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The Italian Supreme Court has once again dealt with the question of custodians’ liability, provided for under article 2051 of the Italian Civil Code.

The case at hand concerned a car accident that occurred on a national highway as a result of ice forming during the night (as a result of which a lorry slid off the road, leading to the driver’s death).

The evidence acquired during the course of the proceedings demonstrated that the Italian Highways Authority (ANAS) had sprinkled salt on the road in question (to no avail since ice had re-formed some hours later) and the plaintiff had been travelling at a speed which was slightly faster than the speed limit indicated on the road signs.

The judge of first instance rejected the claim that Anas was liable, ruling that the latter had sprinkled salt on the road in question and had, therefore, diligently performed its obligations.

The Court of Appeal, on the other hand, overturned the aforementioned judgment, holding that Anas had a 60% liability.

The Supreme Court upheld the Court of Appeal’s ruling, holding that Anas was subjected to the provision set forth in article 2051 of the Italian civil Code (c.c.), insofar as it owned and managed the national highway in question.

The Supreme Court also confirmed that custodians’ liability is strict, with the result the burden was placed on Anas to prove that the accident was the result of a fortuitous event, to be construed as an external event that was objectively unforeseeable and unavoidable (which could also consist in a third party’s or the plaintiff’s acts or omissions; cfr. Italian Supreme Court no. 15383/06).

Anas should, therefore, have proved that it had performed – with a standard of care which was commensurate to the nature and function of the road managed by it and to the specific situation that had come about – all of the duties placed upon it by article 14 of the Italian Highway Code in terms of checking, supervising and maintaining such road.

The Supreme Court reaffirmed, therefore, the difference between the tortious liability provided for under article 2043 c.c. and that provided for under article 2051 c.c..

Tortious liability is based upon the defendant’s willful or negligent acts whereas the liability provided for under article 2051 of the Italian Civil Code is strict (and is only excluded as a result of unforeseeable or inevitable events breaking the chain of causation).

The aforementioned judgment would seem, therefore, to be in line with the recent case law on custodians’ liability and would appear to highlight the increasing importance that the courts place on the plaintiff’s conduct since, in cases of strict liability a very strict burden of proof is placed upon the defendant.

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