Law on the Civil Liability of Public Bodies and Public Agents

1 The law applies to

a) the Canton, to the members and substitutes of its legislative, executive, and judicial bodies, to its commissions and delegations, as well as to its officials;

b) the Municipalities and their Consortia, to the Patricianates, to the members and substitutes of their legislative and executive bodies, to their commissions and delegations, as well as to their officials; [1]

c) the corporations and institutions of cantonal public law with their own legal personality in the exercise of a public function, to the members and substitutes of their bodies, as well as to their employees; [2]

d) all other persons to whom a public law task is directly entrusted. [3]

2 The public law legal entities listed above are hereinafter referred to as public bodies; the other persons are hereinafter referred to as public agents.

[1] Sub-paragraph in force since 1.7.1990 - BU 1989, 342.

[2] Sub-paragraph in force since 1.7.1990 - BU 1989, 342.

[3] Sub-paragraph in force since 1.7.1990 - BU 1989, 342.

The law does not apply

a) in cases where the liability of public bodies and agents is already regulated by federal law or other cantonal laws;

b) to the Cantonal Bank of Ticino and the Ticino Electric Utility;

c) to legal entities of an ecclesiastical nature established by cantonal public law and to their organs and employees;

d) to notaries.

The law regulates

a) the liability of public bodies for damage caused to third parties by acts or omissions committed by their agents;

b) the liability of public agents for damage caused to public bodies.

1 The public entity is liable for damage unlawfully caused to third parties by a public agent in the exercise of their functions, irrespective of the agent's fault.

2 In the case of Art. 1 para. 1 lit. d), the public entity is liable to the extent that the public agent would be responsible towards the injured party according to the law applicable to them. [4]

3 The injured party has no action against the public agent.

[4] Para. in force since 1.7.1990 - BU 1989, 342.

[5] 1 In the event of an administrative or judicial decision, the public body is liable for damage caused only for gross violation of a fundamental duty of the function.

2 No compensation is granted in cases where the damage could have been avoided had the injured party made use of the legal remedies available to them.

3 If the damage is caused by the failure or delay in adopting an administrative or judicial decision, the liability of the public body is governed by Art. 4.

[5] Art. amended by L 23.11.2015; in force since 15.1.2016 - BU 2016, 1.

For damage resulting from erroneous information, the public body is only liable in cases of malice (intent) or gross negligence on the part of the public agent, and if the agent's incompetence was not recognizable.

1 The public body is liable for damage caused by a public agent in the exercise of a healthcare activity in violation of the duties assigned to their function.

2 When such duties pertain to the direct exercise of a therapeutic activity, the public body is liable for the damage if there is a serious violation of the rules of medical art and if it fails to prove that the public agent is free from fault.

A public body is liable for damage caused by a lawful act only in the cases provided for by law.

1 If a single person or a small number of persons suffer severe damage as a consequence of a police measure carried out in a state of necessity, the public entity is liable according to equity.

**2 Compensation is excluded when the injured party has caused the state of necessity, when they have contributed through their gross negligence to the damaging event, or when the damaging act primarily pursued the purpose of particularly protecting them.**

In the event of death or bodily injury, the public body, taking into account the particular circumstances, may be obliged to pay the injured party or their relatives an equitable monetary indemnity by way of reparation, insofar as the public agent has acted with fault.

1 A person who has been unlawfully injured in his or her personality may claim damages.

2 In cases of fault on the part of the public agent and where the seriousness of the injury justifies it, the injured person may also claim payment of a sum by way of moral reparation, unless the injury has been remedied in another way.

Compensation may be excluded or reduced if the injured party consented to the harmful event or if circumstances attributable to them, to third parties, or to external factors caused or aggravated the damage.

The public official is liable to the public body for the damage caused to it by intentionally or with gross negligence failing in their service duties.

The public body that has compensated the injured party has the right of recourse against its own agent who intentionally or by gross negligence caused the damage.

1 If the damage was caused by multiple public agents, they are jointly and severally liable in case of intent (dolus), and proportionally to their own fault in case of gross negligence.

2 The decision of a collegial body is deemed approved by all members unless proven otherwise.

1 The public entity decides irrevocably whether and, if so, to what extent to assert its claim, taking into account the degree of fault of the public agent and their personal and economic situation.

2 The public agent has the right to be heard.

1 The public body has the right to contract a general or partial insurance to cover the risk derived under the present law, it being understood that the right of recourse against the public agent belongs exclusively to the public body.

2 The authority to contract this policy belongs to the executive body.

1 Claims for damages and moral reparation are asserted against the public body for which the public agent performs their function.

2 When the agent acts on behalf of multiple public bodies, the action must be brought against the body that elected or appointed them, which has a right of recourse against the other public bodies.

1 He who claims damages or moral reparation, before initiating legal action, must give notice of his claim, briefly stating the reasons.

2 The public body must decide within three months, it being understood that silence is considered a negative response.

1 The claim of the public entity against the agent is decided and brought by the executive body.

2 However, such competence belongs to

a) the Grand Council against its own deputies, the State Councillors, and members of the judiciary;

b) the Council of State against members of the superior bodies of the cantonal entities, members of the executive and legislative bodies of the Municipalities, Consortia, and Patricianates. [6]

3 The Grand Council decides with an absolute majority of members and by secret ballot.

[6] Letter in force from 1.7.1990 - BU 1989, 342.

1 The public entity must immediately inform the public agent in writing that the injured party has notified a claim subject to recourse, or has initiated legal proceedings.

2 The public entity also informs the agent about any negotiations with the injured party and with any other interested parties.

1 For actions against public bodies, the ordinary civil court has jurisdiction and applies the Code of Civil Procedure; actions against the State are brought before the court of the cantonal capital or the court of the plaintiff's domicile within the Canton; actions against other public bodies are brought before the court of the registered office of the defendant public body. [7]

2 For actions against public agents and for recourse actions between public bodies, the Cantonal Administrative Court has sole jurisdiction and applies the Law on Administrative Procedure of 24 September 2013. [8]

3 … [9]

[7] Subparagraph amended by Law of 28.1.2002; in force since 29.3.2002 - BU 2002, 81.

[8] Subparagraph amended by Law of 24.9.2013; in force since 1.3.2014 - BU 2013, 480.

[9] Subparagraph repealed by Law of 2.12.2008; in force since 27.1.2009 - BU 2009, 24; previous amendment: BU 1992, 218 and 243.

1 In the event of criminal proceedings, the public body may join as a civil party.

2 Against the decision on compensation, the public agent and the public body have the right to appeal to the Cantonal Administrative Court.

3 The deadlines for appeal run from the expiry of the deadline for appeal to the Criminal Court of Appeal and Revision or from the notification of the judgment of the Criminal Court of Appeal and Revision. [10]

[10] Para. amended by Law of 20.4.2010; in force since 1.1.2011 – BU 2010, 253.

1 In liability proceedings, the legitimacy of measures, decisions, and judgments that have become final and unappealable cannot be re-examined.

2 In recourse actions brought by a public body against a public agent, the court is not bound by the judgment issued in the action for damages brought by the injured party against the public body, as regards the assessment of fault.

1 The liability of the public body is time-barred if the injured party does not submit the notification pursuant to Art. 19 within one year from the day on which they became aware of the damage, and in any case within ten years from the day on which the public agent committed the act that caused it.

2 … [11]

[11] Paragraph abrogated by Law of 23.11.2015; in force since 15.1.2016 - BU 2016, 1.

The right of recourse of a public body against a public agent or against another public body is time-barred in one year from the day on which the body competent to initiate the action became aware of the damage and the perpetrator, and in any case within 10 years from the day on which the public agent committed the act that caused the damage.

The claim for damages by a public body against a public agent prescribes in one year from the day on which the body competent to bring the action became aware of the damage and the perpetrator, and in any event within 10 years from the day on which the public agent committed the act that caused the damage.

1 The limitation periods are suspended in the event of disciplinary or criminal proceedings for the same facts, starting from the opening of the disciplinary inquiry, or from the constitution of a civil party respectively, until the conclusion of the proceedings.

2 The public entity shall communicate such acts to the public agent, save for particular reasons.

Federal private law applies on a subsidiary basis.

The Law on the Application and Supplementation of the Swiss Civil Code of April 18, 1911, is amended as follows

Art. 195

The liability of public bodies and public agents is governed by a special law.

With the entry into force of the present law, the following are repealed

a) Articles 32, 33 paragraph 2, and 34 of the Code of Civil Procedure of 17 February 1971;

b) the provisions of the Law on the Liability of the Council of State of 28 May 1841 insofar as they are contrary to the present law;

c) ... [12]

[12] Letter repealed by Law of 2.2.1999; in force since 1.5.2000 - BU 2000, 129.

1 This Act applies to damaging events that occurred after its entry into force.

2 After the expiry of the deadlines for exercising the right to a referendum, and once the approval of the Federal Assembly has been obtained for Art. 22 para. 3, this Act shall be published in the Official Gazette of Laws and Executive Acts.

3 The Council of State shall determine its entry into force. [13]

Published in OG 1989, 337.

[13] Entry into force: January 1, 1990 - OG 1989, 342.