Country:

Italy

Court:

Trib. Monza 11-9-1995, in Resp. civ. e previdenza, 1996, 371.

Topics:

Defect definition; several and joint liability; non-material damage.

Articles:

art. 6 al. 1; art. 5; art. 9.

Facts:

An inattentive worker was seriously injured by an industrial machine with exposed parts. The victim sues the machine's manufacturer and the employer claiming compensation. About manufacturer's liability he argues that the machine should have been designed with safety features to prevent such accidents. The manufacturer argues that the risks could have best been avoided by the user exercising care because he should have known that such a machine was dangerous. Furthermore the worker claim damages from the employer without specifying under which legal provision the latter would been held liable.

Legal questions:

Was the worker entitle to expect more safety from the product? Is there joint and several liability between the manufacturer and the employer?

Decisions:

The court asserts that the worker could not know that the machine was dangerous because there was no evidence in the case that he started to work long before the accident occurred. Therefore it rejected manufacturer's defence asserting also that the machine was especially unsafe for a short worker like the plaintiff. The employer is held liable under the general tort law, lacking a more precise request by the plaintiff. The court asserts that there is a several and joint liability of both the defendants. Therefore it condemned both to compensate the physical injuries (L. 75.000.000 for 9 month of temporary infirmity and L. 146.279.535 for 40% of permanent infirmity), the loss of work for 9 months (L. 27.665.895) and also the non-material damage (L. 50.000.000).

Comments:

To solve such a dispute the court had to decide if the machine provided the safety that a person should reasonably be entitled to expect. The law doesn't specify if the relevant expectations are those of the user or those of the buyer. The first problem arose from the fact that here the victim wasn't the person who bought the machine, i.e. the person who made a cost-benefit analysis deciding how much to spend for the machine. Hence the court couldn't detect the user's expectations taking into account some objective elements like the price paid for the product. Probably it would have been better to make the victim sue the employer under labour law; then the employer, as product's buyer, could sue the manufacturer under product liability law: it would have been clear, in this case, that the relevant expectations were those of the buyer. Probably the ambiguity of the product liability law (which is constantly shifting between contract liability and tort law) arises exactly from the fact that it has to take care not only of buyers, but also of bystanders.

Concerning the joint and several liability, the Tribunal used the art. 9 of the Italian law, which explicitly allows the manufacturer to share his liability with any other person who has been found liable for the same injury. It does not matter if, like in that case, the manufacturer is held liable under the product liability law and the other person under the general tort law, because Italian legal system allows the non-concurrence of contractual liability and civil liability for the same injury. And it does not matter if the European directive allows the joint and several liability only among persons who have been held liable for the same injury "under the directive's provision", because the Italian law does not require this last boundary.

The tribunal held jointly and severally liable the manufacturer and the employer and condemned both to compensate also the non-material asserting that the employer's fault has been proven and not mentioning the question of the evidence of the manufacturer's fault.