Quite often, the injury party is not complying with the rules governing the burden of proof in actions to seek compensation for a defective product. Here are the common mistakes.

When a vehicle catches fire, regardless of whether it is in motion or parked, the producer of the vehicle is often sued. Whenever the damaged party is a consumer, the provisions contained in the Legislative Decree n. 206 of September the 6th 2005 shall apply; conversely, if the damaged party is a business operator (b2b transaction), the rules in the Italian Civil Code will apply. Specifically, the rules on extra-contractual liability (art. 2043 c.c.).

Regardless of which set of rules is applicable, the burden of proof always lies on the damaged party: the latter will have to prove the existence of the defect, the damage suffered, as well as the causal link between the first and the second element (see art. 120 of the Consumers protection Code). Nevertheless, it is important to remember that while liability for faulty products is presumed, it is not a case of strict liability: it is not necessary to prove that the producer incurred in any kind of negligence; nonetheless, it is demanded to prove the actual existence of the defect. Therefore, the damaged party will have to bring evidence of the defect and its causal link with the damaged caused, it is not sufficient to prove the link between damage and the product itself. On the other hand, the producer has the right to prove otherwise; namely to bring evidence of the fact that the defect did not exist at the moment in which the product was commercialized (see Court of Cassation, section III, April the 7th 2022, n. 11317 in Giustizia Civile Massimario 2022).

The damaged party often resorts to the report of the firemen to prove the defect, who sometimes provide a technical evaluation of the facts that they witnessed. However, sometimes they even include technical explanations (sometimes quite bizarre ones) on the alleged causes of the fire. Thus, the firemen's report represents the main evidence on which the damaged party relies to prove the producer's liability.

Nonetheless, the Italian Supreme Court stated that the firemen's report is highly reliable with respect to the facts that happened under their direct watch and regarding their operations; however, the report does not have such reliability when assessing the causes of the fire (Court of Cassation, section II of November the 17th 2017, n. 27314 in Diritto & Giustizia 2017; similarly: Nola Court of First Instance, section I of January the 20th 2021, n. 125; Court of Cassation, section III of May the 5th 2021, n. 12225 in Responsabilità Civile e Previdenza, 20121, 6, 1095).

As far as the damage is concerned, the vehicle often is destroyed by the fire or in any case becomes useless and must be scrapped. Therefore, the damaged party will probably request payment of the value of the vehicle at the time of the burning.

On the contrary, when the consumer only invokes the provisions of the Consumer Code, the producer may successfully raise exceptions under art. 123 of the same Code, which limits the compensation to damages such as death and physical injuries and damages such as destruction or deterioration of goods other than the faulty product.

If the vehicle is not destroyed and can be repaired, the damaged party often seeks compensation for the repairment costs and the time during which the vehicle has been useless. In such case the damaged party may also request damages for loss of profit (as long as the product is used for business purposes); the damages that may also be lamented can be the costs for renting a vehicle in substitution.

On this specific topic as well, the Supreme Court has issued some clarifications: the damages for the lack of usability of the product are not to be deemed as automatically existing, they must be proven. In fact, such damage is not proven by the mere uselessness of the vehicle, it is instead necessary to provide evidence of additional costs deriving from the rental of a replacement vehicle or the loss of profits caused by the impossibility to use it, provided that the vehicle was a necessary tool to generate income (see Court of Cassation, section VI of February the 28th 2020, n. 5447 in Giustizia Civile Massimario 2020; similarly: Court of Cassation, section III of April the 4th 2019, n. 9348 in Diritto e Giustizia 2019, 5, April).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.