Manslaughter with violation of accident prevention regulations: in the presence of very serious organizational deficiencies, delegations do not save the board of directors.
The Fourth Section of the Court of Cassation, with sentence no. 40682 filed on 6.11.2024, was called to deal with a fatal accident that occurred to a worker engaged in the construction of a water containment tank, overwhelmed by a reinforced concrete slab that overturned due to very serious errors that occurred during the production and installation phase of the same.
The judges of merit had noted that the accident that occurred at the construction site was the result of macroscopic organizational shortcomings directly attributable to the top management of the company producing the product which, it emerged, operated by omitting the necessary checks of the actual technical suitability of the prefabricated buildings. Furthermore, the investigation had made it possible to ascertain the existence of a real company practice, aimed at giving precedence to the punctuality of delivery times over the quality of the finished product, according to which the checks of the technical specifications of the products – necessary to avoid the risk of overturning – were deliberately omitted.
On these grounds, the territorial Court had deemed it necessary to confirm the sentence issued by the first instance judges against the top management of the company producing the prefabricated buildings, regardless of the roles they held and the delegations granted in matters of health and safety of workers.
However, the defense lawyers complain that this conviction is based on the recognition of substantial responsibility from a position deriving from the defendants being respectively president and members of the board of directors of the company.
The Court of Cassation, hearing the appeal, usefully re-analysed the recent “Rinaldi” ruling (Cass. Pen., Sez. IV, ruling no. 4476/2022) which, on the subject of management delegations and functions, provides an extremely clear and timely picture of the differences existing between the two institutions (ruling already commented on this blog, in “Management delegation and safety delegation. Finally some clarity from the Supreme Court” of 03.15.2023), and observed that, in fact, the principle of law expressed by the territorial court, according to which the obligations inherent to the prevention of accidents at work would fall on all members of the Board of Directors, cannot be applied in the case in question due to the existence of a specific system of delegations.
However, the Court observes, although we are dealing with management delegations pursuant to art. 2381 of the Civil Code and functions pursuant to art. 16 of the Legislative Decree. 81/2008 all validly conferred, it cannot be ignored that the event in question was the result of a “total lack of effective proceduralization of the production activity as a company policy aimed at subordinating the needs of safety to profit”. In this situation, even in the presence of management delegations, the board of directors still has a duty to supervise the progress of management and an obligation to intervene in a substitute capacity or, with regard to the delegation of functions provided for by the Legislative Decree. 81/2008, a general duty of control and supervision.
Recalling a precedent of jurisprudence of the same section, the “Vascellari” sentence n. 4969/2014, the Supreme Court judges reiterated that the existence of a system of validly conferred delegations cannot, in itself, be considered sufficient to exclude liability profiles on the part of the delegating management body, since “in terms of identifying criminal liability within complex structures, the delegation of functions excludes the attribution of harmful events to the delegators only if such events are the result of occasional malfunctions, while, in the case where they are determined by structural defects in the company or in the production process, the liability of the company’s top management remains“.
