Product Liability 2009 - Arnold & Porter LLP

Italy
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Lovells LLP Italy
fault/defect. A “manufacturer” is any manufacturer of goods or
supplier of services, or an agent thereof, or any importer of goods or
services within the European Union or any other natural or legal
person presenting himself as the manufacturer by identifying the
goods or services with his own name, trademark or other sign having
a distinctive character. Anybody dealing with the sale, lease, hire or
any other form of marketing of the product is considered a
“manufacturer” as long as it has dealt with transferring the product
from the manufacturer to the consumer, including persons in charge of
delivering the product for mere advertising purposes.
Product liability also attaches to importers of products coming from
outside the European Union (although the importer will be entitled to
sue the manufacturer by filing an action for contribution).
As consumers may not be aware of the distinction between a
“trademark” and a “brand or merchandise mark”, liability is not
limited to the manufacturer of the defective product, but is extended to
the person or entity who markets the product. If the name of the
manufacturer is known to consumers, the former shall be liable to the
latter.
When the manufacturer of defective products is not identified, a
supplier having distributed the products in the course of his business
is equally liable and is de facto considered a manufacturer if it fails to
provide the consumer with the name and address of the manufacturer
(or of the supplier who sold the products to him) within three months
from receipt of a written request by the consumer. This way, the
supplier has only a subsidiary liability, which can be avoided by
informing the consumer of the identity of the person or entity that
manufactured the product or sold the product to him. The ECJ has
ruled that, in principle, liability for defective products as regulated by
the PL Directive lies with the manufacturer, and will rest on the
importer and distributor of the product only in limited cases (i.e. when
the manufacturer is not identified).
1.4 In what circumstances is there an obligation to recall
products, and in what way may a claim for failure to recall
be brought?
A manufacturer’s or distributor’s duty to inform the competent
authorities is triggered whenever it becomes aware (or should be
aware, based on the information available in its position as a
business entrepreneur) that a product placed on the market or
otherwise supplied to consumers presents risks that are
incompatible with the manufacturer’s/distributor’s general duty of
ensuring product safety.
The new legislation imposes a number of additional duties on
manufacturers and distributors, including that of providing consumers
with all the information necessary to evaluate the risks arising from the
normal and foreseeable use of the product, adopting measures
proportional to the characteristics of the product, so as to enable the
consumer to identify the risks and to take any necessary steps to avoid
them. Product recalls are regulated in greater detail, and
manufacturers and distributors are required to organise direct
withdrawal of defective products from the market and, if the case may
be, destruction thereof, and to bear all relevant costs.
1.5 Do criminal sanctions apply to the supply of defective
products?
Yes. The Consumer Code provides that the competent authorities
(i.e. the relevant Ministry according to the product or service in
issue) can ban the marketing of dangerous products and take any
necessary measure to ensure compliance with such ban.
Manufacturers or distributors placing dangerous products on the
market in violation of the ban are criminally liable with
imprisonment (from six months to one year) and a €10,000-50,000
fine (if it involves the perpetration of a more serious crime, the
relevant criminal provisions will also apply). In the absence of the
ban, placing dangerous products on the market is punishable with
up to one year imprisonment and the same fine as indicated above.
For products presenting risks under certain conditions, authorities
may require that products be marked with suitable, clearly worded
and easily comprehensible warnings in Italian, and make their
marketing subject to prior conditions so as to make them safe.
Likewise, if a product presents risks for certain individuals, the
authorities can require that any such individual be given notice of
said risks in good time and in an appropriate form, including the
publication of special warnings.
Furthermore, for potentially dangerous products, authorities can
temporarily ban their supply, the offer to supply, or their display for
the period needed for the various safety evaluations, and can order
that products already marketed be adapted to comply with safety
requirements within a given deadline.
The failure to comply with any of the above requirements entails a
financial penalty ranging from €10,000 to €25,000, and fines of an
administrative nature (non-criminal) are inflicted in cases of failure
to cooperate with the authorities in carrying out product checks and
in acquiring information thereon and samples.
2 Causation
2.1 Who has the burden of proving fault/defect and damage?
Under the Consumer Code, in product liability claims the injured
party must provide evidence of:
(i) the defect (under the Consumer Code’s definition);
(ii) the damage incurred (based upon the general tort rules); and
(iii) the causal relationship between defect and damage (based
upon the general principles of causation in tort law, proof of
causation often being achieved through presumptions); but
(iv) no evidence of fault is required.
Since the plaintiff has no burden of proving fault, it is up to the
defendant to provide any evidence of grounds excluding liability
(e.g. by proving that the plaintiff used the product inappropriately).
This is why, when dealing with product liability issues under the
Consumer Code, authors often speak of shifting of the burden of
proof to the manufacturer, distributor, supplier, etc.
In tort, under section 2043 CC, the plaintiff must prove:
(i) the defect;
(ii) the damage suffered;
(iii) the existence of a causal relationship between defect and
damage; and
(iv) negligence or fault on the part of the defendant.
It can be particularly difficult for a consumer to provide evidence of
fault in connection with products whose manufacturing processes
are particularly complex.
In issues connected to damages arising from performing a
dangerous activity (section 2050 CC), the injured party must prove:
(i) that the injurer performed a dangerous activity (according to
the definition provided by case law);
(ii) the damage suffered; and
(iii) the existence of a causal relationship between the dangerous
activity and damage; but
(iv) no evidence of fault is required (fault is presumed from the
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