E 'often happened to motorcyclists and pedestrians to injury from a fall due to potholes and manholes on the road or pavement serviceable entrusted to the municipalities often leaves to be desired. Who is liable for damages in these cases of so-called road danger and opportunity you have to be compensated?
First we must point out that the government is not liable if the event took place in a private road. In responding to the highway concessionaire of the service required in the maintenance confronti dell'utente che con il passaggio al casello ed il pagamento del pedaggio conclude un vero e proprio contratto con il concessionario.
Per il risarcimento di questi danni, sia fisici che materiali, trovano applicazione gli articoli del codice civile: il 2043 " risarcimento per fatto illecito " e il 2051 " danno da cosa in custodia ".
La Cassazione civile , tra le tante, suggerisco di leggere le sentenze della III sezione n. 15383 del 2006 e la recente n. 390 del 2008 , ritiene che la responsabilità dell'ente proprietario della strada ha carattere oggettivo e per la sua sussistenza is sufficient causal link between the thing in custody, such as road, and the damage done to the person, such as the pedestrian who slips on ice, without giving importance to the conduct of the guardian, the Municipality, and the fulfillment of an obligation supervision. Only if the accident occurs, such as oil on the road lost a few minutes before a bus rider and that because of this fall shortly after, the responsibility of the owner of the road is not included.
The accident is unforeseeable and unavoidable external event, which can also be set up by the fact that one third of the same or damaged.
When Article shall not apply. 2051 provides that "each person is responsible the damage caused by things in his keeping, unless they prove that the accident " practical impossibility for the sake of preserving state property in its entirety, the courts have recourse to Article. 2043" fact any fault or negligence that causes others from harm, requires the person who committed the act to compensate the damage ", to which the public body liable for damages from those assets according to the general rule of neminem laedere and constituted one of its wrongful conduct.
The victim must prove the elements of fact at fault or negligence that caused the damage, the causal link, the harm suffered and the subjective culpability institution owner of the road while the latter has the burden of proving contributory negligence or the pedestrian or the presence of the accident in order to escape from responsibility.
must be established that hidden danger to road users open to the public, the so-called trap or pitfall, characterized, according to the case of a objective element the "invisibility" , and a subjective element, the "unpredictability" . It
the injured prove the existence of two elements, for example, that the hole was hidden by leaves or other debris or the weather conditions that prevented them from visibility and that this pitfall was not foreseeable to him. The fall due to a hole created by a number of days on the sidewalk that runs regularly to and from work would not have the requirement of unpredictability.
The injured party in the use of the property owned by the State should have used ordinary care without contributing to the occurrence of a damaging event, such as when the driver of a moped ruined land for a sewer, with the time embedded in the pavement, which circulated in the late evening without headlights could constitute a common responsibility.
Based on experience to those who would suggest run into these misadventures to request the immediate intervention of the municipal police, traffic police or the police on the spot and point out the road conditions and report that the immediacy of the existence of the pit or manhole constituting the trap or pitfall , if possible shoot some photos of the places before they are restored by the City and / or companies responsible for the maintenance and guard of witnesses who have attended the event harmful. These precautions will be able to take greater chances of success with the procedure for compensation for damages against the government's start with the formal request for compensation by registered letter enclosing just available copy of the minutes of the particulars.
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