Cassation, sez. III, February 24, 2011, No 4495
1. For highways, provided by art. 2 of the old and the new highway code, and by their nature intended to travel fast, safely, the appreciation on the real "possibility" of control by reference to the specified parameters can not lead to the conclusion that in general affirmative, and therefore recognize the configurability of a report of custody for the purposes of art. 2051 cc
2. In applying the principle should also distinguish the danger immanently related to the structure or appurtenances of the highway, from those caused by the users or by a sudden and not specifically predictable altered state of the thing that jeopardizes the safety users and the integrity of their assets.
3.Mentre, indeed, for the situations of the first type, the widespread use and extension of the res data are generally irrelevant as to the actual behavior of the responsibility of the custodian, for those of the second type shall constitute the chance every time the event giving rise to present the characteristics of unpredictability and inevitability as when it occurred before the agency owner or manager, despite the activity of control and efforts to the contrary in order to ensure early intervention, could remove or properly report the extraordinary danger CREATED, for lack of time necessary to adjudicate.
4. The accident is a factor that relates not to a manager's behavior, but the causal profile of the event, so that the test release is not likely to be conducted in terms of whether or not the blame.
Cassation, sez. III, February 24, 2011, No 4495
(Pres. Preden - Rel Amatucci)
Conduct of case
1 .- At 8:50, 22.12.1990, XXX on the highway to the (omitted), the car of L. Ltd. skidded on the frozen road surface (despite the weather), hit the guard rail and damaged. The owner acted judicially
for compensation in respect of Autostrade SpA, reporting that a few minutes later the same fate had touched another car.
The defendant resisted and the court rejected the application of Lucca with sentence # 1397/03. He considered that Article. 2051 cc and could not be applied that the ex art. 2043 cc should be excluded because, in that month and in that area, the presence of ice is absolutely extraordinary event but certainly not uncommon.
2 .- The appeal of L. was rejected by the Court of Appeal ruling Florence No 1861/05 on the findings that, in accordance with the principles enunciated by the Court of Cassation (Cass., nn. 12314/98 and 921/98), art. 2051 cc was unenforceable due to lack of control reste highway by the concessionaire, while the responsibility of the Highways art. 2043 cc lacked the conditions as the first day of winter, "the frost is a phenomenon that can be estimated as daily subsistence, "and because of the presence of ice, the concessionaire had been warned 20 minutes before.
The appellant was also ordered to pay the costs.
3 .- It occurs in cassation L. Ltd. based on two grounds, which made a counterclaim for Autostrade SpA Italy.
Both parties have filed written statement.
Reasons for Decision
1. - The Board has ordered that the motivation is drawn in a simplified form.
2 .- With the first why the sentence is censured for violation and misapplication of Articles. 2051 cc and 2043 regarding the new guidance regarding the applicability of Article. 2051 cc to the operator of highways with second for failure to state reasons for the appeals court held that the danger was extraordinary, without doing any investigation on the weather of the period and the characteristics of the place where the event had occurred, and without considering or the lack of warning signs or that, in the time elapsed between the report received by police about the presence of ice and the time of the event, was not adopted any measure to eliminate the danger or to warn users.
3 .- The first reason is based, while the second is absorbed.
Following the reorientation inaugurated by Cass., N. 298/03, which hath been aligned la giurisprudenza successiva, costituisce ormai principio consolidato quello secondo il quale per le autostrade, contemplate dall'art. 2 del vecchio e del nuovo codice della strada e per loro natura destinate alla percorrenza veloce in condizioni di sicurezza, l'apprezzamento relativo alla effettiva "possibilità " del controllo alla stregua degli indicati parametri non può che indurre a conclusioni in via generale affermative, e dunque a ravvisare la configurabilità di un rapporto di custodia per gli effetti di cui all'art. 2051 c.c. Nell'applicazione del principio occorre peraltro distinguere le situazioni di pericolo immanentemente connesse alla struttura o alle pertinenze dell'autostrada, da quelle provocate dagli stessi utenti ovvero da una repentina and not specifically predictable altered state of the thing that put at risk the personal safety of users and the integrity of their assets.
While, indeed, for the situations of the first type, the widespread use and extension of the res data are generally irrelevant as to the actual behavior of the responsibility of the custodian, for those of the second type will configure all the fortuitous times that the event giving rise to present the characteristics of unpredictability and inevitability as when it occurred before the agency owner or manager, despite the activity of control and efforts to the contrary in order to ensure early intervention, could remove or properly report the extraordinary danger CREATED, for lack of time necessary to adjudicate.
It was also repeatedly made clear that the accident is a factor that relates not to a manager's behavior, but the causal profile of the event (ex multis, Cass., N. 15383/06), so that the test release is not likely to be conducted in terms of whether or not the blame.
4 .- From these principles, the court departed land has run so far has ruled out the applicability of Article. 2051 cc.
The sentence should therefore be quashed with reference to the same appeals court, which decides on the appeal of L. in accordance with the principles laid down in law and will also regulate the costs of the proceedings of cassation.
PQM
the Supreme Court
http://www.dirittoeprocesso.com/index.php?option=com_content&view=article&id=3201:ghiaccio-in-autostrada-responsabile-anche-il-gestore-salvo-il -Case-chance-Supreme-sez-iii-24-February-2011-n-4495 & catid = 53: traffic-road & Itemid = 80
welcomes the first ground of appeal and declares absorbed the second case report and refers, for expenses, the Court of Appeal of Florence in a different formation.
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