ITA 
Published on Sole24Ore- NT Lavoro – on 10/04/2024
The employer is fully responsible for the injury that is a result of failure to comply with accident preservation regulations, with the exemption of those cases where the employee’s conduct was abnormal, unpredictable and exorbitant, in relation to the work process and directives received.
Court of Cassation no. 9120/2024
In the present case an employee appealed to the Court, claiming for damages resulting from the injury happened to him while he was filling up his truck. In particular, the employee tripped over one of the dispensing tubes of the Company’s gas station, while standing on a platform located at a lower level that the fuel dispenser.
The Court of Appeal rejected the employee’s claims because it found that the accident was due to his negligence and imprudence and because the employee had not proven that the employer had violated any laws on accident prevention
The employee appealed in Cassation claiming that the injury was due to the employer’s failure to provide appropriate safety measures in the staging area where the Company’s filling dispenser was located.
The Court of Cassation ruled in favour of the employee.
By preliminary way the Court of Cassation remember that pursuant to Article 2087 of the Civil Code the employer must adopt all measures and precautions to preserve the psychological and physical integrity of the employee, taking into account the concrete characteristics of workplaces and, in general, the reality of the company.
In fact, article 2087 of the Civil Code links the obligation to protect to the concrete and undefined risk situations to which the employee may be exposed. Therefore, this norm requires the employer to adopt also those measure that are not “typical” and that are required by technical knowledge and experience referring to a specific historical moment.
With regard to the burden of proof, the employee has to prove the fact, the employer’s non-fulfilment and the causals nexus between the non-fulfilment and the damage but not also the employer’s fault. Thus, the employee’s burden of proof cannot include the identification of the specific safety regulations violated by the employer especially when they are not typical measures.
According to the Court of Cassation, therefore «the employer in case of accident at work, is exempt from liability only when the employee’s conduct has assumed the characteristics of abnormality, unpredictability and exorbitance in relation to the work procedure and directives received».
Lacking those elements, the employers is fully liable for the injury, and any negligence on the part of the employee its irrelevant since the employer is obliged to protect the employee’s safety despite his imprudence and negligence.