1. Fault as a parameter for measuring civil liability in determining the final compensable damage
The final compensable damage can be caused by the combination of human causes attributable to the conduct of several people or be the consequence of the combination of attributable natural and human causes.
The civil code regulates the concurrence of human causes attributable to the articles. 2055 and 1227 cc, in which it provides for the graduation of responsibility corresponding to the causal efficiency of the negligent conduct.
To implement the reduction in the amount of compensable damage caused by the injurer with the negligent contribution of the creditor/injured party (art. 1227 1st paragraph of the Civil Code) the creditor must be required, by law or by contract or by general duty of fairness, to adopt a specific behavior inherent to the execution of the obligation, suitable for reducing or excluding the prejudicial effects (e.g.: the contributory negligence of the art dealer who, having purchased a work which later turned out to be fake, had not checked its originality at the time of purchase and had relied on the seller’s guarantees, as he was not legally required to carry out said control).
Indeed, it is a consolidated principle of law that the expression “culpable act” should not be understood as a psychological element of guilt that has relevance exclusively for the assertion of responsibility, which presupposes imputability but must be understood as synonymous with behavior objectively in conflict with a rule of conduct, established by positive norms or dictated by common prudence (ex multis, Cass. Civ. n.14548/2009 and Cass. Civ., n.3242/2012).
It is clear that when the contribution of the injured party is negligent, both parties would be entitled to a percentage of responsibility, consistent with the causal contribution; however, if the conduct of the injured party is devoid of the connotation of culpability it would be equated to a natural cause and would be irrelevant for the quantum of the compensable damage.
Referring to the consolidated orientation of jurisprudence, the system aims through the solidarity mechanism (art 2055. cc) to facilitate the injured party in obtaining full compensation, thus reconciling with the modern concept of non-contractual liability which places the damage at the center of its interest—injustice suffered by the victim.
Article 2055 of the Civil Code presupposes that each contribution has been causally efficient and then limits the measure of causal efficiency to be attributed to each individual responsible through the element of fault: based on this, the fault, it will be possible to determine the amount of damage, which each co-author is required to compensate.
After this brief observation, it is clear that in the legal system, civil liability is regulated by the degree of etiological relevance of the illegal conduct. The injurer could not be charged with that portion of damage that derives from other causes, thus recognizing proportional liability. We specify that “other causes” refers only to causes attributable to negligent human conduct.
2. The imbalance between human causal contribution and extension of responsibility to the harmful event generated by human and natural contributory causes
The issue is complicated if the harmful event is the result of the interaction between a human cause and a natural cause, in the sense that neither of these two alone would be able to produce it, but only by interacting with each other do they cause the harmful event.
The prevailing doctrine and jurisprudence believe that the incidence of natural contributory causes has its roots in art. 1218 cc: they therefore either present themselves in such a significant way as to sever the causal link or are not at all relevant for delimitating the quantum of the compensable damage which will follow the integrality rule.
On the subject of concurrence of natural and human causes, the Court of Cassation has stated several times: “The evaluation of a situation of concurrence between non-attributable natural causes and attributable human causes can lead, alternatively, to a judgment of total responsibility for the author of the human cause or in judgment of total absolution from all responsibility, or according to which the Judge deems to have remained active in the first case (under paragraph 1 of Article 41 of the Criminal Code) or to have ceased to exist in the second case (under under the 2nd paragraph 41 of the criminal code) the causal link between said attributable human cause and event ” (Cass. 16.2., n. 2335 Cass. 21.7.2011, n.15991).
Another problematic aspect of the case is also the balance between the measurement of the causal contribution and the extent of responsibility. The “all or nothing” logic could lead us towards unfair and unpredictable consequences; it would not allow sanctioning of those illicit conducts that do not exceed the more probable than not threshold; it would not be efficient to assign compensation for the entire damage to the person who could have caused the damage to a non-exclusive extent.
The Supreme Court, however, asserted: the failure to make a proportional reduction due to the lesser severity of the fault, since a comparison of the degree of etiological incidence of multiple competing causes can only be established between a plurality of guilty human behaviors, but not between an attributable human cause and a non-attributable natural contributory cause. It would thus be unfair to make the tortfeasor bear the full burden of the negative consequences of the harmful event if natural causes not attributable to his conduct also converge on the latter.
In 2024 the SC stated that ” if the production of a harmful event, such as the death of a patient, attributable from an etiological point of view to the concomitance of the health worker’s conduct and the natural factor represented by the pathological situation of the deceased subject, the Judge must proceed, if necessary, also with equitable criteria, to evaluate the different efficiency of the various contributory causes, to attribute to the author of the harmful conduct the correlative part of the responsibility, to leave the burden of the damage in the production of which he contributed to determining his responsibility to the injured party state of health ” (Civil Cassation, Section, III of 16 January 2024 n.975).
However, this is an isolated case as traditional and more recent jurisprudence has overcome it and has used and still uses the “all or nothing” theory. It is appropriate to specify the equitable criterion of art. 2056 of the civil code, which refers to art. 1226 of the civil code, has the aim of avoiding that, if there is an impossibility on the part of the injured party to prove the amount of damage suffered, this may remain without protection: the assessment of the damage by the Judge does not concern the delimitation of the compensable damage ( the amount of the compensable obligation), but rather the liquidation of the extent of the damage (the quantum of the compensatory obligation).
It is more than clear that the evaluation of the efficiency of the contributory causes in producing the damage is carried out with the criterion ‘more probable than not’ furthermore the power to fairly liquidate the damage is subject to two conditions: 1) the existence of the damage and the impossibility to prove the damage in its precise amount by tconcludebligation for the Judge to indicate the criteria used in the settlement of damages.
We conclude that the equitable criterion cannot be used in determining the measure of causal efficiency attributable to the person responsible based on the element of fault since the Judge cannot fill the gaps and evidentiary inertia.
3. The concept of partial liability in France and proportional liability in the Unitethattes
Let’s analyze how the laws of foreign states have resolved this problem.
In France, external which has the characteristics of force majeure produces two consequences: the author of the damage is exempted from his responsibility in this hypothesis, whatever the form of manifestation of the external cause (the intervention of a third party, the negligent act of the victim or a fortuitouexceptexistence of the obligation of reparation because the causal link has been interrupted, except cases in which the author of the damage has committed the illicit act, at the same time an external cause, which presents the characteristics of force majeure, the injurer can only partially himself who liability.
Since this solution was applied there is a state ruling, which refuses to exe, pt from responsibility the State Maritime Transport which is considered as guardians of ships, therefore, states that the accident was caused, mainly, by a storm characterized by extreme violence to the characteristics of a cyclone and also confirms the attribution to the ship, competent authority, for the defective coal which if it had been of better quality, the tragedy could have been avoided or less damage would have been produced and for this reason recognizes partial responsibility to Maritime Transport of State (com.19 juin 1951).
If the fortuitous event (natural event or collective action) does not take on the characteristics of force majeure (irresistible, unpredictable, external) the perpetrator of the damage cannot benefit from any exemption, even positively (2nd civ., 30 June 1971) is obliged to compensate the victim of the accident in full. The most recent jurisprudence uses the same theory as the Italian “all or nothing” system.
In the United States, however, the notion of proportional liability was introduced, not extending to the entire damage, but proportionate to the risk created by the person responsible; this innovative approach was offered by the Sindell V. Abbot Laboratories case.
In the case in question, the alternative liability principle is used, already used in US jurisprudence in cases of relative uncertainty or in cases of multiple possible damages, all of whom are held responsible, in the case in question the Court of California uses the principle of market liability, in which all defendants were held liable in proportion to the market share held by each.
The theory of market liability introduced the concept of risk, i.e. it divides the compensation based on the risk created by each injurer. It can be observed that in many cases it cannot be said with certainty that a given antecedent is the cause of an event but can only be said to have increased the possibility of the latter occurring.
This increase in risk can be assessed as unjust damage, anyone can demand that about lawfully increase the risk of injury, where such injury occurs and liability could not be asserted for the final injury suffered by the injured party, but only about to the increase in risk, the damage would be the illicit increase in risk, the compensation would be in proportion to this increase.
The same reasoning is used in liability for loss of chance, it is referred to as liability for increased risk. By chance we mean loss of the probable positive result which is often used in the context of medical liability, precisely to avoid, in this situation of uncertainty, attributing full and extensive responsibility to the entire damage however caused (loss of the result expected profit) understood as a prejudice in its own right. The same logical thread runs through the theory of risk, the increase in risk corresponds to the decrease in the chance of avoiding it. In this perspective, the compensable injury would not be the final damage but the illicit increase in risk (autonomous injury). Proportional (partial) liability is compatible with the internal system as it is provided for in the articles. 2055 and 1227 cc