Custodian Liability: Commentary on Judgment No. 51452 of 2023

Judgment No. 51452 of September 12, 2023, issued by the Court of Cassation, represents an important ruling on civil liability, particularly concerning the role of a custodian of property. In this case, the owner of an agriturismo was held liable for the involuntary manslaughter of a customer who fell due to the collapse of a fence in an area. The Court established that the user of a property, even if not the owner, can be held liable for damages caused by their negligence.

The Custodian's Duty of Care

The Court applied the principle of "duty of care" contained in Article 40, paragraph two, of the Penal Code, which states that whoever uses a property is considered its custodian and, therefore, has the obligation to prevent harmful events. This means that the custodian must report risks associated with the use of the property, acting with the diligence required by the situation. In this specific case, the custodian has the obligation to maintain the area safely and to inform users of any dangers.

Duty of Care - Existence - Source - Custody of the Area - Use "uti dominus" - Sufficiency - Factual Circumstance. In terms of liability for fault, the user "uti dominus" of a property holds, as its custodian, a duty of care under Article 40, paragraph two, of the Penal Code, even if they are not the owner. (In application of this principle, the Court annulled the acquittal decision for involuntary manslaughter of the owner of an agriturismo, who was charged with the fall of a customer caused by the collapse of a fence in an area, on the grounds that the custodian is required to report dangers related to its use, due to proximity to the source of danger).

Implications of the Judgment

The decision of the Court of Cassation has significant implications for owners of commercial activities and for those who manage property belonging to others. It emphasizes that liability is not limited solely to the owner of the property but extends to anyone who uses it. It is therefore crucial for custodians to implement adequate preventive measures and inform customers about risks. Below are some practical considerations:

• Periodic verification of the condition of the property and areas in use.
• Clear reporting of any existing dangers or risks.
• Staff training to ensure user safety.

Conclusions

Judgment No. 51452 of 2023 represents a step forward in defining civil liability in criminal matters. It clarifies that custodianship entails specific obligations of prevention and information to reduce risks for users. Owners of commercial activities must therefore be aware of their responsibilities and adopt all necessary measures to ensure the safety of their customers.