Condominium falling down the stairs? Compensation is difficult.
Condominium falling down the stairs? Compensation is difficult.
No compensation for damage to the condominium who slips on the condominium stairs since he knows perfectly the places and their danger.
Avv. Caterina Natalotto – Court of Palermo 25/05 / 2021l
L to fall within the condominium must be considered due to the fortuitous event, consisting in the fault of the injured, where the latter, with good visibility, by adopting an ordinarily cautious behavior, could prevent the fall thereof.
In fact, the more the situation of possible danger is likely to be foreseen and overcome through the use of normal diligence, the more an accident must be considered the causal efficiency of the behavior of the injured party in the causal dynamism of the damage, until the etiological link between fact and harmful event.
The damage complained of by a condominium that slipped down the domestic stairs due to the poor state of maintenance of the steps, according to the Court of Savona with sentence no. 328 of 27 April 2021, must be traced exclusively to the imprudent and / or negligent conduct of the same which declared that it perfectly knew the state of the places in place for many years, and that no changes had been made.
The deciding party did not consider recognizing the existence of any pitfalls and / or pitfalls but only an imprudent and / or negligent conduct of the victim.
Falling down the stairs and strict liability pursuant to art. 2051 cc
According to the majority jurisprudence, the condominium as custodian of the common goods is liable for objective liability configurable by virtue of the only material relationship existing with the common goods and which, as such, is excluded only when ” the event is attributable to a fortuitous case attributable to the causal profile, that is when there is an external factor which, interfering in the current situation, has in itself produced the event, assuming the character of the so-called autonomous fortuitousness, or when it occurs in cases in which the thing has been made an etiological factor of the harmful event by a completely exceptional extraneous element or fact (so-called fortuitous incidental), and therefore unpredictable “(Cass. civ. 11695/2009).
Nevertheless, obtaining compensation for damage caused by a fall in a condominium is increasingly difficult. It is not enough to provide proof of the causal link between the event and the damage or the existence of the trap or trap, it becomes essential to investigate the “behavior” of the injured party in the event.
The conduct of the injured party in the causal incidence of the harmful event
The art. 2051 cc, in addition to not exempting the injured party from proving the causal link between the thing in custody and damage, that is to demonstrate that the event occurred as a normal consequence of the particular, potentially offensive condition possessed by the thing, excludes the responsibility of the custodian of the common thing if this proves the fortuitous case, which can also include the conduct of the same victim.
According to the traditional jurisprudence of legitimacy, the significant damage – for which the custodian is responsible – is regardless of the characteristics of the thing being guarded , whether it is therefore more or less dangerous, so-called sagente (or endowed with intrinsic dynamism) or does not reveal rather other external factors .
In fact, the Court of Cassation is mentioned. civ. n. 2480 on 1/2/2018, according to which in terms of civil liability for damage from things in custody, ” the conduct of the injured party, who enters into interaction with the thing, behaves differently depending on the degree of causal impact on the event harmful, in application – even unofficially – of article 1227, paragraph 1, of the Italian Civil Code, requiring an evaluation that takes into account the general duty of reasonable caution, attributable to the principle of solidarity expressed by article 2 of the Constitution, so that, as much as possible the situation of possible damage is likely to be foreseen and overcome through the adoption by the injured party of the precautions normally expected and foreseeable in relation to the circumstances, the more the accident must be considered the causal efficiency of the imprudent behavior of the same in the causal dynamism of the damage , to the point of making it possible for said behavior to interrupt the etiological link between fact and harmful event, when it is to be excluded that the same behavior constitutes uses a reasonable or acceptable eventuality according to a probabilistic criterion of causal regularity, connoting itself, instead, for the exclusive causal efficiency in the production of the accident “.
Compliant with Cass. Section 6 – 3, ordinance no. 9315 of 3/4/2019, and in a similar sense v. also Cass. Section 3, sentence no. 15761 of 29/7/2016, according to which the responsibility of the owner of a road open to the public can be influenced by the conduct of the victim, who, however, assumes exclusive causal efficacy where it can be classified as abnormal, i.e. extraneous to the range of possibilities factuals that can be reasonably foreseen in relation to the context, being able, otherwise, to detect for the purposes of the causal competition pursuant to art. 1227 cc
Likewise, according to Cass. III civ. n. 25837 of 31/10/2017, the conduct of the victim of the damage caused by a thing in custody constitutes a “fortuitous event”, capable of excluding the responsibility of the custodian pursuant to art. 2051 cc, where it is negligent and unpredictable. See also similarly Cass. Section 6-3, ordinance no. 27724 of 30/10/2018: the criterion for attributing responsibility pursuant to art. 2051 cc has an objective character, being sufficient, for its configuration, the demonstration by the plaintiff of the causal agent between the thing in custody and the damage , while the custodian bears the burden of the release proof of the fortuitous event, understood as a factor which, on the basis of the principles of causal regularity or adequacy, excludes the etiological link between thing and damage, and includes the careless conduct of the victim, which is relevant for the purposes of the concurrence of responsibility pursuant to art. 1227, paragraph 1, of the Italian Civil Code, and must be graduated on the basis of an assessment as to its actual causal impact on the harmful event, which can also be exclusive. Compliant id. n. 30775 of 22/12/2017.
In summary, therefore, we can summarize by saying that in the event of a fall on the condominium stairs , the victim has the burden of proving the damage and the causal link between the thing and the damage, while it is not up to him to prove the insidiousness of the res, and the caretaker / condominium has the onus probandi of the so-called fortuitous event, that is the careless or imprudent conduct of the victim, that is to say that external element that causes or contributes to causing the accident by eliminating the objective responsibility of the guardian of the thing.
GECOSEI by Giuseppina Napolitano
