The civil liability for damages caused by things in custody

The Article 2051 of the Civil Code provides verbatim that everyone must be held  ” liable for damage caused by things in his keeping, unless you feel the unforeseeable circumstances .”

According to standard, then, the damage caused to third parties by a tangible asset (eg: a shelf of a shop that separates it from the wall, eventually leading to a customer event)  liability  on the part of the caretaker of the same (the shopkeeper ), unless they fail to prove that the damage was caused by the fact of him not responsible  (eg: the earthquake or customer behavior).

What is the guardian ?

According to the Supreme Court of custody relationship it occurs when an entity has the legal availability of good material , with tripping power over it ( Cass. Civ., Sec. III, 18.09.2014, n. 19657) .

The owner of a property, having the legal availability and therefore the custody of the walls and plants , is solely liable for damages caused to third parties by such structures and systems (think of the damage caused by the collapse of the ceiling or loss of gas).

If the property is rented, however, the apartment’s tenant (or local) will be responsible for damages caused to third parties by movable property within it (the shelves or lamps).

The arrangement of ‘ art. 2051 cod. civ. It seems to leave little room for interpretation. In fact, the norm has created over time a fierce doctrinal and jurisprudential debate on three fundamental aspects:

1. The nature of the liability  of the custodian (subjective or objective);
2. The causal link between the damage and the thing kept.
3. The notion of  unforeseeable circumstances and its demonstrable by the keeper.

1) The nature of liability

For many years the courts have questioned the nature of the liability imposed on the  guardian  of the good that has caused the damage.

RESPONSIBILITY ‘SUBJECTIVE

According to a minority orientation, older, this responsibility is subjective: to be assessed case by case, whether the custodian has complied with diligence to its obligation of supervising and if it, by its nature, is or is not  dangerous .

Therefore, the person who proves that he kept it diligently, must be judged at fault, especially if the good, by its nature, can not be guarded.

RESPONSIBILITY ‘STRICT

In contrast, the majority of case-law – and more recently – believes that the damage caused by things in custody is based not on a behavior or activity of the keeper, but on a relationship (custody) intervening between it and the thing harmful.

This interpretation of the standard door then two consequences:

1. They are not relevant in any way the conduct of the custodian and compliance or not a duty of supervision . The fact that the keeper was diligent does not exclude its liability for damage caused by the custody good;
2. there is a duty of custody and control in relation to things without their own dynamics:  it is not necessary that it is likely to cause damage to its nature.

The person who claims to have been injured by things in custody and intends to take legal action to obtain compensation thereof, will therefore have the burden of proving:

1. the custodial relationship between good and responsible;
2. the existence and extent of the damage;
3. the  causal link between the harmful event and the good in custody.

2) The causal link

On this last element of the law it came only in the last decade to a shared vision regarding the interpretation of the standard.

In the past, the Supreme Court considered that the proof of existence of the causal relationship between the thing and the harmful accruing to the damaged event, by the demonstration of conditions potentially detrimental owned by the thing , be assessed in the same way as the normal use of it.

In particular, according to the judges of legitimacy, the nature inert of the thing kept (the boiler, the road, a pipe) would be likely to cause damage to third parties only in the case in which the damaged demonstrate the potential danger of the same (think of the the case of the sudden outbreak of the boiler or a pipe or the opening of a hole at the center of the road).

However, in recent years, the Court has expanded the radius of the evidence, holding that the causal link can be demonstrated not only in the event that the effect of an internal dynamism to it , triggered by its structure or its operation (outbreak of the boiler, electrical discharge, landslide of the road or the like), but even if it is determined by external agents , such as an object or the behavior of a person, to make the thing , per se static and inert, potentially dangerous.

The injured, then, has the burden of proving that the condition of the premises has led to an objective situation of danger , that makes inevitable the damage (think to the floor of a room of water sprinkled following the cleaning, on which a customer slides banging his head).

3) The fortuitous

The evidence of the first two items to the injured party configures the ends of the caretaker of the property, as mentioned, a strict liability from which he can escape only by proving the existence of unforeseeable circumstances , that is an extraneous factor which, by its character of unpredictability and uniqueness, it is likely to break the causal link.

E ‘now exceeded, in fact, the jurisprudence that recognized in the observance or less compulsory supervision by the guardian a suitable element to break the causal relationship between the thing and the damage.

According to the judges of Piazza Cavour, in fact, the fact that the guardian proves only that it has fulfilled its custodial obligations with diligence does not exclude its liability for damages caused by the well guarded, as ” the standard function is to impute responsibility to those who are in a position to control the risks inherent to the thing ”  (Cass. Civ., Sec. III, 2.2.2006, n. 2284; See. also Cass. n. 25243 of 29.11.2006 and Cass. n . 1948 of 10.02.2003).

What is the unforeseeable circumstances and what are the external factors that are appropriate to set it up?

The fluke consists in an unpredictable and inevitable external factor, extraneous to the sphere of action of the caretaker and suitable,  ALONE, to produce the event  harmful.

Among the factors that may result in damage to third parties to the case law identifies both external causes  (eg the collapse of a landslide, the bursting of a tire, human actions), and the same behavior of the injured .

The keeper, then, to get rid of the presumption of liability imposed on it, it will have to prove that the fortuitous event had a ‘ causal efficacy TOTALLY such as to break the causal link between the thing and the harmful event.

The partial interruption, in fact, only lead to a decrease of the responsibility of the guardian proportional to the incidence of the external factor.

For example, if a person slipping on the wet floor of a room, the owner may break free from the presumption of guilt by demonstrating that:

• another customer, just before the event , she inadvertently bumped a shelf, dropping to the ground a glass bottle, breaking, had poured on the floor all the liquid;
• the injured was running across departments or walking without paying due attention.

The existence of both of the above factors will almost certainly exclude the causal link, releasing the keeper; on the contrary, proof of just one of them it could only diminish the guilt in proportion to the incidence of the existing external causal factor.

Applicability of the public administration

Controversial question is whether even with the Public Administration is responsible for applicable art. 2051 cc for damages suffered by citizens because of ‘ lack of or insufficient maintenance of public goods (roads, plants, objects) .

On this point it has developed over the years a well-established case-law, which delimited the responsibility of the PA, in accordance with art. 2051 cc, to those circumstances in which what is ” custodibile “: it must possess certain characteristics (size, intended use, etc.) That make it possible for the PA, a  continuous control capable of preventing the potential dangers for third.

Therefore, if it is established that such control is physically impossible (as in the case of roads in open country), with the PA would not be qualified strict liability, but a responsibility under Article. 2043 of the Code. civ ., limited to the level of actual guilt.

In this case it should lie on the damaged the burden of proving the anomaly of the well (eg .: a large hole, a guard-rail divelto protruding towards the road), as well as damage and causation; as more and would be responsible for testing the fluke to the public good manager (eg .: the possibility for the injured, to perceive or predict with the utmost care the aforementioned anomaly) (Cass. Civ., Sec. III, May 19 2011, no. 11016).

IN SUMMARY

The article 2051 cod. civ. It provides that everyone should be held “liable for damage caused by things in his keeping, unless you feel the unforeseeable circumstances.”

The law has created over time a fierce doctrinal and jurisprudential debate on three fundamental aspects:

1. The nature of the liability  of the custodian (subjective or objective);
2. The causal link between the damage and the thing kept.
3. The notion of  unforeseeable circumstances and its demonstrable by the keeper.

In order applicability of Article. 2051 cc also to the PA for damages suffered by the user because of ‘ lack of or insufficient maintenance of public goods (roads, plants, objects) , the courts have held that liability subsisting only if the goods are “custodibili”.

Otherwise you configure from the PA a responsibility under art. 2043 cc proportional to the actual degree of fault.

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