In terms of civil liability, however, the restaurateur can only defend himself by proving “fortuitous event.” A recent ruling by the United Sections of the Italian Supreme Court22 affirmed that the fortuitous event consists of a natural fact either of the injured party or of a third party, characterized by objective unpredictability and inevitability. It is not sufficient, in order to exclude liability, the proof of diligence by the person called upon to compensate for the damage. Therefore, it is not sufficient, for the restaurateur called to answer for the damage caused to the customer intoxicated by food, to prove that he took all precautions and complied with all rules of conduct for the proper preservation of food. However, the restaurateur may exclude his liability by proving the liability of the producer of the food from which the restaurant has been supplied. This kind of liability (the producer liability) can exclude the restaurant owner’s liability, especially for so-called “ready-to-eat” products. In this case, it is possible for the restaurateur, sued to compensate for the damage suffered by the customer, to prove its lack of liability, which will fall entirely on the supplier of the product, subject to the suing of this third party. A ruling by the Rome Court of Appeals 23 addressed and decided this hypothesis, starting with the “Salmonella” bacteria poisoning of some customers of a restaurant owner who had been fed “porchetta,” a typical Roman dish of boneless, spiced and cooked pork. Customers had sued the restaurant, but the restaurateur had sued the producing food company, because he purchased this product ready-to-eat. The Court framed the claim as an action brought by the customer-consumer for damages for defective product. In this case, according to the Court of Appeals, must be applied the rules of the Italian Consumer Code, a rule derived from the European Union24. The regulation of producer liability for defective products provides for strict and specific disclaimers governed by Article 118 of the Italian Consumer Code25. 22 In the Italian system, the decisions of the United Sections of the Corte di Cassazione have the function of ensuring the exact observance and uniform interpretation of the law and thus the unity of the national objective law. The decision of the United Sections under comment here is n. 20943/2022. 23 Appeals Court of Rome, Section V, Ruling n. 4859/2021. 24 The Italian Consumer Code is Legislative Decree No 206/2005, and brings together the main consumer protection regulations adopted in implementation of European legislation, https://www.mimit.gov.it/it/mercato-e-consumatori/tutela-del-consumatore/codice-del-consumo 25 According to Art. 118 of the Consumer Code, the producer’s liability is excluded (a) if the producer did not put the product into circulation; (b) if the defect that caused the damage did not exist when the producer put the product into circulation; (c) if the producer did not manufacture the product for sale or for any other form of distribution for consideration, nor did he manufacture or distribute it in the exercise of his professional activity; (d) if the defect is due to the product’s compliance with a mandatory legal norm or binding measure (e) if the state of scientific and
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