Accident near the intersection, there is contributory negligence

The story concerns a road accident occurred in Torremaggiore on 10/8/2009 at 00.30. The driver of the moped Malaguti complains of having been hit on the right side by the Lancia Y car and deduces the responsibility of both drivers involved equally. Following the impact, the motorcycle was damaged and the driver suffered personal injuries; compensation of 50% is requested for both items.

The Court of Foggia recognized contributory negligence in the occurrence of the accident, borne by the motorcycle to the extent of 70% and the car to the extent of 30%.

The appeal judgment

The motorcyclist disputes that the Judge found that both drivers of the vehicles had not used due caution at the intersection, while recognizing greater responsibility for the motorcycle.

The Court ruled that “70% of the responsibility for the accident must be attributed to the motorcycle, which did not exercise maximum caution by duly slowing down to speed near the intersection and above all he did not respect the right of way of the Lancia Y vehicle coming from the right”.

So, the rationale has been provided. However, considering that the accident actually occurred at an intersection, comes into referenceart. 145 of the Highway Code, paragraph 1), which provides that: “Drivers approaching an intersection must use maximum caution in order to avoid accidents”. The rule refers “to drivers”, thus referring both to those who have the right of way and to those who are not recognized as having this right.

The rule of prudence

The first fundamental one prudence rule for every driver driving a vehicle is to moderate the speed, in such a way as to have the time and space to brake, in the event that an obstacle is suddenly encountered and to check if, from the adjacent roads, any car that shows no intention of stopping.

From the documents in the case it is not clear which of the two drivers bears predominant responsibility. In fact, it appears from the Carabinieri report “based on the results of the planimetric and photographic surveys… it is to be assumed that both vehicles, approaching the intersection, did not use the utmost caution in order to avoid the accident…”

The witness statements did not provide valid elements to ascertain the concrete dynamics of the accident. Therefore it cannot be considered overcome presumption of equal responsibility of both drivers, provided for by art. 2054, paragraph 2, civil codeas no factual elements emerged suitable for the reconstruction of the accident which lead to the charge of prevailing responsibility on the part of the motorbike, as established by the Court.

Presumption of concurrent fault

There presumption of concurrent fault, despite the interpretative scope of the art. 2054 co 2 cc, postulates the subsidiary nature of the presumption of equal responsibility, “having to be applied only in the case in which it is impossible to concretely ascertain the degree of fault of each of the drivers involved in the accident; the ascertainment of the violation by one of the drivers of the obligation to give precedence does not exempt the Judge from verifying the behavior of the other driver in order to establish whether or not the latter has in turn violated the rules on road traffic and the normal precepts of prudence, as any failure to comply with these rules could lead to the assertion of concurrent negligence” (in this sense Cass. 21130/2013; Cass. 124/2016).

Well, if that’s true, that the motorcyclist, having reached the intersection, failed to give way to the vehicle coming from his right, it is equally true that “enjoying” the right of precedence, such as that of the Lancia Y, did not entail an absolute right of precedence for it , also considering the high speed of the marchesto.

Reasoning in this sense, the collision is causally attributable to both drivers of the vehicles involved who were guilty of complicity.

Contributory negligence

To arrive at that conclusion the Court of Appeal also considers further elements, such as:

the road was straight, well lit, and therefore with good visibility even for the Lancia Y,
Furthermore, the driver of the Lancia does not appear to have activated the braking system near the intersection.
She did not show up for the formal interrogation, without giving a justified reason. This failure to appear, not justified by valid reasons, although not resulting in an automatic confessional fictionconstitutes qualified procedural behavior, useful for providing evaluation elements suitable for forming the judge’s conviction on the circumstances articulated in the interrogation chapters by the current appellants.

In this situation, therefore, it is impossible to actually ascertain the degree of fault of each of the drivers involved in the accidentwhile taking into consideration the fact that the driver of the motorcycle had the obligation to give priority to vehicles coming from the right.

Conclusively, the art must be applied. 2054, second paragraph of the Civil Code, according to which in the case of a collision between vehicles it is presumed, until proven otherwise, that each of the drivers equally contributed to causing the damage suffered by the individual vehicles.

The first instance sentence is reformed and the contributory negligence of the drivers of the vehicles involved in the accident is declaredwith the consequence that the motorcyclist will have to be compensated for damages, (quantified in full at €97,569.60), to the extent of 50%, (from which the advances already paid by the insurance will be deducted (Bari Court of Appeal, section. III, 14/02/2024, n.206).

Lawyer Emanuela Foligno