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Product defects

How is a ‘product defect’ defined in your jurisdiction?

The definition of ‘product defect’ is contained in Article 117 of the Consumer Code, pursuant to which a product is defective when it does not offer the safety level that a person is reasonably entitled to expect taking into account all circumstances, including:

  • the way in which the product was distributed;
  • the product’s packaging and evident features, and the instructions and warnings provided;
  • the product’s reasonably expected use and life cycle; and
  • the date on which the product was put into circulation.

Causation and burden of proof

How is causation of loss or damage established in relation to product liability claims and where does the burden of proof lie? Can this burden be shifted in any way?

With regard to causation, no statutory definition of ‘causal link’ is provided. Therefore, Italian case law – including that which relates to product liability claims – has developed and consistently applies the ‘more probable than not’ standard, whereby causation is established if it is more probable than not that the damage has been caused by the alleged event (ie, the product’s alleged defectiveness), rather than by any alternative events. In applying this test, the Italian courts usually take into account:

  • the scientific likelihood;
  • the statistical frequency; and
  • the possibility to exclude known alternative causes.

The mere temporal link between the damage and the allegedly harmful event (ie, use of the allegedly defective product) is not sufficient per se to establish causation.

Since the product liability regime set out by the Consumer Code coexists with the national general tort liability regime, as well as with the national strict liability regime governing the exercise of dangerous activities, the burden of proof varies depending on which liability regime forms the basis of the claim. Regarding product liability claims under the Consumer Code, the injured party has the burden of proving:

  • that the product was defective;
  • the loss or damage incurred; and
  • causation between the alleged defect and the damage or loss.

No evidence of manufacturer fault is required. If the case is assessed and decided on the basis of the national general tort liability regime, evidence of manufacturer fault is required.

The burden of proof shifts entirely in cases where the claim is assessed and decided on the basis of the national strict liability regime applicable to the exercise of dangerous activities. In such cases, the manufacturer of the allegedly defective product has the burden of proving that it adopted all of the safety measures necessary to avoid the damage.

Legal bases for claims

On what legal bases can a product liability claim be brought?

Product liability claims can be brought pursuant to the Consumer Code and the national general tort liability regime under Article 2043 of the Civil Code. Since the Consumer Code allows consumers to seek – alternatively or cumulatively – other forms of protection provided by law, product liability claimants often sue under the Consumer Code and Article 2043 of the Civil Code, and in certain circumstances under the national strict liability regime for dangerous activities. In addition, claimants often bring product liability claims that rely on a number of liability regimes.

Criminal liability

Can a defendant be held criminally liable for defective products?

Yes. In particular, placing dangerous products on the market is considered a misdemeanour, but can also amount to a felony where it causes serious consequences (eg, death or personal injury). A misdemeanour may be punishable by six months’ to one year’s imprisonment and a pecuniary penalty ranging from €10,000 to €50,000.

Liable parties

Which parties can be held liable for defective products?

The manufacturer is the prime liability target in cases of defective products. The importer, supplier or distributor of the allegedly defective product may also be held liable when:

  • the manufacturer is unidentified; or
  • the supplier does not provide the injured party with the identity of the manufacturer within three months from:
    • receiving a request from the injured party; or
    • service of the writ of summons.

Limitation of liability

Can liability be excluded or mitigated in any way?

To exclude its liability, a product manufacturer must prove that:

  • it did not put the product into circulation;
  • the defect did not exist when the product was put into circulation;
  • the product was neither manufactured for sale nor manufactured or distributed in connection to the manufacturer’s professional activity;
  • the defect is a consequence of complying with a binding law or provision;
  • the state of the art and the scientific knowledge on the date that the product was put into circulation prevented the defect from being identified; or
  • the defect was entirely due to:
    • the design of the product in which the raw material or component was incorporated; or
    •  compliance with the instructions provided by the manufacturer for incorporation of the raw material or component into the final product. (This defence applies in cases where the manufacturer or the supplier provided only the raw material or a product component.)

Further, liability can be excluded or reduced if the injured party adopted negligent conduct (eg, wrongful use of the product) which contributed to the cause of the damage.

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