Exposed - warning for the assessment of civil liability, criminal and administrative-accounting of the Public Administration in relation to the serious and persistent instability of the urban and extra-urban road surface, resulting in harm to public safety, the integrity of citizens' assets and the treasury
by the lawyer. Riccardo Vizzino
The serious and persistent instability of the road surface, now widespread in an urban area - and in particular in the city of Naples - it can no longer be classified as an episodic or contingent phenomenon, but it must be recognized as such structural criticality, direct consequence of a prolonged and systematic lack of maintenance activities by the competent bodies.
This is a condition that can no longer be confined to the confines of urban discomfort or mere administrative inefficiency, but which is now taking the form of a systemic phenomenon, stable and reiterated, suitable to directly affect the traffic safety, on the safety of users e, more generally, on the very stability of the fiduciary relationship between citizen and administration.
The city streets, far from guaranteeing ordinary and safe use, they appear in many areas as seriously compromised surfaces, dotted with potholes, depressions, sagging, deformations of the road surface, failures of the manhole covers and, not infrequently, real structural collapses also attributable to the deterioration of the underlying infrastructures.
Well, the episodes that have occurred in recent years - frequently aggravated by meteoric events that have caused sinkholes, flooding and subsidence – cannot be traced back, as sometimes claimed, to chance or unpredictability, but rather they find their cause or, at least, a decisive contributing factor in the pre-existing state of degradation of the road infrastructure, clear expression of inadequate maintenance management, if not completely lacking.
The regulatory framework, on point, it is absolutely clear and does not allow room for interpretation.
Already the art. 28 of Annex F to the law 20 March 1865 n. 2248 established the obligation to maintain the roads in a "normal state"; he R.D.. 15 November 1923 n. 2056 attributed the ordinary and extraordinary maintenance of the roads under their jurisdiction to the Municipalities; Today, these principles are fully systematized in the Legislative Decree. 30 April 1992 n. 285 (Traffic Laws), whose art. 14 requires the owner bodies to provide maintenance, management and technical control of roads, as well as ensuring the safety and fluidity of traffic.
This system is accompanied by the provisions of the art. 2051 c.c., which constitutes a custodial responsibility on the part of the entity, with reversal of the evidentiary burden.
As constantly reiterated by the jurisprudence of legitimacy - among others, Cass. civ., sez. III, 12 April 2013 n. 8935; Cass. n. 18753/2017; Cass. n. 11526/2017; Cass. n. 7805/2017; Cass. n. 1677/2016; Cass. n. 9547/2015; Cass. n. 1896/2015 – the body that owns the road is liable for damages resulting from dangerous situations connected to its structure, unless it demonstrates the existence of an external factor, unpredictable and inevitable.
Try that, in the context described here, appears difficult to configure, given that the instability of the road surface is not only predictable, but it is stable, reiterated and often reported by citizens themselves.
The consequences of this state of abandonment manifest themselves daily in concrete and repeated damage also to vehicles.
But what is most notable is the risk to the personal safety of users, aggravated by the fact that very often the dangers present on the road surface are hidden, making the harmful event not only possible, but highly probable.
He can't, indeed, it is not clear how the situation described directly affects primary legal assets, such as life and personal safety, protected by the articles. 2 e 32 of the Constitution, resulting in daily exposure, generalized and not permitted in situations of concrete danger.
The persistent presence of road hazards, not adequately eliminated or promptly reported, translates into one unacceptable compression of the right to personal security, which the legal system recognizes as a fundamental and indefectible value, not susceptible to being sacrificed on the altar of organizational or budgetary needs of the Public Administration.
In this context, the citizen suffers a double prejudice.
On the one hand, is forced to support i direct costs resulting from damage to your vehicles; on the other, undergoes a indirect economic burden through the insurance system, given that premiums in metropolitan areas with high accident rates are significantly higher, also due to the infrastructural conditions.
The damage, However, it does not end in the individual dimension, but it extends significantly to the public sphere.
The maintenance inertia of the institution determines, Indeed, a clear waste of resources: on the one hand, the increase in compensation requests and related disbursements; on the other, the need for extraordinary interventions that are much more costly than those that would have been sufficient preventively.
In this perspective, a possibility clearly emerges treasury damage, consisted not only in the payment of compensation, but also in inefficient management, irrational and uneconomical of public assets.
This conduct is in clear contrast with the principles of good conduct, economy and efficiency enshrined in the art. 97 Cost., e requires a careful evaluation in terms of administrative-accounting responsibility before the Court of Auditors.
Added to this are further elements of particular gravity.
Turns out, Indeed, that the institution has not guaranteed one over the years adequate planning of maintenance interventions, intervening mainly on an emergency basis and not through structured and continuous management.
Equally relevant is the circumstance of lack of or insufficient insurance coverage for civil liability towards third parties, with seriously detrimental consequences for citizens who, despite favorable rulings, encounter considerable difficulties in obtaining payment of what is owed to them.
On this point, the reference to the jurisprudence of the European Court of Human Rights appears decisive (De Luca v. Italy and Pennino v. Italia, 24 September 2013), according to which the state of financial distress of an entity cannot justify the non-execution of judicial decisions, since local authorities are components of the State and the latter must guarantee the effectiveness of jurisdictional protection.
From a criminal point of view, Furthermore, the omissive conduct can integrate the extremes of responsibility pursuant to articles. 40 e 41 c.p., as well as the art. 328 c.p., in case of failure to respond to citizens' reports, as clarified by the jurisprudence of legitimacy (Cass. pen., sez. VI, n. 42610/2015 ).
In this context, the position of the institution is necessarily also expressed in terms of personal responsibility of the apical bodies, and in particular the Mayor, which, pursuant to Legislative Decree. 18 August 2000 n. 267, plays the role of local government authority with specific skills in urban safety and protection of public safety.
Configurability follows, at the head of the same, of a position of guarantee with respect to the prevention of harmful events deriving from the poor state of road infrastructures, with consequent application of the provisions of the art. 40, comma 2, c.p., according to which "not preventing an event that one has a legal obligation to prevent is equivalent to causing it".
Therefore, failure to adopt the necessary maintenance measures, as well as the failure to activate timely interventions in the face of known or knowable dangerous situations, can integrate, in concrete cases, hypothesis of criminal liability for the harmful events that occurred, as the generic reference to lack of resources or organizational difficulties cannot assume exempt importance.
The reiteration over time of the described conditions of instability, together with their full knowledge by the administration, appears, Indeed, suitable for configuring profiles of gross negligence, if not even conscious inertia, relevant for the purposes of ascertaining personal responsibilities.
In light of the above, the phenomenon of road instability reveals itself as a symptomatic index of a wider and more serious administrative inefficiency, characterized by profiles of serious negligence and, in some cases, by a real conscious inertia, suitable to generate responsibility from a civil perspective, criminal and administrative-accounting.
Under a distinct and autonomous profile, the described conditions of the road surface take on decisive importance for the purposes of ascertaining the civil liability of the body that owns or manages the road, with consequent damage to perfect subjective rights of the damaged users.
In particular, the case in question falls fully within the scope of application of the art. 2051 c.c., the public road being configured as an asset in the custody of the local authority, with consequent strict liability for the damage caused by the related conditions of degradation, unless proven by fortuitous circumstances, as constantly affirmed by the jurisprudence of legitimacy.
In this context, the instability of the road surface does not represent a mere disservice, but a direct source, current and systematic liability for compensation, suitable for establishing credit claims for citizens who have suffered damage to their person or property.
The damage that can be found assumes, moreover, structural character and manifest themselves, by way of example but not exhaustively, under multiple profiles.
On the level of material damage to vehicles, the conditions of the road surface frequently cause punctures or tire bursts, often accompanied by deformation or breakage of the rims; damage to the suspensions and shock absorbers, as well as mechanical arms and bushings; the alteration of the alignment and convergence of the wheels, resulting in vehicle instability and abnormal tire wear; deterioration of steering components; as well as damage to the bodywork and underbody, including the oil pan and lower parts of the vehicle.
Such prejudices, far from being occasional, determine a significant and constant economic burden for road users, forced to incur maintenance and repair costs which are directly and exclusively caused by the state of instability of the road network.
From the perspective of damage to the person, this risk, already highlighted, exposes users to a real danger.
It follows that the conditions described constitute a real road hazard, suitable to establish compensation liability of the entity even in the absence of imprudent conduct on the part of the user, except for the rigorous verification of fortuitous circumstances.
In this perspective, it is clear that the situation constitutes a widespread lesion
Under a further and competing profile, it is necessary to highlight how the instability of the road surface takes on importance not only as an independent cause of damage, but also as an efficient contributory cause in the production of road accidents formally attributable to the conduct of other road users.
In numerous cases, Indeed, the harmful event is part of a complex dynamic, in which the conduct of the driver of the vehicle and the objectively unsafe conditions of the road surface combine, according to the paradigm of material causality, upon verification of the accident.
In such cases, in light of the consolidated principles on the subject of causal link and contributory causes - according to the criterion of "more probable than not", as reiterated by the jurisprudence of legitimacy - the road maintenance defect must be considered as a causally relevant factor whenever it has contributed, even to a non-exclusive extent, to the production of the event.
It follows that the responsibility of the body that owns or manages the road is in a competitive relationship with that of the driver of the vehicle involved, pursuant to the articles. 2051 e 2054 c.c., determining a case of joint and several liability pursuant to art. 2055 c.c. among the various subjects obliged to pay compensation.
In this context, the injured party will be entitled to take action indifferently against the insurance company of the responsible vehicle and the body that owns the road, being able to claim full compensation for the damage even from just one of the co-obligors, saves the subsequent internal division of responsibilities.
The mechanism outlined is fully consistent with the principles established by the jurisprudence of legitimacy regarding shared responsibility between multiple perpetrators of the illicit act, according to which, in the presence of a plurality of causally relevant conduct, each person responsible is fully liable to the injured party, the graduation of the respective faults remaining confined to the internal relationships between co-obligors.
It follows that, in the event that the accident has been compensated by the vehicle insurance, the latter will be able to exercise a right of recourse against the body that owns the road, or call him into question in the same judgment, in order to obtain the assessment of concurrent responsibility and the consequent distribution of the compensation burden.
In other and clearer terms, the instability of the road surface cannot be relegated to a mere context element, but it must be qualified as a contributing causal factor, suitable to establish an autonomous responsibility of the public body, capable of being asserted either directly by the injured party, is in the process of being repaid by insurance companies.
Can't do it, so, which is a significant share of the urban accident rate, improperly attributed to the conduct of the drivers alone, is actually causally traceable, in whole or in part, to the state of instability of the road surface.
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In light of the above, it must be considered that the administration's persistent inertia, if not immediately removed, will only lead to the initiation of a serial compensation action, already in the structuring phase, aimed at the coordinated protection of the rights of damaged citizens, through the proposition of a plurality of initiatives, resulting in emergence, even in litigation, of the civil liability of the organization for damages deriving from the instability of the road surface.
This initiative will be aimed at obtaining full compensation for all damages suffered - financial and non-economic - including material damage to vehicles, personal injury, as well as any further item of damage causally attributable to the state of instability of the road surface, and will be part of a broader protection process aimed at guaranteeing the effectiveness of citizens' rights also through coordinated and reiterated action tools.
All this being said, it is intended to formally warn and request the competent authorities:
-to ascertain the responsibilities of the bodies that own and manage road infrastructures;
-to identify any personal responsibilities of directors, managers and competent officials;
-to urgently adopt a structural plan, organic and continuous maintenance of state-owned roads;
-to prepare adequate financial instruments suitable to guarantee the timely payment of credits granted to citizens.
With specific reference to the administrative-accounting responsibility profiles, we ask from now on that the Regional Prosecutor's Office of the Court of Auditors will:
– arrange for any appropriate preliminary investigation aimed at ascertaining the existence of fiscal damage resulting from the failure, insufficient or inadequate maintenance of road assets;
– verify whether the disbursements incurred by the entity as compensation for damages, as well as the increased costs deriving from extraordinary interventions made necessary due to the failure to carry out routine maintenance, constitute a direct consequence of grossly negligent or uneconomic management;
– ascertain any omissions, characterized by gross negligence or willful misconduct, implemented by administrators, managers and officials responsible for maintenance services and resource planning;
– evaluate the existence of damage due to poor service and/or inefficient management of public assets, with particular reference to the failure to plan maintenance interventions and the emergency management of critical issues;
– exercise, if the conditions are met, administrative liability action against those held responsible, pursuant to current legislation;
– adopt any further initiative deemed appropriate for the protection of the treasury and the correct use of public resources.
It represents itself, also, that the continuation of the described conditions of instability, together with the institution's repeated inertia, appears suitable to integrate more than a mere administrative dysfunction, but rather a real hypothesis of bad management of public affairs, resulting in damage to both the interests of citizens and the integrity of public finances, as well as a direct source of civil liability for compensation on the part of the entity, likely to give rise to a plurality of judicial actions.
In the absence of immediate and concrete interventions, as of now, every most appropriate initiative is being announced in the competent offices, including accounting and supranational ones, to protect the rights of injured citizens.
REPORTS AND COLLECTION OF CONTRIBUTIONS
Citizens who have suffered damage or who intend to report similar situations are invited to contribute to the documentation of the phenomenon in the terms indicated below.
👉 Sending reports and testimonials
It is possible to transmit documented contributions relating to:
– damage suffered to vehicles;
– accidents attributable to the conditions of the road surface;
– situations of persistent danger or those already reported to the competent bodies;
– critical issues encountered in compensation procedures.
📩 Reports can be sent to the following email address:
riccardodenuncia@gmail.com
The contributions collected will be used for the purposes of reconnaissance of the phenomenon, the evaluation of liability profiles and the possible promotion of initiatives to protect damaged citizens.
