IShould the owners of private swimming pools accessible from a public road consider the hypothesis that a young child could enter their home, without their knowledge, and drown? To escape any pursuit, should they cover their pools with a rigid tarpaulin as soon as they move away from it? This is the question posed by the following case.
On April 19, 2015 in the morning, Mr. X, owner in Pas-de-Calais, removed the rigid tarpaulin regulatory which covers its swimming pool, to clean it and swim in it in the afternoon. Before going to lunch, he covers it with a simple “bubble” tarpaulin », designed to let the sun’s rays pass through and warm it up. Around 2 p.m., he learns that his neighbors are looking for a 2.5-year-old boy who disappeared while his parents were visiting their house. He finds him lifeless, under the tarp – the child will die ten days later.
The parents of the child have the X cited before the correctional court of Béthune, for manslaughter. They accuse them of having committed a fault of imprudence by not replacing the rigid tarpaulin, between noon and two, while they live in an “American-style” housing estate, that is to say without a fence at the front of the houses (the gardens being separated by hedges), so that anyone can access their swimming pool from the public road.
The Xs reply that they should have watched their child, since they saw that he could go out freely in the street, and risk being run over there. The court acquits them, after noting that they “have equipment that meets standards”, and “the causal link between the behavior for which they are accused and the death of the young [enfant]left unattended, is not established”.
“Pulling up the oleanders”
The parents still assign the Xs to the Béthune tribunal de grande instance, claiming some 180,000 euros from them. The court reminds them, October 15, 2019, that what has been tried in the criminal case is binding in the civil case. The Douai Court of Appeal (North), which they then seized, affirms, April 15, 2021that“ he didn’t belongs [aux X] to consider the presence of a young child on their private property, moreover without the presence of his parents “. She considers that a ” mistake “ could only be held against them “if they had left their property without ensuring that their swimming pool had been properly covered”.
The Court of Cassation approved his reasoning on March 9, 2023 (21-18.713), although the parents’ lawyer, Mr.e François Pinatel, maintained that the rigid tarpaulin must be replaced ” assoon as “ the swimming pool is not used. She seems to have overheard the X lawyer, M.e Louis Boré, according to which “the owners of a building cannot guarantee the safety of people who might enter it without their knowledge”.
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