Country:

Italy

Court:

Tribunale di Roma 17 march 1998, in Foro it., 1998, 3660.

Topics:

Defect, reasonably expected use of product; non-material damage

Articles:

art. 6 al. 1 sub b; art. 9.

Facts:

The claimant sued the manufacturer of a bottle of sparkling water which exploded injuring his right hand. The manufacturer objected that the claimant has the duty to prove that the personal injury was due to a defect of the product and not to an improper use of it. The claimant proved through a witness that the bottle exploded when he took it from the fridge of the shop and that he had not done anything wrong.

Legal questions:

Is the personal injury suffered by the claimant due to a defect of the product or to an improper use of it?

Decisions:

The Tribunal held the manufacturer liable basing the decision on the witness declaration. Therefore it condemned the manufacturer to pay L. 68.000.000 for the personal injury (L. 63.125.00 for 18% of permanent infirmity and L. 4.875.000 for temporary infirmity of two months) plus the pecuniary losses.

The non-material damage is not compensated because the Tribunal asserted that in a strict liability case is lacking the fault, which is required by art. 2059 c.c. for the recoverability of this kind of damages.

Comments:

It has to be remarked that a recent decision of the Corte di Cassazione has overruled the doctrine on non-material damage assuming that this kind of damage has to be compensated also in strict liability cases because there the fault, even if not investigated by the Court, is presumed as existing by the law (C. Cass. 12 may 2003 n. 7282, in Resp. Civ. e prev., 2003, pag. 676). If this new doctrine will be confirmed by further decisions of the Corte di Cassazione, then it will be absolutely relevant to establish if the directive charge the manufacturer with an absolute strict liability, or with a strict liability which presumed the existence of the fault.

See also: Tribunale di Vercelli, 7 april 2003.