Relevance of the Case
Every person has the duty to comply with rules of conduct imposed by law or local custom, and not to infringe, through action or inaction, the rights or legitimate interests of others, under the provisions of Article 1349 of the Civil Code, which regulates delictual civil liability.
The conditions for engaging delictual civil liability are: the existence of an unlawful act, damage, a causal link between them, and sometimes, fault. To engage civil liability and repair the damage, the injured party must provide unequivocal proof that all these conditions are fulfilled.
In a lawsuit, a defendant may call in guarantee a third party, against whom a separate claim might be directed for guarantee or damages. The Brisc Legal team, led by attorney Horațiu Brisc, identified factual and legal circumstances which supported rejecting the claim for guarantee brought by the Municipality of Cluj-Napoca.
Thus, the company called in guarantee and represented by Brisc Legal was exonerated from payment of an amount of 15,000 euros, the obligation falling instead upon the Municipality of Cluj-Napoca.
Factual Summary
In fact, by the filed action, the claimant — at the time a minor — requested, in opposition with the Municipality of Cluj-Napoca via the Mayor, ordering it to pay 20,000 euros as moral damages.
The claimant alleged that he had gone to a basketball court located in Central “Simion Bărnuțiu” Park for a ball exchange with two friends. During a shot (“slam dunk”) — a maneuver commonly used in basketball — the claimant performed the maneuver, and because of this action, the basketball hoop’s pole, anchored defectively, gave way at the contact point with the ground, broke, and fell toward the playing area.
The claimant considered that the responsibility for defective anchoring of the basketball hoop lies with the Municipality of Cluj-Napoca, because the park and the sports equipment are located on public domain belonging to the municipality.
In its defense, the Municipality requested dismissal of the lawsuit as unfounded, and alternatively, a partial admission in terms of reducing the amount of moral damages claimed.
Also, the Municipality brought in guarantee a company that performs maintenance works on municipal equipment, based on a framework agreement concluded in 2017, covering repairs and maintenance of playground equipment and urban amenities in the territory of Cluj-Napoca. Under that framework agreement, subsequent service contracts were concluded.
First Instance Proceedings – Cluj-Napoca Justice Court
In first instance, the third-party guarantee company was not represented by Brisc Legal and took a passive attitude regarding being called in guarantee by the Municipality. The court partially admitted the claimant’s lawsuit and ordered the Municipality of Cluj-Napoca to pay 15,000 euros in moral damages for the harm suffered by the claimant.
Similarly, the court of first instance admitted the guarantee claim by which the Municipality had called in guarantee the maintenance company, and ordered that company to pay 15,000 euros in favor of the Municipality.
Support of the Case Before the Court of Appeal – Cluj Tribunal
After the decision of first instance was communicated to the third-party company, that company engaged Brisc Legal in appeal to challenge being held liable. The Municipality of Cluj-Napoca also appealed the first instance decision.
The Brisc Legal team filed an appeal both against the civil judgment and the order of first instance that accepted the guarantee claim, seeking that the appeal be granted and that guarantee claim be rejected.
In support of this request, the attorneys showed reasons why the maintenance company must be exonerated from paying the 15,000 euros.
While it is true that there existed a framework agreement and subsequent service contracts between the municipality and the guarantee company, Brisc Legal proved via the admitted evidence that the defect affecting the basketball hoop was structural, one that could not and should not have been identified by the maintenance company under the terms of its contractual obligations.
Regarding this, the specialist civil liability lawyer demonstrated to the court that the defect in the bracket of the basketball hoop’s structure cannot be imputed to the guarantee company, considering that under the framework agreement and subsequent contracts, its obligation was limited to repair and maintenance of existing playground equipment and urban amenities, not ensuring structural anchoring unknown at the time.
The liability attorney argued that it is irrelevant whether the guarantee company had the obligation to verify and to propose maintenance works or only to execute those requested by the contracting authority, because in the present case it cannot be held responsible that inspections or repairs were not carried out on the basketball pole — not because there were visible defects it could have identified, but because the hoop failed due to non-compliance with anchoring requirements (a hidden defect): anchoring by concreting at a depth of 50 cm was required, but instead the pole was only welded to a plate fixed to the ground — as shown by photographs submitted in the first instance.
Brisc Legal proved to the court that the works at the basketball court represent construction works subject to specific conditions under Law No. 50/1991 and Law No. 10/1995, and that the factors involved in ensuring construction quality are those listed in Article 6 of law, but that the maintenance company is not among the economic operators charged (under those laws) with verifying or ensuring structural anchoring quality.
In view of all these, the warranty company asked the court to order the municipality to submit to the case file the contract which underlies the rehabilitation and modernization of the basketball court in Central Park and all existing documents related to the work performed — for identifying the object and contractual clauses, as well as the entity responsible for installing the basketball set. However, the Municipality of Cluj-Napoca did not provide those documents in court.
Thus, attorney Horațiu Brisc argued that any contractual liability could be engaged only against the economic operator who installed the basketball poles initially or the manufacturer of the pole, and not against the maintenance company called in guarantee.
Decision of the Court of Appeal
Taking over the arguments developed by Brisc Legal’s team, the Court of Appeal considered that the first instance solution regarding the guarantee claim is incorrect, such that it needs to be changed, and the guarantee claim must be rejected.
To issue that outcome, the court held, in line with Brisc Legal’s reasoning, that the guarantee company is exonerated from liability because the evidence shows that the improper installation of the basketball pole engages the liability of the executing entity and those involved in quality control prior to the approval upon completion of the works.
The court found that in this case it cannot be imputed to the guarantee company that it did not carry out inspections or repairs on the basketball pole, since it did not collapse due to visible defects the company would have identified, but due to failure to comply with anchoring depth requirements (concreted 50 cm), which was not satisfied — only a plate welded to the ground was used, as shown by the photographs submitted.