experienced professional with a complete mission to ensure the safety of the filming, involving in particular ensuring the application of the correct procedures for each expedition, particularly the organization of flight safety.

The company argued that it had taken all possible measures, in the light of its knowledge, to ensure safety to the highest standard, but the Versailles Court of Appeal failed to take this into account:

• Refused to examine in detail the measures taken by the company;
• Suffice it to say that the third-party companies used by the original employer remained under the latter's supervision, direction and control.

Like the Versailles Court of Appeal, the Court of Cassation rejected this argument, noting - in order to establish the existence of inexcusable fault - that the employer :

• Chose of its own accord to take the risk that was the direct and certain cause of the collision between the aircraft that resulted in the employee's death, namely to have organized a flight corresponding to a scenario defined by it and consisting of shooting this flight as part of the filming of the program;
• Had not taken the necessary measures to protect passengers from the accident, nor the necessary precautions, such as ensuring the existence of a means of communication between the aircraft, or organizing a test flight without passengers.

Above all, it approves the Versailles Court of Appeal's finding that the third-party companies involved in providing safety-related services remained under the employer's supervision, direction and control. This is not a new solution, as the social chamber of the French Supreme Court had already taken a similar position (Cass. soc. June 13, 1991, no. 89-13.616). In this long-running case, a company involved in the construction and maintenance of transport infrastructures had delegated all health and safety services to two service providers, one of whom was responsible for the site where an employee fell to his death. In our view, these decisions are legally questionable: in both cases, the employers had used third parties to ensure the safety of their employees, but had not completely relinquished the management of their employees' safety. This shows that, by using other professionals, they have been particularly careful to ensure maximum safety for their employees. Otherwise, we might conclude that a company is faced with a twofold difficulty: either it refuses an assignment, because it cannot ensure safety itself, or it accepts it, but then automatically becomes liable for any incident or accident that occurs, even if it can be shown that the third party called in at its request would have carried out the assignment with all due diligence. This new ruling by the French Supreme Court (Cour de cassation) calls for vigilance when using a service provider to ensure the safety of employees: particular attention should be paid to the wording of the commercial contract, and specifically to the clause relating to whether or not liability is shared in the event of damage.