Concurring of risks

The concurring of risks concerns the distribution of liability in cases where two or more activities subject to the no-fault liability regime cause a single loss together. Such losses result in the joint and several liability of those to whom the law attributes the risk.⁵ The law creates a fundamental problem, however, because it does not establish any criteria for the distribution of the loss between the persons liable.

In discussing the issue of concurrent risks subject to the no-fault regime, Trimarchi avoids founding the discussion on the causality principle because, in his view, it obscures, rather than clarifies, the real issues involved. The legal doctrine that divides liability among those who contributed to the injury in proportion to their degree of fault is meaningless. On the contrary, the injury may be attributed entirely to several causes, not to one cause more than another. According to Trimarchi, the concept of ‘cause’ never allows a defini­tive quantification of relative harm.

The proper solution to the problem of concurrence of liability without fault apportions the burden of the damages in a manner consistent with the func­tion of risk liability. Again, the function of risk liability is to put economic pressure on the person who controls the activity to reduce the risks in accord­ance with the total costs of the activity.

This analysis of joint and several liability is not exhaustive, however, because it does not take account of the fact that some activities cause small losses frequently while others cause large losses infrequently. If such differ­ent risks cause an injury, then calculating the amount of loss attributable to each risk is problematic. In such a case, the entrepreneur whose activity caused a risk of a small injury may find himself faced with joint liability for a greater loss than the economics of his activity had prepared him for. For example, he may have purchased insurance with a low coverage per claim and thus be forced into bankruptcy by a single, large claim. Trimarchi thinks that such liability could have been avoided if the entrepreneur had obtained an adequate insurance coverage. Given the economic function of strict liabil­ity as discussed above, Trimarchi suggests that the loss be shared by the entrepreneurs according to the amount each could have expected as a result of his activity.

In discussing situations where loss is caused by activities subject to both the risk and the fault regimes, Trimarchi identifies several possible types of cases. Liability may be caused concurrently by two or more persons who are liable both for risk and fault; by several persons, some liable for risk and fault, others only for risk, and others only for fault; or by several persons, some liable only for risk, others only for fault.

Suppose that a smoker disposes of a cigarette butt in a large quantity of flammable material and so causes a fire. In this case, the fire is caused by the smoker’s negligence, and by the pre-existing risk created by the person who was responsible for the container of flammable material. Risk liability, as discussed, forces entrepreneurs to internalize all the costs of their enterprise and compensates victims. Trimarchi suggests that the rule of contribution among joint tortfeasors should burden the person liable for fault with a sum which is an adequate punishment and burden the other party with the remain­ing loss. Fault liability, according to Trimarchi, functions to punish tortfeasors, to prevent harm and to compensate victims. Since the damages for fault (negligence) are broader than those for risk (strict liability) he suggests that the person liable for fault should pay the total damages, but be indemnified by those strictly liable for the amount of the damage caused by the risk they each created. As Trimarchi notes, there is a valid basis for the rule of indem­nification in the Italian Civil Code.⁶ Moreover, one can use the principle of indemnification according to the above criteria to solve all of the potential combinations of risk and fault liability identified.