Newsletter-21

259 LAW OF OBLIGATIONS Conditions of Organizational Liability Firstly, the conditions that are required for tort liability shall also be required for organizational liability. In other words, in order for a person to be responsible under this provision, an illegal act must have been committed, as well as damage suffered, and a causal link be- tween the act and the damage must exist. However, under TCOArticle 66/f.3, liability is set forth as an absolute liability and, consequently, fault shall not be required. In addition, different from the employer’s liability, in order for an organizational liability to arise, existence of the business, as well as occurrence of damages due to the activity of such business shall be required. Novelties of the Provision After the enactment of TCO Art. 66/f.3, a person who employs personnel at an organization operating as a business, shall not be ex- cluded from liability by solely proving that he acted with due care in selecting, instructing and supervising – or in this vein, claiming that the damage occurred due to the lack of a sufficient number of employees in his business – an employee. As well, he shall prove that the organization was set up correctly and appropriately. Such responsibility may be in question; for example, as the edi- tor’s liability due to the articles that were written by his employees in a newspaper that violate the rights of third parties, or in the case of an organization’s emergency department, i.e. night shifts or Sunday shifts of a hospital, or a nurse not informing a doctor of a certain complica- tion, or the performance of surgery by a doctor who works night shifts, or the undertaking of an at-risk childbirth by a midwife instead of a doctor 2 . 2 For these examples, please see: Ahmet TÜRKMEN , 6098 Sayılı Türk Borçlar Kanunu’na Göre Organizasyon Sorumluluğu (TBK m. 66/f. 3), İÜHFM V. LXX, N. 2, Y. 2012, p. 264-265.