Italiano English

The Liability of the Tobacco Industry for Damage Caused by Smoking. Legal Theories and Legal Fictions

The Liability of the Tobacco Industry for Damage Caused by Smoking. Legal Theories and Legal Fictions



The tendency of the jurisprudence and doctrine on the nature of the liability for damages sustained by the consumer of tobacco is incoherent and vague, since sometimes the victim is burdened by the harshest burden of proof based on fault, other times is helped by the recognition of strict liability of manufacturers.
In the latter case, the protection of victim is undoubtedly more effective, because the damages are recognized regardless of the evidence of the subjective element of the infringement and, in particular, of the cigarette manufacturer’s fault. Reaching this result has not been a easy route, and different legal systems have reacted with different legal arguments. In Italy the Supreme Court has recently put a full stop at the question, qualifying as “dangerous” the activity of production and trade oftobacco and applying, therefore, the rules devoted to govern this field which are devote to the liability of activities dangerous per se like mining or for the means used, like electric- ity. But this legal fiction is not always feasible.

1. From the Dangerousness of Tobacco Produects to the Dangerousness of the Manufacturing Process

Product liability in Italy is not a large field of tort law, like in U.S. or other big countries, notwithstanding the impress use of tobacco products, only recently reduced by State regulation and health care predictive devices. Notwithstanding, from a legal point of view, is extremely challenging, because it involves the most important items concerning the basis of liability: fault, strict liability, causality, assumption of risk, and “market share” liability. Most of these problems arise from comparative law, as this field has been developed decades before in U.S. and Ital- ian student and lawyers are very interested in doing researches and finding solutions for new questions in more developed countries.
At this very moment we can consider a huge literary production bur a small number of cases. Case law, usually not so relevant in the mentality and cultural tradition of southern European countries, now begin to emerge as the leading source of the development of the legal system.

* Research Professor, School of Law, University of Rome La Sapienza


Da European Business Law Review