Product Liability 2009 - Arnold & Porter LLP

Chapter 26
Italy
Lovells LLP
1 Liability Systems
1.1 What systems of product liability are available (i.e. liability
in respect of damage to persons or property resulting from
the supply of products found to be defective or faulty)? Is
liability fault based, or strict, or both? Does contractual
liability play any role? Can liability be imposed for breach
of statutory obligations e.g. consumer fraud statutes?
In Italy product liability was traditionally based on the general
principle of tort law under section 2043 of Italian Civil Code (“CC”),
providing that any person who by wilful or negligent conduct causes
unfair detriment to another must compensate the victim for any
resulting damages suffered (the neminem laedere principle). Such
negligence liability encompasses both the general lack of prudence or
diligence and the violation of “Statutes, Regulations, Orders or Rules”.
It coexists with the strict liability system of the Italian Consumer
Code, implementing the Product Liability Directive 85/374/EC (the
“PL Directive”). Other available product liability systems include, to
a limited extent, contractual liability (section 1490 CC) and liability
for dangerous activities (section 2050 CC).
Traditional approach (fault based tort liability)
Under the traditional, fault-based tort liability approach (section
2043 CC), consumers may sue in tort manufacturers for damage
caused by defective products. Although negligence is to be
considered a necessary element in order to establish liability, some
Court decisions found that the defective nature of a product per se
would prove negligence in the manufacturing process. Thus the
manufacturer’s fault can be proved by the very existence of the
defect generating the injury.
Consumer Code, former DPR 224/88 (strict liability)
The Consumer Code introduces a strict product liability regime. It
provides detailed definitions of “product”, “defective product”,
“manufacturer” and “supplier”, and defines the scope of
manufacturers’ and suppliers’ liability. It explicitly states that the
injured party must prove the damage, the defect and causation.
Proving the manufacturer’s fault is not required. Lately, recourse
by plaintiffs to this cause of action has become increasingly
frequent (see answer to question 8.1 below). Because the
Consumer Code allows consumers to seek (alternatively or
cumulatively) other forms of protection provided by law, a product
liability case will mostly be brought based on claims under both the
Consumer Code and section 2043 CC.
Liability in contract
The law of contract plays a limited role in product liability
litigation. The rules governing the sale of goods limit liability to
any contractual duties of the seller in cases where the manufacturer
ICLG TO: PRODUCT LIABILITY 2009
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Francesca Rolla
Christian Di Mauro
or distributor has a direct contractual relationship with the ultimate
consumer (which very seldom occurs in relation to mass produced
goods). In any such case, the purchaser may claim the seller’s
liability whenever a latent defect manifests itself following the sale
(section 1490 CC).
Dangerous activities (presumption of fault)
Under section 2050 CC, whoever injures another in carrying out an
activity which is dangerous per se or due to the means used is (strictly)
liable for damages unless he proves that he adopted all possible
measures to avoid occurrence of the damage. Some court decisions
have applied this provision to the marketing and distribution of toxic
chemical substances and blood derivatives contaminated with
hepatitis-B and C and HIV viruses. Section 2050 has also been
applied in tobacco litigation on grounds that cigarette components are
inherently dangerous to health. Recent case law, however, has
excluded the applicability of section 2050 to tobacco products arguing
that the provision applies to “activities” and not to “products”.
Theoretically, section 2050 can only apply to activities that are
either “hazardous” by express provisions of law, or considered
inherently dangerous and likely to cause damage to the user even if
appropriately handled.
1.2 Does the state operate any schemes of compensation for
particular products?
Yes. State-operated indemnity schemes are promoted in connection
with contaminated blood transfusions and blood derivatives, and in
favour of victims suffering injuries or illnesses causing permanent
impairment of psycho-physical integrity as a result of undergoing a
mandatory vaccination. The indemnity also covers people who
suffer damage by interacting with vaccinated persons, people who
are subject to vaccination for work or travel reasons, and healthcare
personnel who are considered “at risk” and are therefore subject to
(not mandatory) vaccines. The indemnity offers limited restoration
and does not prevent victims from separately seeking damages
under the product liability provisions of the Consumer Code, or
under sections 2043 or 2050 CC.
In other areas of the law, ad hoc state funding may be available where
product liability issues arise in the context of natural catastrophes; in
connection with operating nuclear plants and in circumstances where
damages are caused to individuals by space objects.
1.3 Who bears responsibility for the fault/defect? The
manufacturer, the importer, the distributor, the “retail”
supplier or all of these?
Under the Consumer Code, “manufacturers” are liable for the
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