Strict Liability

As already noted, the first four Articles (2043 - 2046) sections of Title IX on Unlawful Acts focus on torts based on fault and the defenses to these torts. The next several Articles - 2047 through 2054 - create a bundle of areas where liability is imposed regardless of fault, [1] - in what is called responsabilita' oggettiva in Italian - and through a mechanism of shifting the burden of proof to the defendant in an array of situations[2] through various formulas, effectuating a presumption of liability. [3] Once the plaintiff establishes the other elements of the case, the defendant will be held strictly liable unless he can exonerate himself according to the formula prescribed by the various provisions. The breadth of application of the resulting regime of strict liability is expanding due to the increase in types of injury covered as well as the nearly determinative force of the presumption as applied to factual contexts.
Under Article 2051 of the Italian Civil Code, everyone is liable for injuries caused by things in his custody. This rule creates a specific duty on the custodian, consisting not only in maintaining control over the thing but also in adopting sufficient measures so as to avoid that it causes damage to third parties; this means, as explained in the following case, that the custodian is held to adopt adequate precautions to avoid that the thing in custody does find itself in a situation in which it may cause damage to third parties, either because of a dynamic naturally connected to it or because of the development of a damaging aspect of it that arises due to intervening accidental circumstances. The custodian is not necessarily the owner of the thing, but anyone who retains physical power over the thing.
The next case, in which the owner of a garbage bin left in the middle of the road was held liable for the damage that it caused to a car that crashed into it, demonstrates how difficult it is for the defendant to overcome the presumption of liability created once the burden of proof shifts to him to demonstrate that the "injuries were of the result of a fortuitous event." In effect, Article 2051 creates two automatic mechanisms: first, it excludes any need to prove negligence - as the custodian liable for any damage the thing in custody causes, even "comprising also the action of a third party or the exclusive negligence of the damaged party," unless such actions rise to the level of a "fortuitous event"; second, it establishes a presumption of causation, posing a further, nearly impossible challenge to overcome, only rebuttable by proving the existence of the so-called "fortuitous event." In the judgment Court of Cassation, 14 January 1992, n. 347, Bernabei v. Palazzari, a fortuitous event is described as the intervention of an element endowed with autonomous causal impetus and with an unpredictable and unavoidable character. The "fortuitous event" concept is strictly related to causation, and effectively amounts to what common law jurists would call an intervening superseding cause, i.e., an unforeseeable event that interrupts the chain of causation thus exonerating the defendant. However, for the purposes of Article 2051, at least, the concept is linked to that of negligence, as this case shows, recognizing that contributory negligence can also constitute a fortuitous event but only if it interrupts the causal nexus, in an "unpredictable and unavoidable" way.
As in any strict liability regime, however, even if the plaintiff enjoys some substantive and procedural advantages, the defendant is of course exonerated if plaintiff cannot ultimately prove the causal link between the alleged action and injury. In addition, the plaintiff bears the burden of demonstrating that the case falls within one of the proscribed areas subject to strict liability.
Italian Article 2051 derives directly[4] from the broader Article 1384(1) French Civil Code[5] ; under this Article, a person is liable not only for the damages he causes by his own act, but also for that which is caused by the acts of persons for whom he is responsible, or by things which are in his custody. In the Jand'heur case, probably the most important French case concerning liability for things in custody[6] , the jointed chambers of the French Court of Cassation established that the regime of Article 1384(1) applied to all things, irrespective of whether they were moveable or immoveable, directed by a human being or autonomous, subject to defect or not or dangerous or not[7] . So the first condition is that the damage must be caused by any kind of corporeal thing. The second condition, laid down by the French Courts to avoid an exaggeratedly extensive use of the regime of Article 1384, is that the thing should not have played a purely passive role in the production of the harm. [8] This means that when the thing was not in motion the victim must prove that the thing "behaved" abnormally, was abnormally positioned (as it was in the previous Italian case) or suffered from an internal defect. [9] Under French law, the custodian, or gardien, is not necessarily the owner, as in Italian law, but whoever has the use, direction and control over thing, i.e., its physical disposition. [10] In a 1914 decision the French Court of Cassation held that a custodian could escape liability under Article 1384 only by proving that the damage was due to force majeure, to the fault of the victim or to the fault of a third party. [11] An event constitutes force majeure - which, for French courts is synonymous with cas fortuity, if it is external to the thing that caused the harm, unforeseeable and unavoidable in its consequences, not even exercising the proper standard of care. [12] The Italian "caso fortuito," or fortuitous event, found in Articles 2051 and 2052, and permeating the law of causation, is identical.
Article 2050 of the Italian Civil Code imposes liability for damage arising from exercise of dangerous activities. Such a general rule seems to be a peculiarity of the Italian Civil Code. [13] If damage is caused in the execution of a dangerous activity, the operator is deemed liable unless he can prove that he took all the precautions which may have avoided the harm.
A condition for the applicability of Article 2050 C.C. is the causal nexus between the carrying out of the dangerous activity and the injurious event, a nexus whose burden of proof lies with the damaged party.
In the case Court of Cassation, 11 December 1995, n. 12640, Agraria Morelli-Utilgas, S.r.l. v. Internal Affairs Administration, the defendant unsuccessfully attempts to avoid liability by claiming, inter alia, an interruption to the causal link through the intervention of firefighters, and by attributing the firefighters themselves with the carrying out of a dangerous activity, as provided under Article 2050 C.C.
Under German Law, there is no such rule imposing liability for damages arising from unspecified dangerous activities. Some activities, normally considered dangerous, may give rise to liability without fault (usually formulated as risk-based liability, and in three situations formulated as a presumption of causation) under different provisions, [14] but application by analogy is not possible, since German courts have always affirmed that the imposition of strict liability is a matter for the legislature and not for the judiciary, and liability without fault could only be imposed by the legislature. [15] Therefore, there is no risk-based liability under German law except in those cases where the legislature has expressly provided for it. [16] In 1943 and 1977 the Law of Liability regarding railways was extended to the effects of electricity, gases, vapors or liquids coming from an installation for their transmission or supply by cable pipe or otherwise. [17] Probably such a provision would not be applicable in a case like the one above because in that case the defendant's installation was used for the bottling and distribution of liquid gas in canisters, and not for transmission or supply.
Under French law, liability for damages caused by fire is imposed only on the basis of fault. [18] An Act of 7 Nov. 1922 provided an amendment to Article 1384 that established that a person who possesses all or part of a building or of movable property in which a fire has originated is not liable towards third parties for damages caused by that fire unless it is proved that the fire is attributed to his fault. [19]
Even though a provision regarding liability for damage arising from dangerous activities in general cannot be commonly found among other European civil codes, it is present in England through case law since the landmark holding in Ryland v. Fletcher, [20] where, despite the absence of their negligence, defendant landowners were held liable for damage for flooding damage to underground mines from a reservoir on their property. The House of Lords characterized the activity as "non-natural," as opposed to "any purpose that might in the ordinary course of the enjoyment of land be used." [21] The ruling turned on "the abnormal and inappropriate character of the defendant's reservoir in coal mining country, rather than the mere tendency of all water to escape." [22] Subsequent English case law has focused on determining what is a "non-natural use," and in doing so have examined not only the nature of the activity but also the place and manner in which it occurs. The rule of Rylands v. Fletcher was immediately received but then repudiated by U.S. courts, but is now again widely accepted in the vast majority of states. [23] The pattern of defining cases where strict liability applies has largely followed the English principles, recognizing liability without fault in the cases of:

water collected in a dangerous place, or allowed to percolate; explosives or inflammable liquids stored in quantity in the midst of a city: blasting; pile driving; crop during: the fumigation of part of a building with cyanide gas; drilling oil wells or operating refineries in thickly settled communities; an excavation letting in the sea; factories emitting smoke, dust or noxious gases in the midst of a town roofs so constructed as to shed snow into a highway; and a dangerous party wall. [24]
The Restatement (Second) of Tort set forth the framework for strict liability for abnormally dangerous activity in two provisions: the first providing liability for those who carry out such activity and thereby cause harm to persons or property even with the exercise of "the utmost care to prevent the harm," [25] the second listed six criteria by which to determine such activity.[26] The Restatement (Third) of Torts: Liability for Physical and Emotional Harm, streamlined the formula, using a single provision and limiting the determinative criteria to two. [27] The first parts of both the Restatements' configurations, which eliminate the need to prove negligence, are arguably stricter than those in Italy, where a person is liable unless he proves that he has taken all suitable measures to avoid the injury. The "strict" liability consists only of the inversion of the burden of proof. Another difference is that the Italian Civil Code is silent as to how to determine if an activity is abnormally dangerous; thus courts use a case-by-case approach, as we will see in two cases, one on banking, and the other one involving a competitive sporting event such as motocross racing.
In the first of them, the Court characterizes such activity as "one of those qualified as such under the law of Public Security and by other special norms, or an activity that has inherent dangerousness in the means used or by its own nature." As will be seen, these preliminary issues regarding the qualification of the activity as dangerous appear to give the defendant some likelihood of defeating claims brought under Article 2050, and emphasize the tendency toward a "typical" quality in the Italian "strict liability" provisions. In such case, Court of Cassation, Third Civil Division, 11 March 1991, n. 2555, Cameretti v. Banco di Napoli, the plaintiff, a man who was shot during a bank robbery, unsuccessfully claimed that the bank was liable under Article 2050, alleging that banking was a dangerous activity.
Even if an activity is categorized as "dangerous" under Article 2050, certain activities, such as competitive sports, may be subject to assumption of the risk as a defense. This principle is present in U.S. law as well, under the Restatement (Second), §523 Assumption of Risk, which reads: "The plaintiff's assumption of the risk of harm from an abnormally dangerous activity bars his recovery for the harm." Contributory negligence, instead, was "not a defense to the strict liability of one who carries on an abnormally dangerous activity" [28] unless the plaintiff "knowingly and unreasonably subjecting himself to the risk of harm from the activity." [29]
In the Restatement Third, "no separate defense of assumption of risk is recognized," [30] but §25 on Comparative Responsibility provides, "If the plaintiff has been contributorily negligent in failing to take reasonable precautions, the plaintiff's recovery in a strict-liability claim under §§20-23 for physical or emotional harm is reduced in accordance with the share of comparative responsibility assigned to the plaintiff." The comments to §25 explain that the Restatement Second, "while generally rejecting contributory negligence as an affirmative defense, singled out one form of contributory negligence as a complete defense." [31] Like the synthesizing effect the Restatement Third used in the provisions on strict liability, described above, here, again the text and the concepts it contains are condensed, providing "that all forms of contributory negligence are subject to the comparative-responsibility process." [32]
In another judgment, Court of Cassation,Third Civil Division, 20 February 1997, n. 1564, Toffaldano Pietro v. Motoclub Gubbio, Pannacci Ardicino, Piccotti Walter, the Court stressed how the damage that the competitors may suffer arising from a sports competition enters within the normal risk for such activities and thus it falls upon them; for the organizers to exonerate themselves from liability, they need only arrange things so as to contain the risk within the normal limits for that sport. Here, a sidecar driver unsuccessfully sought damages for an accident that occurred during a race. The Court rejected the appeal arguing that these types of accidents lay within the normal risk for such races.
The last case, Court of Cassation, Third Civil Division, 30 March 2001, n. 4742, Rocca v. Azienda ospedaliera Santa Croce & Carle, deals with the strict liability that emerges from Article 2052, [33] regarding damages arising from harm caused by animals. Unlike the case Zattini v. Leoni, where defendant's dog allegedly bit the victim, this decision examines circumstances under which a third party was "using" the animal, in this case, a horse.
The principles enunciated in this case mirror those of the other strict (or objective) liability provisions of the Code, by inverting the burden of proof and by eliminating the need for the claimant to prove the defendant's negligence. In fact, the defendant owner/user can escape liability only by proving that a "fortuitous event" interrupted the causal nexus, not by merely demonstrating that he used due care, which is irrelevant in these cases. Other jurisdictions have addressed damage done by animals in their legislation, e.g., France (as noted supra), [34] Austria[35] and Switzerland. [36] While the French code is almost identical to the Italian code regarding owners' and users' liability, the former does not explicitly provide for the defense of the fortuitous event, though this is the implicit rule. [37]
The Austrian and Swiss codes also both provide for the presumption that shifts the burden of proof: however, both share at least two distinctions from the Italian code: first, neither provides for "user's" liability as an alternative for owner's liability, but rather, both provide the term "keeper," [38] Thus, in the Rocca v. Azienda ospedaliera case, e.g., Rocca's defense vis-a'-vis the victim's use of the horse while injured would not have been available, because the user's liability is not expressly stated in the Austrian and Swiss clauses. Moreover, both Austrian and Swiss law explicitly deem liable anyone - presumably a victim or a third party - who has taunted or incited the animal to cause the injury. In expressly attributing liability to this circumstance, the Austrian and Swiss legislatures have reduced any doubt that might arise under the less explicit Italian configuration regarding whether such incitement might be considered a "fortuitous event." However, any gains made in clarity by specifying liability for taunting the animal might be negated by the more specific provision both codes contain presuming fault unless precautions to provide for the animal's proper custody and supervision were taken. In other words, the keeper must apparently still find himself needing to prove that he took proper precautions against someone inciting the animal to escape liability.
The German Code[39] is similar to the Austrian and Swiss provisions in using the term "keeper" and imposing strict liability. However, it is slightly different on other fronts, providing that the keeper of a domestic animal that is useful for work purposes can exculpate himself by showing he used due care in the case of harm caused by this animal. However the keeper of a "luxury" animal, i.e., one not "intended to serve the occupation, economic activity or subsistence of the keeper of the animal" cannot free himself from liability by showing he exercised due care. [40]
Despite the benefits a claimant finds in proving liability under these strict liability statutes, as the decisions point out, several elements are still left to the moving party to demonstrate, including the all-important causal nexus, connecting the damaging event to the victim's injury.

[1]The distinction between the liability imposed by, e.g. in Article 2051 for "things in custody," and that imposed by Article 2043 for a defendant's intentional or negligent actions is highlighted in Court of Cassation, Third Civil Division, 19 February 2008, n. 4279 (6693) "The doctrine speaks (...) of the "risk" of custody, more than the "negligence" in custody or, following the position taken in French jurisprudence of the "presumption of liability" and not of "presumption of fault." It follows that (...) it is irrelevant whether the defendant was aware [that the thing in custody] was being used anomalously (...)"

[2]Thus introducing an element of %u201Ctypicality%u201D into the Italian tort provisions, which shows some influence from the German style of legislation, which delineates each type of case in which liability lies, suggesting their exclusivity.

[3]Article 2047. Injury caused by person lacking capacity: If an injury is caused by a person incapable of understanding or intending, compensation is due from those who were charged with the custody of such person, unless they prove that the act could not have been prevented.
If the person injured is unable to secure compensation from the person charged with the custody of the person lacking capacity, the court, considering the financial conditions of the parties, can order the person who caused the injury to pay an equitable compensation.
Article 2048. Liability of parents, guardians, teachers, and masters of apprentices: The father and mother, or the guardian, are liable for the damage occasioned by the unlawful act of their minor emancipated children, or of persons subject to their guardianship who reside with them. The same provision applies to a parent by affiliation.
Teachers and others who teach an art, trade or profession are liable for the damage occasioned by the unlawful act of their pupils or apprentices while they are under their supervision. The persons mentioned in the preceding paragraphs are only relieved of liability if they prove that they were unable to prevent the act.
Article 2049. Liability of masters and employers: Masters and employers are liable for the damage caused by an unlawful act of their servants and employees in the exercise of the functions to which they are assigned.
Article 2050. Liability arising from exercise of dangerous activities: Whoever causes injury to another in the performance of an activity dangerous by its nature or by reason of the instrumentalities employed, is liable for damages, unless he proves that he has taken all suitable measures to avoid the injury.
Article 2051. Damage caused by things in custody: Everyone is liable for injuries caused by things in his custody, unless he proves that the injuries were the result of a fortuitous event.
Article 2052. Damage caused by animals: The owner of an animal, or one who makes use of it, for the period of such use, is liable for damage caused by the animal, regardless of whether the animal was in his custody or strayed or escaped, unless he proves that the damage was the result of a fortuitous event.
Article 2053. Collapse of buildings: The owner of a building or other construction is liable for the damage caused by their collapse, unless he or she proves that the latter is not the result of lack of maintenance or construction defects.
Article 2054. Circulation of vehicles: The driver of a vehicle that is not guided by rails is liable for the damage caused to persons or to property by operation of the vehicle unless he proves that he did all that was possible to avoid the damage.
In the case of collision of vehicles, it is presumed, until proof to the contrary is offered, that each driver contributed equally toward causing the damage suffered by each vehicle.
The owner of the vehicle, or in his place the usufructuary or purchaser with reservation of ownership, is liable jointly and severally with the operator of the vehicle, unless he proves that the vehicle was being operated against his will.
In any case, the persons indicated in the preceding paragraphs are liable for damage arising from defects in the manufacture or maintenance of the vehicle.

[4]K. Zweigert & H. Kotz, An Introduction to Comparative Law, trans. T. Weir, 3rd ed. (Oxford: Clarendon Press 1998), 666.

[5]Art. 1384(1) French Civil Code: A person is liable not only for the damages he causes by his own act, but also for that which is caused by the acts of persons for whom he is responsible, or by things which are in his custody.

[6]van Gerven et al., Tort law. Common Law of Europe Casebooks, 557-558.

[7]Cass. Ch. Re'un., 13 Feb. 1930, Jand%u2019heur v. Les galeries belfortaises, DP 1930.I.57, S 1930.I.121

[8]Zweigert & Kotz, An Introduction to Comparative Law, 662.

[9]Cass. Civ. 2e, 19 March 1980, SA Shell Française v. SA L'Union maritime de Dragage, Bull. Civ. 1980.II.65, and Cass. Civ. 2e, 8 July 1992, Tallut v. Socie%u2019te%u2019 Adam, Bull Civ. 1992.II.65.

[10]See Cass. Ch. Re%u2019un., 2 December 1941, Connot v. Franck, DC 1942.25, S 1941.I.217, where the court held that the custodian of a stolen car was the thief and not the owner.

[11]Cass. Civ., Req. 19 Jan. 1914, S 1914. I. 128.

[12]Zweigert & Kotz, An Introduction to Comparative Law, 664.

[13]Zweigert & Kotz, An Introduction to Comparative Law, 666.

[14]van Gerven et al. Tort law. Common Law of Europe Casebooks, 543-551.

[15]Zweigert & Kotz, An Introduction to Comparative Law, 656-657.

[16]BGH, 15 October 1970, BGHZ 54, 332.

[17]Zweigert & Kotz, An Introduction to Comparative Law, 654.

[18]Ibid. 662.

[19]Art. 1384(2) French Civil Code: However, a person who possesses, regardless of the basis thereof, all or part of a building or of movable property in which a fire has originated is not liable towards third parties for damages caused by that fire unless it is proved that the fire must be attributed to his fault or to the fault of persons for whom he is responsible.

[20] [1868] L.R. 3 H.L. 330.

[21]Ibid. 338.

[22]Prosser, Handbook of Law of Torts, 506.

[23]Ibid. 509.

[24]Ibid. 510. (Citations omitted.) Activities where courts have refused to apply the rule include "water in household pipes, the tank of a humidity system, or authorized utility mains; gas in a meter, electric wiring in a machine shop, and gasoline in a filling station; a dam in the natural bed or a stream; ordinary steam boilers; an ordinary fire in a factory; an automobile; Bermuda grass on a railroad right of way; a small quantity of dynamite kept for sale in a Texas hardware store; barnyard spray in a farmhouse; a division fence; the wall of a house left standing after a fire; coal mining operations regarded as usual and normal; vibrations from ordinary building construction; earth moving operations in a grading a hillside; the construction of a railroad tunnel and even a runaway horse. Ibid. 510-511. (Citations omitted.)

[25]Restatement (Second) of Torts, (1977). §519 General Principle:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

[26]Restatement (Second) of Torts, (1977). §520 Abnormally Dangerous Activities:

In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.

[27]Restatement (Third) of Torts: Liability for Physical and Emotional Harm, (2010). §20 Abnormally Dangerous Activities:

(a) An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity.
(b) An activity is abnormally dangerous if:
(1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
(2) the activity is not one of common usage.
For a thorough analysis of the differences between the two Restatements regarding traditional strict liability , see K. W. Simons, "The Restatement (Third) of Torts and Traditional Strict Liability Robust Rationales, Slender Doctrines,"1356 Wake Forest Law Review 44 (2006) 355.

[28]Restatement Second of Torts §524 (1) Contributory Negligence.

[29]Restatement Second of Torts §524 (2) Contributory Negligence. Comment b to this section addresses the close kinship between contributory negligence and assumption of risk: "This kind of contributory negligence, which consists of voluntarily and unreasonably encountering a known risk, frequently is called either contributory negligence or assumption of risk, or both."

[30]Comment e to Restatement Third of Torts, §25, Comparative Responsibility.


[32]Ibid. This comment also discusses the validity of "contractual disclaimers of liability" for "strict liability for harms caused by animals and by abnormally dangerous activities," explaining that "[g]iven the scarcity of cases, the issue is left open in this Restatement.

[33]Article 2052, Damage caused by animals: The owner of an animal, or one who makes use of it, for the period of such use is liable for damage caused by the animal regardless of whether the animal was in his custody or strayed or escaped unless he proves that the damage was the result of a fortuitous event.

[34]Article 1385 French Civil Code provides "The owner of an animal, or the person using it, during the period of usage, is liable for the damage the animal has caused, whether the animal was under his custody, or whether it had strayed or escaped."

[35]See Austrian Civil Code, ABGB §1320, which reads "If someone is injured by an animal, the party liable therefor is whoever has incited or irritated the animal or whoever has neglected to keep it well guarded. The keeper of the animal is liable unless he proves that he took precautions to provide for the animal%u2019s proper custody and supervision."

[36]Swiss Civil Code (Bundesgesetz betreffend die Ergänzung des Schweizerischen Zivilgesetzbuches (Fünfter Teil: Obligationenrecht), Article 56: For damage caused by an animal the person liable is liable the keeper of the animal, unless he proves that he used all due care in the custody and supervision as required by the circumstances or that the damage would have occurred even using this due care. The keeper has the right to recourse against one who provoked, or one whose animal provoked, the animal who caused the damage.

[37]See infra, regarding the French code governing causation, Article 1384.

[38]In German law, see infra, which uses the same term (keeper), this figure is defined as the person who has the power to decide over the animal, who is making use of the general value and usability of the animal and is paying the animal's expenses in his own interest, which usually is the same as the owner but can be another person who fits these characteristics. A keeper of an animal is therefore - regardless of formal legal relations - is the person actually responsible for the animal's fate. The ownership relations can be an important indication for being keeper of an animal when an animal is given to someone else (in case of a horse, e.g., being kept at a riding-stable). As long as the animal%u2019s owner pays for the animal and bears the risk to lose it, he remains the "keeper" of the animal.

[39]Section 833 BGB, Liability of animal keeper: If a human being is killed by an animal or if the body or the health of a human being is injured by an animal or a thing is damaged by an animal, then the person who keeps the animal is liable to compensate the injured person for the damage arising from this. Liability in damages does not apply if the damage is caused by a domestic animal intended to serve the occupation, economic activity or subsistence of the keeper of the animal and either the keeper of the animal in supervising the animal has exercised reasonable care or the damage would also have occurred even if this care had been exercised.

[40]Zweigert & Kotz, An Introduction to Comparative Law, 651.

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