The Italian Supreme Court, with its judgment no. 16265 dated 25 September 2012, has held to be liable pursuant to art. 2048 of the Italian Civil Code the parent of a child who took possession of a scooter without the user’s consent and caused injury to others in a road accident (in this case running down a pedestrian)
In this regard, it might be worthwhile recalling the provisions of article 2048 of the Italian Civil Code, according to which the father and mother or guardian are responsible for the damage caused by the unlawful acts committed by non-emancipated minors or persons under guardianship who live with them.
As has been made clear in the past by the Supreme Court, the liability of parents for the torts committed by their children provided for under article 2048 of the Italian Civil Code may concur (in the event that they are capable of discernment) with that of the children themselves, based on article. 2043 of the Civil Code (cfr. Italian Supreme Court judgment no. 8263 dated September 13, 1996)
In any event, article 2048 provides that the persons referred to in the preceding paragraphs are exempted from liability in the event that they can prove that they could not prevent the tortious act from being committed.
The issue of law addressed by the Supreme Court concerned what burden of proof needs to be discharged by the parents in order to prove that they were not liable for the child taking – without their consent – a scooter. In this regard, the Court did nothing other than endorse the position taken by the court of first instance that the apprehension of the scooter itself did not exempt the owner frpm his liability
The second question, which was of a purely procedural nature, concerned the admissibility of the appeal brought by the parent, in a situation in which the child was now an adult. The Court of Appeal held, in this regard, the appeal to be inadmissible on account of the appellant’s lack of locus standi. The parent of the tortfeasor, adduced as a first ground of appeal the fact that the latter, having been convicted on his own pursuant to article 2048 of the Italian Civil Code, was entitled to lodge an appeal on behalf of the child.
The Supreme Court, partially accepting the first plea, held that, the son, who was now an adult, should appear in judgment on his own and that only he could only protect his own position.
The Supreme Court judges declared, in any event, that the appeal was null and void insofar as it had been lodged against a person without locus standi. The injured party who had been a minor at the time the damage was caused, was, however, an adult when the appeal was lodged.
The Supreme Court judges held, therefore, that the appeal should have been lodged by the victim, who was now an adult, and not against his parents,, since one could learn, with due diligence, from the trial documents that the injured party had become an adult.
