Fault
Article 2043, together with Articles 2044-2046 form the basis of tort liability based on fault, the latter three provisions setting forth defenses to it. Article 2044 deals with self-defense, [1] 2045 the state of necessity, [2]and 2046 incapacity. [3]3
While the core provision, Article 2043, sets out the basic elements of tort based on fault, its terms require some interpretation. Foremost among these is the question of the mental elements necessary to create liability, which can be either "doloso" or "colposo," i.e., broadly corollary to the common law...s concepts of intentional and unintentional torts. Generally speaking, for purposes of imputing tort liability, the simple disjunction "or" demonstrates the functional equivalence of dolo and colpa. However, certain torts do require a showing of the former, dolo, or intent. [4] Intent is not defined in the civil code but rather dealt with in the Italian Penal Code (as is negligence, as we shall see below). In fact, Article 42, Penal Code reads:
Liability for Intent or negligence or preterintentional Crime. Objective Liability.And Article 43, Penal Code, reads:
No one may be punished for an act or omission designated by law as an offense if he has not committed it knowingly and willfully.
No one may be punished for an act designated by law as a crime if he has not committed it intentionally, except in cases of preterintentional or negligent crimes expressly designated by law. (...)
Mental Element of the Offenses:
A crime:
Shall be intentional, i.e., according to intention, when the harmful or dangerous event which is the result of the act or omission, and on which the law makes the existence of the crime depend, is foreseen and desired by the actor as a consequence of his own act or omission;
Shall be preterintentional, i.e., in excess of intention, when the act or omission is followed by a harmful or dangerous event more serious than that desired by the actor;
Shall be negligent, i.e., contrary to intention, when the event, even though foreseen, is not desired by the actor and occurs because of carelessness, imprudence, lack of skill or failure to observe laws, regulations orders or regulations. (...)
Intent
Relatively little is written specifically about dolo, or intent, in Italian tort law, compared to what is written about negligence. One author opines:... intent is reserved a marginal position. ... Perhaps for its lesser frequency in the jurisprudence, perhaps because it is less fascinating intellectually than negligence, perhaps because it is less problematic than negligence, intent receives scarce attention, compared to other criteria of imputation, even in the treatment on this theme in foreign literature; this notwithstanding the fact that the comparison allows aspects of notable interest to arise. [5]
Negligence
While Article 2043 speaks of unlawful acts," civil code, but rather is found, again, in Article 43, paragraph 3 of the Penal Code, which is resorted to - by analogy to civil wrongs - for the meaning of negligence. As noted above, under this provision, a crime is "negligent, i.e., contrary to intentional, when the event, even though foreseen, is not desired by the actor and occurs because of carelessness, imprudence, or lack of skill, or failure to observe laws, regulations, orders or instructions."This broad definition encompasses both what common-law jurists would consider the "reasonable-man" standard as well as the concept of "negligence per se." The former consists of the "standard of conduct ... ordinarily measured by what the reasonable man of ordinary prudence would do in the circumstances." [6] This personification of reasonableness in the formula of the "reasonable man" in the common law in turn finds its counterpart in the Italian code in the figure of the "good father of a family," recurring frequently in the Italian codes and jurisprudence to establish the standard of diligence required in situations ranging from the general duty to fulfill obligations both in tort and in contract. [7]Its application is fairly straightforward, similar to the reasonable-person standard mentioned above in common-law case law. However, it is subject to specialized exceptions in several fields, as will be seen below, where, e.g., certain provisions of the Civil Code operate to create a sort of strict liability - or responsabilità oggettiva - through the action of a presumption.
Another area has been carved out by the courts, that of medical malpractice, in which a similar presumption operates. Exposure to civil liability for health professionals has grown recently in Italy, as it has in other jurisdictions, notably the United States. [8] "The difficult balancing of interests applied by the jurisprudence in the arch of this century between physicians and patients has generated over time an array of rules so broad and specific that it leads some to believe that medical malpractice liability now constitutes a true and independent sub-system of civil liability." [9] Based on a fairly recent pronouncement by the Court of Cassation, [10]negligence can be presumed in this field in certain circumstances:
Regarding civil liability for medical-surgical activity, once the causal nexus between the damaging event and the health care performance has been ascertained, as long as the claimant relies upon a contractual responsibility by the performer of the intellectual work and/or the entity contractually responsible for the performance, when the surgical operation undergone from which the damage is derived is not of difficult execution, the aggravation of the pathological situation of the patient or the insurgence of new pathologies causally linked to it bring about, under article 1218 Civil Code, [11] a rebuttable presumption regarding the inadequate or negligent performance, shifting the burden to the defendant - be it the health professional or the entity - to provide proof that the professional performance was carried out appropriately and that those worsening outcomes were brought about by an unforeseen and unforeseeable event, possibly because of a particular physical condition of the patient, not ascertainable and unavoidable with ordinary professional care. Regarding liability for damages, the surgeon, in performing the contractual obligations inherent to his/her own professional activity, is held to a standard of care that is not only that of a good father of a family under Article 1176, paragraph 1, C.C., but it is, rather, that specific to the qualified debtor, as provided under Article 1176 C.C. paragraph 2, C.C., which requires the respect of all the rules and the precautions that, taken together, constitute the knowledge of the medical profession, including the duty to supervise the health of the subject who has undergone surgery in the post-operative phase. The case limits the presumption...s applicability to those procedures that are of "easy or routine execution," where difficult - or non-routine - procedures are defined as those that require an ability exceeding the average medical preparation or those that have not been sufficiently studied by medical science or have not yet been adequately tested in practice. [12]
The origin of this trend to increase patients... protection against tort injuries arising in the medical field, shared by the various continental European legal regimes, reflects an increased attention in general to provide guarantees regarding the rights of the patient. [13]
In the various European courts... jurisprudence, the same objective of defending patients... rights, in the absence of specific rules of substantive law, is instead carried out through the adoption of a regime regarding proof favoring the patient. The means used in the various procedures applied in the systems on continental Europe diverge regarding the practical techniques applied but not in the objective pursued, which is always to avoid that the risk of probative uncertainty be born specifically by those in the situation with more difficult "control" of the necessary data (in terms of scientific knowledge) to acquire proof and with lesser ease of "access" to health documentation. [14]In common law traditions, a standard of care that is higher than that of the "reasonable man" applies to doctors: "namely the 'reasonable doctor,... and it is the same in both diagnosis and treatment." [15] In the United States, a physician rendering medical services "will ordinarily be understood to hold himself out as having standard professional skill and knowledge ... and he will be liable if harm results because he does not have them." [16] This higher, professional standard traverses negligence law, applying to a range of individuals who render services based on specialized skills, including pharmacists, accountants, attorneys, architects, engineers and many other professions and even skilled tradesmen, usually requiring expert testimony by peers from the same field. [17]These rules establish a higher standard of care than that applied to lay persons in common law systems, similar to those in Italy...s Civil Code Article 1176, paragraph 2, as stated in the above-cited decision of the Court Cassation of 11 March 2002, n. 3492. Moreover, in common law countries, the frequent resort to the doctrine of res ipsa loquitur to establish negligence in cases such as the case in question - where gauze was left inside a patient...s interior during an operation, leading to complications - has an effect like that of the presumption established under Italian law, but the latter seems even more stringent. Res ipsa loquitor does not apply in every medical intervention of "easy application" across the board in US law. The operation of the rule established in this case reverses the posture regarding the burden of proof in all medical malpractice cases. Under its provisions, the plaintiff need only prove that the service provided was of easy execution and demonstrate the causal link between the service and the worsening health conditions to establish liability.
Outside the complex field of medical liability, of which we have only touched upon briefly regarding a specific matter, negligence is established following the normal procedural stance vis-à-vis the burden of proof.
Objective negligence
Returning to the broad topic of fault, and specifically to the latter concept contained in the definition of negligence under Penal Code Article 43, we can observe that this provision correlates to the common law expression "negligence per se," imposed whenever an unjustified violation of a statutory duty results in injury. Even "the absence of any expressed intention to provide a remedy in damages has not prevented the courts from treating non-compliance with the statutory rule as the basis for civil recovery" in common law countries. [18]Combining the two concepts, the dominating Italian doctrine adopts an objective test of negligence, consisting in the "inobservance of the required diligence according to adequate social or professional parameters of conduct." [19]This objective test has generally overridden the subjective test that would require a judge to find the defendant...s state of mind one with the ethical and moral overtones associated with fault. It is enough that the defendant, "without wanting to injure others, is the cause of an injurious event through negligence, imprudence or inexperience, or for the non-observance of rules or norms of conduct." [20] The case Court of Cassation, 10 November 1970, n. 2337 exemplifies the finding of "objective negligence" through the violation of a statutory norm, while touching upon issues of causation, which is examined there.[1]Article 2044. Self-defense: A person who causes injury in the exercise of self-defense or the legitimate defense of another is not liable for the injury.
[2]Article 2045. State of necessity: If a person who commits an act which causes injury was compelled by the necessity of saving himself or others from a present danger of serious personal injury, and the danger was neither voluntarily caused by him nor otherwise avoidable, the person injured is entitled to compensation in an amount equitably established by the court.
[3]Article 2046. Person not chargeable with injury: A person who was incapable of understanding or intending at the time he committed the act causing injury is not liable for its consequences, unless the state of capacity was caused by his own fault.
[4]G. Alpa & U. Ruffolo "Il dolo," in Casi e questioni di diritto private, IX - atto illecito e responsabilità civile, 1. I criteri di imputazione della responsabilità civile, ed. G. Alpa, U. Ruffolo, V. Zeno-Zencovich, (Milan: Giuffrè Editore, 2000), 29. "There are cases in which the animus conocendi takes on importance: seduction, inducement to breach, and also little known cases, such as delict for mistaken information, dumping, (...) boycotting, refusal to deal, the leading away of clientele." Ibid. 30.
[5]Alpa et al., La responsabilità civile, 250.
[6]Fleming, The Law of Torts, 117.
[7]Article 1176. Diligence in performance: In performing obligations the debtor shall use the diligence of a good father of a family.
In performing obligations inherent to the exercise of a professional activity the diligence shall be evaluated in consideration of the nature of the activity carried out.
This provision therefore extends to a vast range of situations, as ubiquitous as those where common law...s Reasonable Man appears, including the degree of care to exercise over things entrusted in one...s custody, in Article 1177; a real estate renter...s obligation toward the property rented, in Article 1587; in various contractual relations, e.g., generally under Article 1710, including that of shippers, under Article 1739 and that of other agents, under Article 1746; an insured...s duty to minimize damage, under Article 1914; the duty owed by those who take over the management of the business of another, under Article 2028; that owed by employers, under article 2104; and that of a tenant farmer under Article 2167.
[8] "That medical malpractice law in the United States is in a state of near-crisis few would dispute." S. Deakin, A. Johnston & B. Markesinis, Markesinis and Deakin...s Tort Law, 5th ed. (Oxford: Clarendon Press, 2003), 324.
[9]S. Winkler, "La responsabilità medica," in Lex Aquilia, ed. G. Pascuzzi, 16 (Bologna: Zanichelli, 2005), 4.
[10]Decision of 11 March 2002, n. 3492.
[11]Article 1218. Liability of debtor: The debtor who does not exactly render due performance is liable for damages unless he proves that the non-performance or delay was due to impossibility of performance for a cause not imputable to him.
[12]G. Pascuzzi, "Malpractice: La colpa del medico è presunta se l...intervento è di "facile esecuzione" in Lex Aquilia, ed. G. Pascuzzi, 16 (Bologna: Zanichelli, 2005), 1.
[13]R. De Matteis, "La responsabilità ad una svolta?" Case comment on Court of Cassation, Third Civil Division 21 June 2004, n. 11488; Court of Cassation, Third Civil Division, 28 May 2004, n. 10297 and Court of Cassation, Third Civil Division, 19 May 2004, n. 9471, in Danno e responsabilità, 1, (2005), 35.
[14]Ibid. 36.
[15]Whitehouse v. Jordan [1981] 1 WLR 246 (HL) (treatment) and Maynard v. West Midland Regional Health Authority [1984] 1 WLR 634 (HL) (diagnosis). Cited in Deakin, Johnston & Markesinis, Markesinis and Deakin...s Tort Law, 315.
[16]W.L. Prosser, Handbook of Law of Torts, 4th ed., (St. Paul, Minn.: West Publishing Co. 1971), 162.
[17]Ibid.161-62, 226-27.
[18]Fleming, The Law of Torts, 131.
[19]V. Massimo & C. Bianca, Diritto civile, La responsabilità, (Milan: Giuffrè Editore, 1995), 575.
[20]Tibiletti v. Soc. Assoc. Gen., Court of Cassation, 29 October 1970, n. 2260.