Court of Cassation, 3rd Civil Division, 11 March 1991, n. 2555
Cameretti Giovanni v. Banco di Napoli
In a complaint of 8 August 1983 Giovanni Cameretti sued the Banco di Napoli in the Court of Naples, claiming that on 7 March 1983 at around 12:00, while he was at the Banca di Napoli branch in Margellina, agency number 27, carrying out banking transactions, he was gravely injured during an assault by criminals who had entered the premises in the absence of any precautionary measures of said agency. He was hospitalized for a bullet wound and was completely incapacitated for a period of 120 days; verifications were underway to ascertain consequential disabilities. The complaint argued that this robbery had not been the first at agency 27 and thus the insufficiency of the protective measures provided and the fact that after the assault the bank had created additional security measures demonstrated the bank's joint liability in the production of damages he suffered. He asked therefore that the bank be held liable to compensate him for said damages. ***
The defendant claimed that it could not be charged with any wrongful act, even by omission, since it was a fact that occurred and had developed completely outside of its own sphere of initiative and in the absence of any legal obligation to impede the event.
The Court dismissed the complaint.
The losing party appealed to the Court of Appeals of Naples, which rejected it in the judgment of 26 January 1987, observing, with diffuse argumentation, that the Banco could not be held responsible since the principles of liability provided for under articles 2051, 2050 and 2043 C.C. were not applicable.
Cameretti appealed against this judgment (...) and the bank counter-appealed.
Reasoning
In its first argument the appellant claims the "violation and false application of article 2050 in relation to art. 360 n. 2 e 5 C.S.L." He argues that the applicability of article 2050, which demands the requisite of dangerousness of the activity, and that it be so "by its nature" or that it becomes so "because of the nature of the means used for carrying it out" was [erroneously] excluded; [and that] a literal interpretation can in effect mandate the exclusion of the exercise of credit in itself as a dangerous activity and that the techniques of organization damaging; but he contends that it is an entirely formal argument that only the activities specified by the Law for Public Security and other special laws are dangerous activities foreseen by the norm in question. Such argument is fallacious [the appellant argues] if placed in a normative reality such as that of civil liability where the principle of "atypicalness" dominates.
The appellant adds that the activity's "riskiness" is demonstrated by the formulation of insurance policies that cover the risks to which clients are exposed during banking operations. In the case before us, the Banco had signed a policy that provides an indemnity and this fact should be evaluated in the social context, in that the Bank itself is conscious of the dangerousness (of its activity) owing to the sort of money available at any of its agencies.
This argument is unfounded.
We must repeat the principle applied by the trial court, that dangerous activities - according to which article 2050 of the Civil Code establishes a presumption of liability against whoever carries them out - must be understood to be those qualified as such under the law of Public Security and by other special norms (such as those against accidents in the workplace) as well as those that have inherent dangerousness in the means used or in their own nature.
The respondent's defense is therefore useless (...)
Nor can banking activity be deemed "risky" in the social context based on the consideration of the "formulation of insurance policies that cover the risks to which clients are exposed during banking operations."
(...)
In fact, if there is a "risk" for the client, it does not derive from the very nature of banking activity, which can constitute only an opportunity for such a risk, even if more accentuated than in other situations. This circumstance does not influence its qualification, [but rather] merely regards the possibility or probability of a fact's occurrence (risk).
(...)
We therefore affirm the challenged judgment, in which the appeals judge observed that, moreover, the injuries suffered by Cameretti were produced by criminal action of the robbers, expression of an autonomous illegal action by third parties, of itself capable and sufficient to cause the event during which the client's presence in the bank had functioned as a mere occasion, insufficient to act as an effective cause of the fact.
The appeal is therefore rejected (...)