Civil Cassation, sez. III, Case No. 20351 09/28/2010
If following a traffic accident, the victim complaints and requests the award of damages for loss of chance, or by loss of future earning capacity, to this end must provide proof of the existence of objective circumstances in inferred terms of certainty or high probability and not mere potentiality, the existence of an economically assessable damage.
Supreme Court
SECTION III CIVIL
Judgement of 7 July to 28 September 2010, No 20351
(President Varrone - Rapporteur D'Amico)
Conduct of case
GDP and ML, as legal representatives of minor children A. sued before the Court of Modena, AM, and the insurance company Phenix-Soleil spa, spa hours Gan Italy, for a declaration of the exclusive responsibility of the same defendant in respect of road accident in which the child had been hit by 'Car of the M..
It was the insurance company challenging the application of the DP and was declared default of AM that was then demand counterclaim.
The Court stated that the incident had occurred because the extent of the plaintiff and the defendant 70% at 30% and then ordered the Phenix Soleil to pay damages in favor of the plaintiff; partially upheld the counterclaim GDP and ML ordered to pay damages in favor of AM.
ADP appealed claiming that the responsibility for the accident which had been the victim were attributed exclusively to AM and the Phenix Soleil was ordered to pay him an additional $ L. 136,819,459. It constituted the
appealed, contending that the DP was declared solely responsible for the accident and required to return the sum of L. 21,363,000 accessories as well, paid by the insurance company running the decision at first instance and, in favor of the counterclaim of M., was sentenced to full compensation.
The Court of Appeal of Bologna confirmed the attribution of responsibility to the parties as determined by the Court, rejected new claim inadmissible because in the second degree of the appellant to obtain the award of pecuniary damage to permanent disability because it does not specifically request at first instance and excluded the 10% reduction by way of difference between physical life and working life; declared inadmissible the counterclaim M.; confirmed What the Court of First Instance's assessment of the incident and the exclusion of non-pecuniary damage.
appealed to the Supreme DP.
This Court recognized in him the moral and financial damage and referred the case to the Court of Appeal of Bologna.
DP summed up the process towards the Gan Italy SpA (formerly Phenix Soleil spa) and AM. It was only the insurance company.
District Court, saying in the court by the Supreme Court (Case No 3625/97) on the appeal brought by ADP against the ruling of 03.09.1990 No 349, the Court of Modena, Italy spa Gan ordered the Appellant to pay the half of the additional costs.
appealed to the Supreme Court ADP making two remedies. Reasons for Decision
With the two appeals, must be considered together attesane the intrinsic connection, the appellant respectively complaint: 1) "Failure, inadequate and contradictory reasoning on the point and decisive issue of damages for loss of capital ability to work and demonstrate the same in the case of serious mental and physical impairment reported by a child of compulsory school age, and thus pre-processed (Article 360, first paragraph n. 5 c.p.c.)»; 2) «Violazione e falsa applicazione dell’art. 32 Cost., 1223, 1226, 2043, 2056, 2727 e 2729 c.c. (art. 360 primo comma, n. 1 c.p.c.)».
Parte ricorrente critica l’impugnata sentenza sia perché ha negato la perdita della sua futura, specifica capacità di guadagno; sia perché ha fatto propria la c.t.u., ritenuta insoddisfacente; sia perché ha negato che lo stesso A. D. P. sia rimasto pregiudicato nelle sue chances future. Per altro verso critica la suddetta sentenza per aver violato il diritto alla tutela della salute della vittima e al risarcimento dei danni.
Entrambi i motivi sono infondati.
Ha infatti accertato l’impugnata sentenza, sulla Stock of the CTU, the victim began his work at the age of sixteen years who is currently eligible to work, holding a job applicant with a degree of specialization and good manual dexterity, which does not present results with disabilities in relation to its current capacity for work, which has suffered or will suffer a loss of future earning capacity specification.
Those findings relating to the merits of the decision shall not be fettered in the critical legal, there is a reasonable justification, albeit brief, but not immune from legal or logical flaws.
regard in particular to the alleged loss of opportunity it should be noted that because this loss was not recognized because it was proof of the existence of objective circumstances inferred in terms of certainty or high probability and not mere potentiality, the existence of an economically assessable damage ( Cass., 11.05.2010, No. 11353; Cass., 19.2.2009, n. 4052).
In conclusion, the application must be rejected as the peculiarities of the case and trial of the events lead to offsetting the costs of the process of appeal.
PQM
The Court rejects the appeal and order that the costs of the process di cassazione.
If following a traffic accident, the victim complaints and requests the award of damages for loss of chance, or by loss of future earning capacity, to this end must provide proof of the existence of objective circumstances in inferred terms of certainty or high probability and not mere potentiality, the existence of an economically assessable damage.
Supreme Court
SECTION III CIVIL
Judgement of 7 July to 28 September 2010, No 20351
(President Varrone - Rapporteur D'Amico)
Conduct of case
GDP and ML, as legal representatives of minor children A. sued before the Court of Modena, AM, and the insurance company Phenix-Soleil spa, spa hours Gan Italy, for a declaration of the exclusive responsibility of the same defendant in respect of road accident in which the child had been hit by 'Car of the M..
It was the insurance company challenging the application of the DP and was declared default of AM that was then demand counterclaim.
The Court stated that the incident had occurred because the extent of the plaintiff and the defendant 70% at 30% and then ordered the Phenix Soleil to pay damages in favor of the plaintiff; partially upheld the counterclaim GDP and ML ordered to pay damages in favor of AM.
ADP appealed claiming that the responsibility for the accident which had been the victim were attributed exclusively to AM and the Phenix Soleil was ordered to pay him an additional $ L. 136,819,459. It constituted the
appealed, contending that the DP was declared solely responsible for the accident and required to return the sum of L. 21,363,000 accessories as well, paid by the insurance company running the decision at first instance and, in favor of the counterclaim of M., was sentenced to full compensation.
The Court of Appeal of Bologna confirmed the attribution of responsibility to the parties as determined by the Court, rejected new claim inadmissible because in the second degree of the appellant to obtain the award of pecuniary damage to permanent disability because it does not specifically request at first instance and excluded the 10% reduction by way of difference between physical life and working life; declared inadmissible the counterclaim M.; confirmed What the Court of First Instance's assessment of the incident and the exclusion of non-pecuniary damage.
appealed to the Supreme DP.
This Court recognized in him the moral and financial damage and referred the case to the Court of Appeal of Bologna.
DP summed up the process towards the Gan Italy SpA (formerly Phenix Soleil spa) and AM. It was only the insurance company.
District Court, saying in the court by the Supreme Court (Case No 3625/97) on the appeal brought by ADP against the ruling of 03.09.1990 No 349, the Court of Modena, Italy spa Gan ordered the Appellant to pay the half of the additional costs.
appealed to the Supreme Court ADP making two remedies. Reasons for Decision
With the two appeals, must be considered together attesane the intrinsic connection, the appellant respectively complaint: 1) "Failure, inadequate and contradictory reasoning on the point and decisive issue of damages for loss of capital ability to work and demonstrate the same in the case of serious mental and physical impairment reported by a child of compulsory school age, and thus pre-processed (Article 360, first paragraph n. 5 c.p.c.)»; 2) «Violazione e falsa applicazione dell’art. 32 Cost., 1223, 1226, 2043, 2056, 2727 e 2729 c.c. (art. 360 primo comma, n. 1 c.p.c.)».
Parte ricorrente critica l’impugnata sentenza sia perché ha negato la perdita della sua futura, specifica capacità di guadagno; sia perché ha fatto propria la c.t.u., ritenuta insoddisfacente; sia perché ha negato che lo stesso A. D. P. sia rimasto pregiudicato nelle sue chances future. Per altro verso critica la suddetta sentenza per aver violato il diritto alla tutela della salute della vittima e al risarcimento dei danni.
Entrambi i motivi sono infondati.
Ha infatti accertato l’impugnata sentenza, sulla Stock of the CTU, the victim began his work at the age of sixteen years who is currently eligible to work, holding a job applicant with a degree of specialization and good manual dexterity, which does not present results with disabilities in relation to its current capacity for work, which has suffered or will suffer a loss of future earning capacity specification.
Those findings relating to the merits of the decision shall not be fettered in the critical legal, there is a reasonable justification, albeit brief, but not immune from legal or logical flaws.
regard in particular to the alleged loss of opportunity it should be noted that because this loss was not recognized because it was proof of the existence of objective circumstances inferred in terms of certainty or high probability and not mere potentiality, the existence of an economically assessable damage ( Cass., 11.05.2010, No. 11353; Cass., 19.2.2009, n. 4052).
In conclusion, the application must be rejected as the peculiarities of the case and trial of the events lead to offsetting the costs of the process of appeal.
PQM
The Court rejects the appeal and order that the costs of the process di cassazione.
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