Guarantee Position and Negligent Omission Crimes: The Supreme Court with Ruling No. 13349/2025 Traces the Boundaries of a Nightclub Manager's Liability

The ruling of the Supreme Court of Cassation, Fourth Criminal Section, No. 13349 of January 22, 2025 (filed April 7, 2025) offers a valuable opportunity to reflect on the guarantee position in negligent omission crimes. The case – the death of an attendee struck by stones dislodged from a rocky slope adjacent to a nightclub – calls into question the duties of the venue manager, who was subject to specific safety requirements by the Provincial Supervisory Commission. Let's see why the Court upheld the conviction, clarifying the application criteria of Article 40, paragraph 2, and Article 589 of the Italian Penal Code.

The Facts and the Supreme Court's Decision

The manager, identified in the records as S. R., had received an order prohibiting the use of the nightclub in case of heavy rain. The prescription was ignored, and a landslide caused the death of a patron. The appellate judge of Salerno convicted the defendant for negligent omission homicide; the Supreme Court rejected the appeal, deeming the determination of his guarantee position regarding public safety to be free from censure.

What is Meant by Guarantee Position

Article 40, paragraph 2, of the Italian Penal Code states that "failure to prevent an event that one has a legal obligation to prevent is equivalent to causing it." Hence the figure of the guarantor: a subject holding the power-duty to prevent the event. The ruling specifies that the guarantee position arises from:

• a formal investiture (legal act or administrative provision);
• the de facto exercise of the guarantor's typical functions;
• the concrete management of the source of danger.

This determination must be conducted "in light of the specific circumstances" of the concrete case, overcoming abstract logic.

In matters of negligent omission crimes, the guarantee position can be generated by formal investiture or by the de facto exercise of the typical functions of the various guarantor roles, and the effective holding of the power-duty of protection of the legal interest, as well as the management of the source of danger, must be ascertained in concrete, in light of the specific circumstances in which the event occurred. (Case in which the Court deemed the decision to be free from censure, which, in relation to the death of a nightclub patron due to falling stones from a rocky slope following rain, had identified the guarantee position, for the protection of public safety, in the venue manager, who was the recipient of the prescriptions from the Provincial Supervisory Commission for public entertainment venues, which prohibited the use of the nightclub under such weather conditions).

Comment: The Court reiterates that the guarantor is not such merely because they are "formally" the holder of an activity, but because they manage its risk. If there is a provision imposing precautions, the violation of that obligation constitutes the causal link of omission: the fatal event is linked to the failure to close the nightclub during the rain. This leads to a clear message for economic operators: ignoring safety regulations entails direct criminal liability.

Practical Implications for Venue Managers and Businesses

The ruling is part of a consistent line of case law (Cass. 19029/2017, 38624/2019, 57937/2018) and reinforces certain best practices:

• Ensure the updating and traceability of risk assessments;
• Cease operations when the prohibitive conditions indicated by the authority occur;
• Train staff on evacuation and closure protocols;
• Monitor external factors (e.g., weather conditions) that may trigger danger.

From a civil law perspective, the violation of the guarantee obligation also opens the door to damages under Article 2043 of the Italian Civil Code, with possible actions by the victim's relatives.

Conclusions

The Supreme Court ruling No. 13349/2025 confirms that the guarantee position is not a theoretical superstructure but a real safeguard for the protection of life and public safety. The manager of an entertainment venue, subject to specific prescriptions, must implement appropriate and timely measures: omission is equivalent to causing the harmful event. This is a lesson that transcends the individual case and concerns any subject who, by law or by fact, controls a source of risk.