Учебный год 22-23 / Alpa_Italian_Private_Law_University_of_Texas

262 Wrongful Acts and Civil Liability

The former refers to the harm suffered by parents who, through medical error or the inefficacity of contraception, are forced against their will to bring a child into the world. The latter refers to the harm occasioned by a hereditary illness before birth being passed from parents to offspring.

8.4.5. Property

Civil liability can also attach to interests involving property. Property can be protected through an action to recover land, but the breach of any other property interest is redressable by way of damages, based on Art 2043 civil code. Many rules on property, however, make provision for this general action in response to specific situations, for example, where harm is caused to neighbouring property through breaches of building regulations (Art 875 civil code) or excavation work (Art 840(1) civil code) and so on (Arts 890, 909, 915, 917 civil code). Harm to property does not need to be demonstrated over and above the simple verification of the circumstances.

Possession can also be protected through the liability action in Art 2043 civil code.

8.4.6. Nuisance and environmental pollution

Among the limits placed on the use to which an owner puts his land are rules against nuisance in the wide sense of any discharge of smoke or heat, noise, vibrations, inundations of water or other fluids originating on one parcel of land and causing harm to another (Art 844 civil code). The limit is for the benefit of private interests. The rules are designed to protect a property owner from harm caused by the actions of his neighbour and to enable him to claim damages in tort (Art 2043 civil code) and if necessary to prevent the harmful activity (by seeking an injunction) or to restore the status quo ante.

The landowner may on the other hand agree a sum by way of indemnity for activities which the neighbour intends to pursue, thus allowing the discharges to continue and be voluntarily acquiesced in for an appropriate price. The law thus provides derogatable rules for the benefit of private interests.

Discharges are prohibited only insofar as they are intolerable, that is, exceed the criteria of normal tolerability. This is a factor that may be taken into account at the court’s discretion and is commensurate with ‘that level normally recognised by society as being allowed in a particular place at a particular historical moment’. The court must be guided by ‘an objective assessment of a just mean taking into account the nature, cause and content of the nuisance’ as well as the place where it occurs.

The condition of the place is to be understood not merely topographically or according to nature, but also from a social perspective, that is in relation to the type of activity normally carried out and the way of life and habits of the population.

The problem of nuisance is particularly acute where industrial activity is concerned, and it is precisely in this context that the issue usually arises. An enterprise that undertakes activities that involve nuisances such as discharges has an interest in continuing those activities, an interest in conflict with those of its neighbours who would have the discharges reduced or eliminated. If the two parties fail to come to an agreement, the law provides various criteria for resolving the matter (Art 844 civil code).

The first criterion is that of normal tolerability. Discharges will only be prohibited if they constitute a nuisance going beyond the norms of tolerability outlined above. They may, however, still be permitted if the respective landowners arrive at an agreement for compensating for the nuisance. The second criterion is the juxtaposition of interests, pitting property interests against those (namely, the national economy) favouring production. If the productive activity that produces the nuisance is important to the national economy, the landowner cannot prevent it; he can only obtain compensation.

The court may also seek to restore the status quo ante by forcing the tortfeasor to adopt specific measures involving installation of purifying equipment and so on to avoid the discharges or at least to reduce them and mitigate their effects.

The final criterion, employed only as a last resort, is first use precedence. Where two interests are in conflict the court will favour the one which has been enjoyed the longest.

The system that reconciles conflicting interests, whether between two landowners, one landowner and a business enterprise, or two enterprises where one is creating a nuisance to the other’s detriment, is governed by Art 844 civil code in accordance with private law principles. It could not be otherwise, given that these rules are designed to protect private property.

It is, however, useful to mention the fact that these rules contain elements not all of which are in line with the protection of private property. The ideology of the time they were introduced preferred dynamic property (business enterprise) to static (agrarian) property, because it was necessary to facilitate and not hinder the country’s industrial development. So the courts have to set the landowner’s interest alongside that of the national economy, and if the economic activity causing the nuisance is deemed socially useful the mere fact that it harms its neighbour cannot be allowed to stand in its way.

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8.4.7.Choses in action, rights of enjoyment, expectations, legitimate interests, class interests

The problem of civil liability and the protection of choses in action has stimulated much debate.

Case law has for a long time approached the question restrictively and declined to admit the possibility of redress. In the famous case where the question was first raised the Torino football club sought damages from the airline company who organised the flight in which the plane carrying the football squad tragically crashed in 1947 killing all the members of the team. The Court of Cassation excluded any right to claim damages, stating that the interests raised by the football club did not merit protection (Cassation decision no. 2085 of 1953).

The position taken by the courts has changed since then. In a case involving the death of a footballer in a car accident Torino football club won damages on the argument that the services the player had rendered were not fungible (Cassation joint session no. 174 of 1971). This curious outcome was reversed several years later, however, when the football club was unable to demonstrate that they had suffered substantial harm. Since the gate receipts the following season did not fall – in fact they rose – there was no right to damages.

The traditional theory, which denied any right to damages for infringement of a chose in action because no unqualified right has been breached, had been rebutted by academic commentators.

Two aspects of choses in action need to be distinguished. One is intrinsic to the relationship between creditor and debtor and is relative or dynamic, in that the creditor can exercise the right against the debtor who in turn has an obligation to realise the creditor’s interest. The other is extrinsic and static, considered as a value attaching to the creditor’s property. This right must be respected by all and, being assertable against the whole world, is unqualified. Breach of such a right (or, more accurately, of this aspect of a chose in action) certainly amounts to a wrongful and actionable harm.

As to expectations, where legal expectations are concerned, damages are recoverable. This has been decided in cases of right to maintenance, which the victims’ parents raised against the person who by killing their child had deprived them of this revenue.

The most recent case tends towards allowing damages for breach of legitimate interests, that is, an expectation towards the public administration which is frustrated because an unlawful administrative action has impeded or delayed the realisation of that interest.

Therefore where an administrative decision is illegitimate and quashed by an administrative court the proposition the public administration is liable provided that causation and damage can be proven.

Another much-debated topic, particularly in recent years, has been the possibility of obtaining redress through the civil liability rules for damage to class interests. Can the inhabitants of a neighbourhood campaigning against the environmental degradation caused by a local industrial installation take the company to court and claim a remedy for the damage caused by the pollution? One Cassation decision has held that redress is available only where the right to health or a property right has been breached.

Some other decisions have taken a new perspective on property law, the importance of private property and the balancing of conflicting interests. Initially it has been held that when siting nuclear power stations the right to health of the inhabitants of the area must be protected. However, the importance of this right was recognised only insofar as it was connected with a property right enjoyed by the potential claimants. In following cases, however, concerning the conflicting interests of a group of landowners opposed to the construction of a purification plant for industrial waste and local inhabitants seeking to defend their right to health by seeing that the plant was built, it was held that the latter right prevailed and created a veritable ‘class interest in the environment’.

The issue is complicated, however, by the question of procedural competence. Who can legitimately bring a case on behalf of a class of claimants? An environmental protection group, local councillors, an action committee, etc? In the current state of procedural practice, groups do not have standing in the civil courts except where specifically so provided by law, while law no. 349 of 8 July 1986 now expressly recognises the standing of the Ministry for the Environment to seek remedies for ‘environmental harm’, but as a matter of general principle this does not appear to exclude other interested parties bringing actions individually or collectively against acts of damage to the environment.

8.5. Specific situations in civil liability

8.5.1. Liability of employers and principals

Article 2049 civil code provides that masters and principals are liable for harm caused by their servants and agents in the exercise of tasks conferred upon them. The expression masters and principals is archaic and derives from the previous code.

This law is intended to affirm the objective liability of those who give directions to others and who are materially responsible for the harm. There does not have to be a strict relationship (such as an employment or agency contract): a task or duty undertaken as a matter of courtesy or for family reasons would be enough. What is important is the exercise of tasks conferred upon a servant or agent.

animal power. Today it is mostly confined to animals used in the countryside and harm caused by domestic animals in towns. It is not restricted, however, to the result of direct acts of the animals (such as attacking people) but also to any accident attributable to the animal. In this connection too the code provides that an animal’s owner, or the person who for the time being has the use of it, is liable for harm caused by the animal, whether it was in his custody at the time or had been lost or had run away, unless he can prove inevitable accident (Art 2052 civil code).

In Arts 2051 and 2052 civil code a defendant can avoid liability by showing that the event amounted to inevitable accident, by which is meant any unforeseeable and unpreventable natural incident that causes harm. The evidential burden of inevitable accident lies with the defendant, not the victim. If the defendant cannot substantiate it, he cannot escape liability. He is also liable for harm resulting from an unknown cause.

The owner of a building or other construction is liable for harm caused by its ruinous state, unless he can show that this state is not a result of inadequate maintenance or defective construction or repair (Art 2053 civil code). Ruinous here means ‘having things falling off’ either the building or objects attached to it, including ornaments or anything manufactured or there by chance which becomes detached or even snow falling from it. The owner is liable even if the ruinous state is the fault of whoever constructed or restored the building. He does in this case have a right of recourse against the person responsible for the harm (for example, a contractor).

8.5.4. Circulation of vehicles

Certainly the most fertile area for civil liability claims is the circulation of vehicles. From the earliest days when vehicles first appeared on the roads there was a body of law to regulate traffic (law no. 739 of 1912). This law was modified in 1928, then in 1933, and some of it survives in the civil code. Article 2054 civil code imposes a presumption of liability on the driver of a vehicle. To rebut this presumption the driver must show that he did everything he could to avoid the accident (Art 2054(1) civil code). The operative principle is, unlike in many other European countries, not the custody but the use of the vehicle. The user of a vehicle assumes the risk of liability for any harm he causes. It is debatable whether this is an example of strict liability or merely of presumption of fault.

When vehicles collide it is rebuttably presumed that both drivers are equally responsible for the damage caused to their respective vehicles. The owner of the vehicle (or in his place the usufructor or a person who

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has acquired it with a stipulation as to retention of title) is jointly and severally liable with the driver, unless the former can show that the vehicle was being driven against his will (Arts 2054(2) and (3) civil code). Strict liability adheres to these defendants for any defects in construction or maintenance (Arts 2054(final) civil code), though in this case issues of consumer protection could arise (see below).

The presumption of fault does not operate in favour of a passenger in the vehicle, but applies for the benefit of third parties who have nothing to do with the use of the vehicle in the face of the risks and dangers inherent in such use. By the same token it does not operate in favour of a person who is a passenger because they are related to the driver or who have been given a lift out of courtesy (for example, a hitchhiker). These parties would need to prove fault to obtain a remedy from the driver.

The system in force today is rather dislocated and mechanistic. It thus promotes litigation instead of avoiding it, does not protect victims properly and is altogether inadequate for a modern society. In 1973 the Council of Europe approved the Strasbourg Convention providing for strict liability on the part, not of the driver, but of the keeper of the vehicle. Even the system of compulsory insurance, introduced very late into Italy compared to other European countries (law no. 990 of 1969), attracts justified criticism. The guarantee fund provided for victims of unidentified vehicles is too small. The system makes no distinction between very serious and trivial injury, and there are many cases where the scheme does not apply as a result of the impositions and contractual power of insurance companies.

8.6. Producers’ liability for consumer goods

Consumers often suffer damage to property or personal injury as a result of defects in the planning or manufacture of consumer goods or inadequacies in the instructions for their use. The victim may seek a remedy against the vendor using the laws on guarantee provided in Arts 1490ff civil code, but as stated above, this is not a fruitful course of action as the guarantee and contractual liability are often limited and in any case the vendor may have had no knowledge of the state of the product and so may escape liability by demonstrating his own good faith. Instead, the consumer may turn directly to the manufacturer for redress, invoking Art 2043 civil code. Here, too, there are serious problems, because he or she has to prove fault on the part of the manufacturer and this is a difficult thing to do, often fatal to the consumer’s claim. As a result, legal science has made many attempts at judicial constructions that would ease the evidential burden on claimants, sometimes involving strict liability of manufacturers (Arts 2049, 2051 civil code) and sometimes presumption of fault.

Of the earlier cases, the most important is a judgment that affirmed for the first time the liability of a manufacturer that released defective products onto the market. This is based on the manufacturer’s ‘presumed’ fault – the actual case was one of biscuits adulterated before purchase causing stomach upsets and fever. So, in the absence of actual evidence of the manufacturer’s negligence the court can infer it on the basis of ‘res ipsa loquitur’.

Case law has also invoked other rules on liability to defend consumers’ interests. One of these is Art 2050 civil code which provides that the manufacture of certain products, such as gas cylinders, aerosols, cosmetics and medicines, is intrinsically ‘dangerous’. Another is Art 2049 civil code applying to defects in manufacture or in the accompanying planning process.

The code provides specifically for one area of product liability: defective vehicle construction (Art 2054(final) civil code).

8.6.1. Legislative intervention: consumer protection

Protection of consumer rights is without doubt one of the principal areas of involvement of European community law, which has had a stimulating effect on the development of domestic law, particularly in countries like Italy where the existing legislation was incomplete, defective and so offered inadequate protection to consumers.

Presidential decree no. 224 of 24 May 1988 gave effect to the EU directive of 25 July 1985 on manufacturer’s liability. Italy, after great Britain which adopted the directive in the form of the Consumer Protection Act 1987, was one of the first countries to put it into effect. The decree substantially reproduces the principles established in the directive, namely, strict liability for manufacturers and, in the case of goods entering the EU from outside, importers of products, to which is added the liability of intermediaries who put products of unidentifiable origin onto the market. Liability, though not fault-based, is not ‘absolute’ either, as it admits of numerous exceptions. The manufacturer can demonstrate that the product is typical of others on the market, or that they have abided by the relevant laws on manufacturing and safety, or that the risk was not foreseeable because of the state of knowledge or technology obtaining at the time the product was marketed (so-called development risks).

Manufacturers are jointly and severally liable together with other participants in the chain of manufacture, for example, producers of raw materials.

The consumer must show that harm has occurred, that the product is defective and a causal link between the two. A product is defective when it does not meet the level of safety that the purchaser might reasonably expect.

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Redress can be obtained only in respect of physical damage or personal injury occasioned by the defect, and not of the cost of the product itself.

Standard form clauses purporting to exclude liability are void, whether they are proposed by the manufacturer or by an intermediary.

Currently, therefore, the gaps between Italian law and the most advanced European nations in implementing the directive have been narrowed, especially as there are also special laws covering aspects of consumer protection, such as:

(a)means of manufacture of products, their marketing and labelling;

(b)advertising products and services;

(c)sales methods;

(d)consumer credit;

(e)savings contracts;

(f)travel and tourist organisations.

8.7. Liability of the public administration

8.7.1. Introduction

The history of public administration liability is a very interesting chapter of the law. For a long time it was held – and case law served to consolidate the view – that the public administration could not be liable for the harm caused by its employees to third parties, and that if liability has to be attributed it fell on the individual employee.

The public administration enjoyed a kind of immunity both on ideological grounds, namely, that the public administration served the good of the citizens and was thus incapable of causing them harm, and on the p r a c t i c a l grounds that it was expedient to shield the administration from the costs of redress that would deplete the wealth of the community.

More recently, however, the opposite principle has been progressively affirmed.

8.7.2. The current situation

Article 28 of the Constitution has sought to reconcile these two demands, foregrounding the direct responsibility of public employees and civil servants. These are held ‘directly responsible in criminal, civil and administrative law for actions they carry out in breach of the rights of others’. Civil liability, the article continues, ‘extends to the state and to public bodies’. The interpretation of this article has given rise to many

problems. It can be said that it duplicates direct liability, sharing it between the body and the individual employee. An aggrieved citizen is, however, served in either case, as the employee, knowing that he can be held personally to account for harm he causes to third parties, will be prompted to pay due attention to the possible effects of his actions on their rights.

It should be pointed out that the direct liability of the public body will apply only insofar as the employee’s actions were within the scope of the duties he owed to that body. Thus harm caused by employees pursuing their private affairs is excluded as is harm occasioned by employees in performing their functions but doing so in a way deliberately calculated to procure them an illicit gain.

The current phase of development of legal theory and case law on public administration liability shows signs of ferment. On one hand, concepts used in interpretation are being reviewed: a general distinction is made between external liability, for harm to third parties attributable to actions, conduct and decisions of the public administration, and internal liability, for harm attributable to the conduct of individual employees. At the same time, the ‘privileges’ hitherto enjoyed by the public administration are being progressively whittled down. Case law is revisiting old and new areas of public administration responsibility, from road maintenance and carrying out public works generally (for example, where an apparently adequate road surface concealed hidden dangers for the user) through the exercise of dangerous activities (for example, railways), liability for illegal occupation (of land) and delay in implementing decisions (in one case, late settlement of a question relating to pensions) to the promulgation of unlawful decisions (where the ‘fault of the public administration is’, ‘manifest ipso facto in the breach of the law’).

Now, therefore, it is beyond dispute in both case law and legal theory that ‘the actions of the public administration, even where it exercises its unfettered discretion, must respect not only the limits established by law, but also the primordial principal of neminem laedere’ in regard to which the judge must ‘ascertain whether the administration has conducted itself in a blameworthy way so as to cause, contrary to the aforementioned injunction to harm no one, the breach of an individual right’ and so give rise to a remedy as per Art 2043 civil code.

The liability of the public administration for breach of good faith in negotiations has been affirmed, and for giving out false information that caused harm to others. There is, however, a tendency to exempt the public administration from the presumption of liability provided by Art 2050 civil code in connection with dangerous activities, usually by reference to the public utility of the activity, for example, the activities of the armed forces, and an ordinary judge cannot question the suitability