The Principle of "Ex Ante" Foreseeability in General Negligence: Commentary on Cass. pen. no. 9906/2024
Judgment no. 9906, filed on March 11, 2025, by the Sixth Criminal Section of the Court of Cassation, once again addresses the crucial issue in cases of culpable liability: the foreseeability of the event according to an "ex ante" assessment. The occasion is the partial annulment with referral of a decision by the Court of Appeal of L'Aquila, rendered against F. P. The ruling is part of a jurisprudential path of now twenty years that defines the boundary between the ordinary diligence required of the agent and the area of unforeseeable risk, relevant for general negligence.
The Core of the Decision: Foreseeability and Scientific Knowledge
The Cassation's core reasoning lies in clarifying that the foreseeability of a negligent event does not coincide with the mere abstract possibility of a fact that has already occurred in the past, but rather requires the ascertainment of a "statistically relevant probability." This parameter, the Court emphasizes, must be reconstructed in light of the technical-scientific knowledge available at the time of the conduct, in accordance with Articles 40 and 43 of the Italian Criminal Code.
In matters of general negligence, the judgment of foreseeability, to be made with an "ex ante" assessment, does not consist in the possibilities of predicting a type of event that, having occurred in the past, is susceptible to naturalistic replication, but postulates that such an event has a statistically relevant probability of occurring, for which reference to scientific knowledge in the domains involved is essential.
In other words, negligence is constituted only when the agent, acting with negligence, imprudence, or lack of skill, fails to consider a risk that scientific evidence made concretely probable. The idea, which has sometimes emerged in the past, of liability based on merely conjectural foreseeability is thus overcome.
Jurisprudential Evolution: From the United Sections of 2002 to Today
The Court refers to a mosaic of precedents – from the United Sections no. 30328/2002 to judgments nos. 58349/2018, 16029/2019, and 35016/2024 – which have progressively refined the parameter of "id quod plerumque accidit" (what usually happens) according to probabilistic criteria.
- 2002, United Sections "Franzese": the probabilistic-causal method is introduced into the causal link.
- 2010-2021: the centrality of scientific guidelines is consolidated (Rv. 247016-01; Rv. 281997-17).
- 2018-2024: the criterion of "statistical relevance" emerges as a tool for objective delimitation of foreseeable risk.
The judgment under review synthesizes these findings, highlighting how the "ex ante" verification must be anchored to knowledge accessible to the average diligent agent, avoiding both the hindsight bias and excessive probabilistic formalism that would strip negligence of its preventive effect.
Practical Implications for Operators and Defense Counsel
The ruling is particularly relevant for the medical-health, construction, and industrial sectors, where risk must be assessed according to guidelines and best practices. For defense counsel, it becomes strategic to obtain expert reports attesting to the actual knowability of the risk at the time of the event. On the corporate side, it is essential to adopt organizational models that integrate continuous updating of technical knowledge.
Conclusions
With judgment no. 9906/2024, the Cassation reiterates that general negligence presupposes an event that is not only abstractly imaginable but concretely probable according to scientific data available before the conduct. The principle strengthens the preventive function of criminal law: it does not sanction the unforeseeable, but the failure to consider statistically relevant risks. An indispensable compass for professionals, companies, and jurists operating in highly technical contexts.
