Sentence of Cassation n.23277/10: unexpected decision over damages caused by (poorly or non) – maintained public highways
‹‹About liability for damages caused by assets owned by Public Administration. The Court of Cassation holds that, should the enforcement of the law in the sense of Article 2051¹ of the Civil Code not be realizable since bailment is irrefutably not possible, due to large extension of the asset and enjoyment of the asset by third parties, the Public Administration should pay damages to the injured party, pursuant to Article 2043² of the Italian Civil Code. This Article does not reduce the Public Administration’s responsibility for wrongful conduct in cases of imperfections or defects.
It follows that according to the principles adopted in case of aquilian tort*, the injured party must prove at their expense the anomaly of the asset. Such proof is in theory sufficient to give evidence of the wrongful conduct of the Public Administration, which has to prove from its side the existence of hindrances in the accomplishment of its duty, such as:
$1• the injured party could have reasonably been expected to foresee such an anomaly;
$1• the impossibility of removing danger, after adopting all safety precautions (compare Cass. 6 July 2006, n.15383).
Besides, this interpretation was confirmed by the Constitutional Court after examining the conformity with Articles 3, 24 and 97 of the Constitution and Articles 2051, 2043 and 1227 of the Civil Code. It stated that the interpretation was not open to doubt. Doubts may have arisen in the legitimacy law environments, but do not exist according to the principles stated in the Italian Constitution (see Constitutional Court N.156, 1999). 2.1 It is also generally accepted that in case of tort liability of Public Administration for damages against the injured party, caused by conditions of poor maintenance of highways, the evaluation on the presence of a defect that could neither be objectively seen nor have been subjectively foreseen, is a matter of fact, irreproachable from a liability point of view if suitably and logically explained (see Cass.civ., n.15224, 19/07/2005).
3. Dealing now with the specific case, this court claims with jurisdiction that the instability of the pothole was a hidden and non foreseeable danger, since there was not any warning sign of work in progress nor any safety fencing around the area. By this statement, this court remarks the inconsistency of the argumentations of the opposing party, who sought to place the blame on the injured party, even though according to common sense and since no warning sign was present, pedestrians could walk indifferently on one side of the road or on the other.
This means that this court reasonably and logically decided that given an exhaustive and valid explanation, the general principle stated in Article 2043 of the Civil Code is legitimately applicable.
That is enough to explain the final decision of this Court››.
¹ Article 2051: damage caused by assets held in custody. Everyone is responsible for damages caused by objects in that person’s custody, unless they prove such damages were caused by accident.
² Article 2043: compensation for wrongful conduct. For any fraudulent or unlawful act, causing damage to third parties, the responsible party must cover for such damage.
* The aquilian responsibility refers to responsibility for compensation in case of violation of the discipline imposing to each person not to damage other parties.