Case study: A claim for damages based on tortious civil liability derived from construction works. We obtained for the client the dismissal of a request to pay 78,000 lei + accessories resulting from damage allegedly caused on a construction site. We proved that the claim did not represent a certain, liquid, and enforceable debt.
RELEVANCE OF THE CASE
In the work conducted by professionals in the construction sector, situations arise frequently where companies are held liable for damages for which they are not responsible. To avoid civil liability in absence of conclusive evidence, the law has established the principle that one who asserts something in court must prove it.
A judge cannot resolve the dispute based on mere assertions by the claimant; conviction must be based on clear evidence effectively presented in the case. Thus, the burden of proving the cumulative conditions of tortious civil liability rests with the claimant.
SUMMARY OF THE FACTS
In fact, by the claim filed in the Cluj-Napoca Justice Court, the claimant company requested that the defendant company, assisted by Brisc Legal attorneys specialized in litigation among professionals, be ordered to pay 78,000 lei plus legal penal interest, showing that in 2019, following works carried out by the defendant in the city of Oradea, the defendant damaged a water main, causing damage corresponding to the cost of necessary repairs.
To that end, the claimant company drew up a damage assessment report (= “process-verbal”) of the damages, based on which a schedule of repair works and an invoice was issued and sent to the defendant. Afterwards, a notice was issued, informing the defendant that it has a debt of 78,000 lei, representing the damage caused and related interest, to be paid within 15 days.
PRESENTATION AND SUPPORT OF THE CASE
CASE ARGUMENTS BEFORE THE CLUJ-NAPOCA JUSTICE COURT – FIRST INSTANCE
The Brisc Legal team of attorneys obtained the dismissal as unfounded of the claimant’s requests, showing that the claimant does not prove the damage claimed. In supporting the solution of rejecting the claimant’s requests, we pointed out that the damage report drawn up by the claimant lacks the defendant’s signature, so it cannot represent a source of obligation to pay.
Distinct from discrepancies about the date of completing the damage report, we showed the court that it was also filled out in the section regarding recognition of the act, although the report was not acknowledged by the defendant company; it is a unilateral act of the claimant.
Concerning the existence and extent of the damage, we argued that its value was established arbitrarily by the claimant. The type of work, unit of measure, quantity and price set in the list of works were determined according to the claimant’s free estimation, independent of documents capable of certifying those evaluations.
We also contested the certainty of the debt, since quantities and values of materials were established unilaterally by the claimant, and between the parties there was no contract or other agreement. Thus, it should be emphasized that the defendant company carried out construction works on the site under a contract concluded with someone other than the claimant.
DECISION OF THE CLUJ-NAPOCA JUSTICE COURT
In agreement with the arguments developed by the specialized tort liability attorneys, the Cluj-Napoca Justice Court held that the damage invoked by the claimant company is based solely on documents emanating exclusively from the claimant, and there is no objective evidence regarding how its amount was determined, that is how the values indicated were established.
The court retained that as long as a debt is not certain, there is no payment obligation on the part of the defendant, so no interest can be calculated either. In final, the Cluj-Napoca Justice Court dismissed as unfounded the claimant’s demands, finding that the conditions for tortious civil liability are not fulfilled.
Given this solution, the claimant company filed an appeal.
ARGUMENTS BEFORE THE SPECIALIZED TRIBUNAL CLUJ (APPEAL)
By the appeal filed, the claimant company criticized the solution of the Cluj-Napoca Justice Court, requesting that the appeal be admitted and that the challenged decision be entirely modified, considering that the first instance court incorrectly failed to oblige the defendant company to pay the damage and the corresponding interest.
In defense of the defendant company, we showed before the Specialized Tribunal Cluj that the claimant did not raise specific criticisms regarding the first instance decision; instead, the claimant was only dissatisfied with the ruling and with the interpretation given by the trial court of the factual basis.
We asked for dismissal of the appeal as unfounded, considering that even at this procedural stage the claimant company did not prove the fulfillment of the conditions regarding the engagement of tortious civil liability by the defendant company.
DECISION OF THE SPECIALIZED TRIBUNAL CLUJ
In agreement with the arguments elaborated by the Brisc Legal attorneys specialized in litigation among professionals and derived from construction works, by the decision pronounced by the Specialized Tribunal Cluj, the appeal filed by the claimant company was rejected as unfounded.