Unpredictability of the injured person’s behavior does not exclude the employer’s liability.
A topic that often comes up again and again for the attention of criminal judges is that of the exonerating value of the reckless conduct of the injured worker. Defenses of defendants, often employers or managers, argue that the worker’s reckless conduct would constitute the sole and sufficient cause of the event, which, as such, excludes relevance to other factors.
In legal terms, the argument translates into a case for the application of Article 41 of the
Criminal Code, that is, of disruption of the causal link.
The traditional perspective of the Supreme Court, however, attributes an exempting effect for the employer only to those behaviors of the employee that are characterized as abnormal, wholly exceptional, totally unforeseeable and unrelated to the performance of work duties. In short, in very rare cases. However, a current of thought is developing that, in the view of “to distance oneself from the traditional criterion of the unpredictability of the worker’s behavior” he emphasized the aspect concerning “the activation of an exorbitant risk of the sphere governed by the acting subject”.
What does all this mean?
It is said that the employee’s culpable conduct is abnormal not so much when it is
unpredictable, but when it is such as to activate an eccentric or exorbitant risk from the
sphere of risk governed by the person holding the position of guarantor, namely the employer and the RSPP.
The issue is somewhat related to that of the so-called concretization of risk:
locution intended to mean that protective and preventive measures are taken in order to neutralize the occurrence of a certain, specific risk. Photoelectric barriers to protect presses, for example, are intended to prevent the presence of people in the vicinity of the machinery during its movement, so that any shortcomings in the prevention system are relevant only with regard to those risks and not others (e.g., that of electrocution).
The concept of exorbitant or eccentric risk draws on that of the concretization of the
risk and thus wants to mean that the worker’s culpable conduct, to exclude the
responsibility of other parties and be considered the sole cause of the accident, it must
outside the scope of job duties, it must, in short, be “divorced from the
work procedure to which (the worker) is assigned.”.
In substance, not much changes although the failure to refer to the unpredictability of the injured person’s conduct as the element characterizing the break in causation might suggest greater elasticity of assessment on the part of the judges of merit.
However, the Court recalls that the preventive regulations are dictated to protect the worker from his or her own negligence or carelessness, and that when there are critical weaknesses in the safety system set up by the employer, the negligent conduct of the injured person can never exert exonerating effect on the other guarantors.
First, therefore, one must be in good standing; then the possible relevance of the injured person’s conduct can be assessed.
