The damage caused by objects: allocating liability

After examining the foundation of the rules on liability for harm occasioned by things, (articles 2051, 2052, 2053, 2054, subsection 4 of the Italian Civil Code and articles 965 and 978 of the Admiralty Code), and explaining the principle of risk liability that these rules develop along with the principle of vicarious liability, Trimarchi considers the criteria for allocating the liability among the parties which own, use or control the object that has caused the harm.

Again, Trimarchi tries to formulate principles for allocating liability that are adapted to the functions of the risk liability already described. Imagine that A rents a machine to B. If A is liable for damage caused by the machine, A will charge B more than otherwise, and use the money to insure himself against the risks of damage. If B is liable for damage caused by the machine, B will not pay as much, and will use the savings to purchase insurance. In such a situation the allocation of liability, if known in advance, might matter less since, through the market mechanism the cost of the accident would eventually fall on the party controlling the risk. However, Trimarchi analyses why placing liability directly upon this party would be more efficient; if only A or B has knows what risks the machine presents, then only the informed party would appreciate the need for insurance. Similarly, if neither A nor B has any assets and is judgement-proof, the party without assets would have no incentive to buy insurance. Under these circumstances, allocation of liability is very important. Thus, if only A knows of the risks and has assets because he is in the business of renting the machine, the risk must be allo­cated to A. If it is not, neither A nor B has an incentive to insure against the risk, and the unfortunate party to whom risk is finally attached will have made no provision to account for it.

Taking this economic and functional analysis into account, Trimarchi ap­proaches the fundamental problem of allocating liability. Distinguishing between two situations is important. On the one hand, use of some objects, to a certain extent, is not related to risk. For example, a house can collapse and cause damage because of a defect in its structure unrelated to a lessee’s use. On the other hand, some objects are rendered dangerous through their use. A typical example is the use of machines and instruments in a plant managed by an entrepreneur. In the first situation, the owner, not the tenant is always the person responsible. In the second situation, the entrepreneur, not the owner is responsible.

Trimarchi finds support for this analysis in the rules of articles 2051-54, subsections 3 and 4 of the Italian Civil Code, and formulates the generally applicable principle that liability should be placed on the person who is in the best position to predict and calculate the risk, and who is thus in the best position to control and modify the risk in response to liability. He notes that identifying this person depends on the facts of a case. In the case of a bailor/ bailee, for example, liability is usually placed on the bailor, unless the bailee’s relationship to the risk is of a sufficiently long term that the bailee can predict and assess the dimensions of the risk and take efficient precautions against it. Therefore, the bailee is generally responsible if he uses the object that causes the loss professionally.

In sum, according to Trimarchi, it is essential that liability attaches to a person with a sufficiently continuous relationship to the risk. Other aspects, such as the payment of the rent, maintenance of the object, or the consensus of the parties regarding these issues are merely persuasive, not determinative, factors.