In general, in our Order who has custody of a thing he responds art. 2051 cc of the damage that it causes, regardless of the danger. And the responsibility exist in relation to all damages caused by the same both for its intrinsic nature that for the onset of harmful agents.

It ‘a tort objective that is a no-fault liability.

It “ignores fact from ‘verify the wrongful activity or behavior of the caretaker and nature precisely objective that is tied to the mere existence of a causal link between thing and event”.

There is talk now so “risk from custody (rather than of guilt in the case) and the presumption of liability (rather than presumed fault)” insomuch that the guardian of negligent does not respond in a different way by the caretaker diligent and prudent if it causes damage to third parties: that is irrelevant to the resulting responsibility that the conduct of the guardian is or is not culpable (Cass Civ 19/02/08 n. 4279).

“The ratio of the standard it is to impute liability for those who, profiting from what, is in terms of having to bear the uncomfortable and to control the risks of its activities from which it draws profit.”

And if these generate a damage, it is more fitting that the burden of this serious side keeper instead of the damaged, because it is the person who can best control the activity and prevent risks.

It must therefore be regarded as custodian (and therefore responsible) who actually controls the thing and not necessarily the owner: Cass. Civ. 30/11/05 n. 26086 considered:

“… Irrelevant, with reference to the ‘attribution of responsibility due to the propagation of seepage water from a floor above to the one below, the fact that the system of waste water was, overall, a good pool, and instead considered positively identified the report made a fundamental responsibility of art. 2051 cc in the fact that the plant was placed at the service of the flat roof which was the sole owner of the applicant, resulting detectability in his person the subject able to control the manner of use and conservation. “

The caretaker also liable for damages that are caused by its property even if arising from construction defects involving the current third party liability: Trib. Genova 10/6/2006 has for example claimed the responsibility of the building custodian, as well as the company that had carried out the renovations, for damages sustained in the ‘property of the individual as a result of serious infiltration of rain water from the flat roof.

Obviously it is guarded because of the damage to the extent it is an essential element of the offense and not a “mere chance”.

Court of Naples, detached section of Casoria, 02/02/10 n.50: “The guardian can not be held liable under art. 2051 cc of the theft suffered by a condominium which – because of the difficulty of access to the courtyard for non functioning of the electric gate – had parked the car in the public way: having the damage be attributed to the responsibility of the third author of the wrongful act and not the conduct of the custodian, framed in the rank of “mere chance”.

Looms over the damaged its exclusive evidence of a causal link between the thing and the harmful event Cass. Civ., Ordinance No. 16/4/2012. 5977, ruled out the responsibility of the Condominium for damages suffered as a result of a crash caused by a metal grate protruding from one / two cm. from street level as the obstacle was visible and in an area where there were many other possibilities which may constitute stumbling.

The only proven otherwise release the presumption “rebuttable” of his responsibility (the burden of which is borne by the guardian) is proof positive of the “accident”: the guardian has to prove the existence of a fact outside his sphere of custody having that pulse causal self and unforeseeable, unavoidable and exceptional such as to break the causal link the “accident” should be understood in a broad sense and also extends to the fact both the third (that the same corrupted) that has an efficacy causal likely to totally cut off the link between thing and damaging event: as in the case of conduct (Cass. n.16029 7/7/2010 and 13/7/2011 n. 15389).

“Unforeseen and unexpected” from the same victim drowned in a swimming pool in which he had introduced past the gate outside the opening period despite the prohibition of entry of unauthorized persons and have not been authorized by the guardian (Cass. Civ. 08/28/2009 n. 22807 in Arch. Loc. p. 273/2010).

The Court in fact believes that the obligation of the guardian to report the threats posed by the use of the thing stops in front of an improper use of the danger of which is so obvious and immediately appreciated by anyone as to make it completely unpredictable, so imprudence the injured who have suffered damage as a result of the misuse integrates the accident. Cass. Civ. 10/08/2004 n. 24804 exclude the liability of the apartment block in the event of damage occurring to a subject that was introduced in the evening in the courtyard used for parking even though the gate and I had played football injuring with glasses covering the grates of ventilation in a garage . So creating the CD. “External factor” interrupting the causative link between thing and damage.

Given the above, it can be configured specifically the responsibility under Article 2051 cc is sufficient that the plaintiff prove the occurrence of the damaging and its causal link with the good, except precisely the test of fortuitous looming on the keeper.

“The initiation of legal proceedings under Article. 2051 cc will subject the plaintiff to a burden of proof greatly facilitated, as it is sufficient for the purposes of the statement of responsibility for damage in case what evidence that the injury complained derived from the thing itself, without the need to prove that the conduct of the caretaker It assumes production of the damage, whether of commission or omission. The guardian, however, lies with the test release of the accident, which causal factor affecting the profile of the event, not due to the thing, which is a direct source, but to an external element, unpredictable, exceptional and unavoidable, and not even to a responsible behavior “(Trib. Genova, Sec. II, 15/6/2012).

“In the event of persistent uncertainty sul’individuazione the real cause of the damage, rests with the keeper made ​​the unknown, as not likely to eliminate the doubt as to the conduct causative of the event” (Cass. Civ. 2 / 2/2006 n. 2284, 03/10/09 n. 5741 and Trib. Milano 22/12/2011).

The guardian therefore also responds to the cd. “Unknown fact” that is, when it is impracticable to provide concrete proof that the cause of the damage will depend on an external factor, ie by unforeseeable circumstances not attributable to him because it was precisely the fact that the unknown does not clarify the causes of the event.

On this point, however, Cass. 10/10/2008 n. 25029 makes a subtle distinction, stating that: “If it is certain that the harmful event occurred because the third was unknown (the third, not the fact) in this case – being broken the causal link between it and the ‘ harmful event – the keeper is not liable for the damage. “

More specifically in the specific matter condominium, what are the assets, the parties, the joint facilities?

Article. 1117 cc lists them meticulously and detail and in paragraph 3 identifies them (unless otherwise Regulation) in “the works, installations, artifacts of any kind that serve to ‘use and enjoyment of common as elevators, wells, tanks, aqueducts and also the sewers and drainage channels, the installations for water, gas, electricity, heating and the like, to the point of branching of the plants to the locations of the exclusive property of the individual owners.

The latter specification (the “branching point”) has created over the years frequent problems with respect to water systems or sewage where, in many cases, it is not obvious addivenire the exact boundaries between plant common and private properties.

The applicant in the present case the most practical and therefore in case-law are the damages to individuals by infiltration of water from the pipes of which is precisely discusses the nature condominium or less, particularly that specific oblique portion called “sling” through which private conduct is grafted , is joined in the vertical column peacefully condominium because it serves the use of all.

The law has always been unanimous in considering the sling owned the apartment in which it is subservient, instead Cass. Civ. 19/1/2012 n.778 (in Arch. Loc., Page 151/2012) said for the first time should be classified as good condominium, with all its consequences be sued temadi damages.

Another case widespread as problematic for the legitimation (block or individual private condominiums) is the fall of plaster by overhanging balconies, of which we discuss the property.

In a nutshell, the law considers them pertaining to the private housing units. The communal nature is detectable only for decorative pieces with ornamental and aesthetic purposes. Indeed, they are regarded as constituent elements of the facade and then condominali.

The species is a great deal of cases and case law for the damage from falls, especially in the condominium stairs. In this regard the damaged often invoke insufficient lighting themselves why the accident.

The rejection of applications for compensation is mostly based on the predictability of the event by the injured: since in most cases of a condominium is supposed that the same is, or should be, aware of all the characteristics of ‘ immobile and therefore can / should paying attention to it, not being able in this case to define the darkness of the stairs, or the slipperiness of the same for fall of liquid, such as an alteration unpredictable or invisible to the subject.

For example Cass. Civ. 05/13/2012 n. 11592 ruled out the responsibility of the condominium for damages suffered by a condominium fell on the stairs where there was water infiltrated by a faulty window because the damage could not know such an eventuality.

Or Trib. Bassano del Grappa 31/5/2011: “The condomina well knew the condition of the premises and must be assumed that you have not submitted the corridor without first turning on the lights. It has not been established or that the corridor floor was wet or that such a situation (where subsistent) has caused the fall of the actress. In any case, it should well know that once a week the common parts of the building were cleaned and once found, after turning on the lights in the hallway, that the floor was not yet dry, he should proceed with the caution that each person who is walking on a wet surface prudently adopts.

In conclusion, the cause of the accident is attributed exclusively to his imprudent conduct, you want to have forwarded the dark hallway without first turning on the light, do not want to have inspected the corridor before inoltrarvisi, you want to have it without the precautions that the path situation demanded places. “

Finally Cass. Civ. 16/10/2008 n. 25251 was one of the few rulings that involved the responsibility of the Condominium art. 2051 cc also the figure of the Director “has the task of providing not only the management of the common things but also to the custody of them with the consequent obligation to ensure for sound manner to third parties or to the same apartment buildings. This obligation exists even in the event that the third block contracts to work on the parts of the building condominium, unless the duty to supervise such work will not be given to someone other than the administrator. It follows the same is liable for damage to person suffered from a condominium in dell’inciampo result in a hole in the courtyard created by the company that had been contracted maintenance of the property.

Piacenza, Saturday, Sept. 15, 2012.

MR. FRANCESCO MAXIMUM TISCORNIA