When is a product defective? Italian Supreme Court’s guidance and upcoming legislative changes to product liability

Every day we use a wide variety of products, ranging from food, cosmetics and toys to sophisticated vehicles, medical devices and electronics. All of them are intended to improve end-users’ lives, but when defective they can pose serious risks to unsuspecting consumers.

The concepts of ‘defect’ and ‘defective product’ are central to the application of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (Product Liability Directive, PLD)¹. The defectiveness of a product is in fact a basic premise for the manufacturer’s civil liability.

The facts of the case

In judgement no. 29387 issued on 23 October 2023, the Supreme Court addressed a product liability case involving a home lift for disabled people that had stopped in the wrong place. The lift floor was about 20 centimeters out of alignment, but the door opened anyway, and a woman fell when entered the lift.

According to the claimant, the opening of the door was due to a design and manufacturing defect. The Court of first instance found the product free from defects and dismissed the claim, but the Court of Appeal qualified the product as defective and awarded compensation to the claimant.

The notion of defectiveness set out in the Consumer Code

According to article 117 of the Italian Consumer Code, a product is defective when it does not provide the safety one can reasonably expect, taking all circumstances into account, including:

• the way in which the product was distributed;
• the product’s packaging and evident features, and the instructions and warnings provided;
• the product’s reasonably expected use and life cycle; and
• the date on which the product was put into circulation.

Furthermore, a product cannot be considered defective simply because a better one has been marketed at some stage, whilst a product is defective if it does not offer the safety normally offered by other samples from the same range.

The definition provided by the Consumer Code is undoubtedly flexible and is primarily focused on users’ safety expectations.

The judgement: when a product is defective

The Supreme Court clarified that a product cannot be said to be defective, either merely because it is dangerous or because there are better products on the market; Italian law, in fact, does not identify the lack of defects with the harmlessness of the product.

On this issue, the Court ruled that "there may be defective but not dangerous products, just as there may be dangerous but not defective products. Thus, for example, a circular saw designed and sold without protection of the rotating parts is certainly a dangerous product, but not for that reason to be considered defective - just as – an economical car with drum brakes could not be said to be defective merely because its stopping distance is greater than that of a sport car with ceramic brakes”.

Finally, it concluded that a product is defective if it lacks the safety requirements generally demanded by users or other elements which must be assessed by the judge, including the safety standards imposed by industry regulations (in the case at issue technical regulations allow the lift door to open not only at floor level, but also when the lift is slightly higher or lower).

The Supreme Court upheld the appeal brought by the lift manufacturer and sent the case back to the Court of Appeal laying down the principles of law to be followed in the new decision.

The wider notion of defectiveness contained in the Product Liability Directive

On 28 September 2022 the European Commission presented its long-awaited proposal for a revised PLD, which intends to adapt the liability regime to the digital age and the circular economy.

The revised PLD preserves the basic principle of strict liability for defective products which cause harm to consumers, that is the core of the 1985 PLD, but it also makes a number of key changes.

As far as the notion of defect is concerned, the revised PLD provides that “A product shall be considered defective when it does not provide the safety which the public at large is entitled to expect, taking all circumstances into account” (article 6).

While the 1985 PLD referred to the security expectations “which a person in entitled to expect”, the new proposal clarifies that the benchmark for such expectations is not the individual, but “the public at large”.

This clarification is further strengthened by recital no. 22, which confirms that “the assessment of defectiveness should involve an objective analysis and not refer to the safety that any particular person is entitled to expect”.

Furthermore, the revised PLD’s (non-exhaustive) list of circumstances to be considered when establishing defectiveness adds a few aspects to the previous list, including: the effect on the product of any ability to continue to learn after it is placed on the market or put into service; the reasonably foreseeable effect on the product of other products that can be expected to be used together with the product; and any failure of the product to fulfil its purpose of preventing damage.

As pointed out above, the Supreme Court took the view that a circular saw manufactured without protection of the rotating parts is dangerous, but not for that reason defective.

Are we sure that this will still be the case after the entry into force of the revised PLD? Probably not because, as mentioned, the failure of the product to fulfil its purpose of preventing damages will need to be considered.

In conclusion, there is no doubt that the provisions of the revised PLD (or at least some of them) are likely to have a considerable impact on manufacturers and increase the potential for product liability litigation.

¹ In Italy, product liability is governed by Legislative Decree No. 206 of 6 September 2005 (the Consumer Code), which implemented both the EU Product Liability Directive (Directive 85/374/EEC) and the EU General Product Safety Directive (Directive 2001/95/EC).