On May 29th 2014 by means of judgements n. 22247 and n. 12046, respectively, the Court of Cassation Criminal Section and the III Civil Section dealt “specularly” with the examination of specific cases, in which they recognized the elements of the worker’s imprudent behavior. Both Sections have confirmed the undisputed and established line taken by the Court of Cassation, according to whom “on the subject of work accident prevention and employer responsibility, the employee’s conduct is not apt to relieve the employer of his responsability when it is carachterized by imprudence, incompetence or negligence, but only when it is actually abnormal, becoming the only causal element of the fact, and this occurs when it assumes the carachteristics of unthinkability and exorbitance towards the working procedure”. Therefore, in order to be able to completely exclude the employer’s liability, the abnormity of the conduct of the employee must express itself in unpredictable behavior, i.e. such that it makes it impossible to avoid the injury, even taking all the precautions required by the rules imposed to the employer. In the two specific cases, however, both judgements – while drawing from the same assumption and, therefore, sharing the same logical and legal process- reached opposite decisions. Indeed, in the matter submitted to the Criminal Section (judgment n. 22247) it was ascertained that the imprudent behavior of the worker, who then died, could have been averted by an appropriate supervisory activity that could have prevented the wrong conduct from its start (the employee had removed the protective tubes off a parapet of a hoist-tower). Whereas, in the case brought before the III Civil Section (judgment no. 12046), the employee’s conduct was clearly “out of order”, thus constituting the only cause of the damage that the worker caused himself. In particular, the employee had brought into being an absolutely careless behavior of the rules of common prudence, of the directives issued by the company, as well as of his responsibilities as a team leader. This complete disapplication of the rules occurred right from the loading of the materials at the place of work, where the worker, contrary to the instructions received, presumably to complete the work earlier: a) took two poles to carry and unload – and not just one, as he should have -; b) equipped himself with base plates of inadequate size compared to the load that they were going to bear and to the soft nature of the terrain on which to unload; c) omitted to secure the poles during the journey; d) performed the unloading operation in total disregard not only of the rules of caution, but also of the very principles of rationality, exposing himself to an unnecessary risk and not listening – almost ostentatiously and provocatively – to the calls for prudence and for respect for the rules coming from his own subordinates, i.e. from the workers he was coordinating at the time. An imprudent behavior brought into being by the worker, therefore, emerges, already in his role of team leader and of person who was supposed to be in charge not only of his own safety but also of that of others. This leads outside the control sphere – and therefore outside the margins of company responsibilities – to the point that it imposes itself as the only efficient cause of the occurance of the damage.
The Court of Cassation Civil Section has, therefore, described the conduct of the employee not just in terms of simple and repeated carelessness, but also of free and unjustified taking of an unneccessary risk, such as to be considered as abnormal, unpredictable and exorbitant behavior compared to the directives received. This is the only hypothesis able to sever the causal connection and to completely exclude the employer’s responsibility.
For these reasons, the Supreme Court Civil Section considered the employer was not responsible for the employee’s death and dismissed the action brought by the heirs to obtain compensation for the damage.
(Labor department – Alessandra Giordano – 0039(0)6 68210067)
