Country:

Italy

Court:

Cass. civ. 29-9-1995 n. 10274, Foro it., 1996, 954.

Topics:

Defect definition, reasonably expected use of product.

Articles:

Before the implementation of the directive.

Facts:

The plaintiff claimed compensation for physical injury which had occurred when he was a twelve year old child and his hand was crushed into the chain joint of a swing. Because this joint was structured like scissors, his thumb was severed from his hand. The accident occurred while he was standing on the machine instead of sitting properly. The manufacturer objected that the damage has been caused not by a defect of the swing but by an improper use of it, which was not foreseeable.

Legal questions:

The question is to decide whether or not the conduct of the victim was reasonably foreseeable by the manufacturer.

Decisions:

The court stated that the swing's manufacturer was not liable because the child's conduct (he was standing on the machine instead of sitting properly) is not one that can be considered reasonably foreseeable. Therefore the product was not defective following the definition of defect given by the European directive, even if it was not yet applicable to the case.

Comments:

The case happened when the European directive was not yet applicable. Nevertheless the Court asserted explicitly that the new discipline could be useful in order to enlighten the correct application of the old one. Doing so, the Court emphasised the fact that she did not felt any gap or any interruption between the old and the new discipline.

The doctrine criticised the Courts decision of qualifying as unforeseeable the child's conduct.