Accident boars: who pays? Comment on the decision of the Supreme Court No 80, 8 January 2010
With No Judgement 80, 8 January 2010, the Supreme Court, issued the decision under review, adding a piece get further the age-old question of damages caused by wild animals on public roads. The
left behind the court case was in 1999, in the province of Pesaro Urbino.
Without going into detail on the description of the facts, not relevant to that interest us here, the Court observed that:
art. 14, paragraph 1, letter f), L. June 8, 1990, No 142, gives the provinces the administrative functions pertaining to the protection of wildlife (1 st paragraph f);
art. 1, paragraph 1, L. February 11, 1992 No 157 gives the ordinary statute regions the task of issuing rules for the management and protection of all species of wildlife;
art. 1, paragraph 3 provides that the provinces do not implement the regional framework for delegation of the Regions, but by virtue of the autonomy given to them by art. 14, paragraph 1, read. f Law June 8, 1990, No 142;
Under national legislation, therefore, the provinces it is the explication of specific administrative and management functions within their territory.
The Supreme Court continues by addressing the specific region of Marche.
LR No. 5 January 1995 7 is attributed to the provinces ".... all the tasks relevant to wildlife management ... "such as creating an oasis of protection, nursery and arrest, the release of new leaders, development of technical operations and equipment capable of achieving the aims of environmental protection and increased species (Article 8), all activities "which can be higher or lower risk of interference with the animal's external activities in relation to how they are completed."
the risk that the wildlife may interfere with human activities and cause damage, therefore, depends solely from the control of the province. The same
LR 7 / 1995 also states that the provinces are required to carry out surveillance activities on the reserve, including by hunters and guards and arrange for the insurance policies for damages, without express limitation particular categories of harm (Article 34, paragraph 2).
In quanto inserita all'interno di una legge destinata a regolare i danni alle coltivazioni, quest'ultima norma non può essere considerata applicabile a qualsiasi tipo di danno; tuttavia, viene considerata dalla Corte di Cassazione “...significativa al fine di dimostrare che “...si riconosce che l'ente gestore del territorio, tenuto all'indennizzo e interessato alla stipula dell'assicurazione è la provincia...”.
Il principio generale enunciato dalla Cassazione in tema di responsabilità per i danni causati dalla selvaggina è, in definitiva, il seguente: “ è da ritenere che la responsabilità aquiliana per i danni a terzi debba essere imputata all'ente (Regione, Provincia, Ente park or Association) that have been specifically assigned, in each case, the powers of territorial administration and management of wildlife therein established, with decision-making autonomy sufficient to enable them to carry out the activity in order to manage the risk of damage to third parties that arise from such activities. The Law 7 / 1995 of the Marche Region is attributed to the provinces actually have almost all the administrative powers of the wildlife within their territory ...".
The ruling seems, therefore, put an end the age-old question of capacity to be sued for any damages to the road caused by wildlife.
However, with provisions Next to the facts of the proceedings, the issue has had important developments, it seems necessary to examine.
With art. 34a, LR 7 / 1995, added art. 15, paragraph 5, LR 29 July 2008, No 25, was determined to establish a fund for compensation from the State for damage to wildlife from the road "determining" the type of injury compensation claims and the procedures for the clearance "was referred to a separate resolution.
With DGR 1469/2008 (now replaced by DGR n. 1132, July 6, 2009), the Region Marche regulated the mode of compensation and damages payable, providing, however, significant limitations (50% of the damage, only accidents in which they are involved "ungulates" and where the contributory negligence of the driver can not be assessed in more than 20%) and considering only the payment of compensation.
also were not changed the duties and powers of the provinces in favor of legitimacy that the Court had laid the basis for its ruling.
should also be considered that, as stated in the report accompanying the DGR cited, so far the region's loss was still in question with an appropriate policy. The decision to establish the fund in accordance with Art. 34a, was taken precisely because of the enormous cost of insurance, which means that the region dropped its line of "liquidated damages" to take the road of 'compensation'.
In essence, with that measure the Regione Marche does not seem to have assigned responsibility for damage caused by wildlife to the road, but simply provides a special fund to compensate motorists, in the same way as it did with the art. 34, in relation to the damage to agriculture, where, for otherwise dealing with the damage caused to agricultural production and recoverable works prepared on farmland or grazing by wildlife, particularly protected from that, and the exercise of ' hunting, is un fondo regionale destinato alla prevenzione e ai risarcimenti”.
L'art. 34bis, L.R. 7/1995, pertanto, nulla sembra innovare rispetto al quadro normativo esaminato dalla sentenza 80/2010 della Corte di Cassazione, in quanto lascia inalterate le disposizioni che avevano portato la corte a decidere per la legittimazione passiva della provincia.
Se, al contrario, venisse considerata determinante la creazione del fondo al fine dell'attribuzione della legittimazione passiva, dato che la regione Marche limita il risarcimento al 50% del danno, si avrebbe il paradosso per cui metà spetterebbe alla Regione e l'altra metà alla Provincia di Macerata.
Inoltre, la Regione, se da un lato potrebbe auto-investirsi del dovere di indennizzare damages, the other would not have the power to change the general principles of tort liability in terms of supports on the basis of the decision by which the Supreme Court held liable to pay compensation to the province.
It is therefore considered, although with some doubt and pending a detailed assessment of case-law, who sued it is up to the Province of Macerata.
the Marche region can only be asked to pay dell'idennità provided by DGR 1469/2008 (now replaced by DGR n. 1132, July 6, 2009), with all the limitations set out therein (50% of the damage and only for claims with ungulates). Mr. Alberto
Pylons
0 comments:
Post a Comment