In a car with a drunk driver? Reduced compensation in the event of an accident

Compensation may be reduced for the carried victim of a traffic accident when he/she is aware that the driver was driving under the influence of alcohol (given the high level found - 1.89 g/l against a maximum allowed of 0.5 - and having spent the evening together) and therefore voluntarily exposed himself/herself to an abnormal risk. Of which he must bear the consequences, in proportion to his degree of guilt. This was established by the Supreme Court in its ruling 21896/2025 of 30 July 2025, which precisely reconstructs the case law on the subject.

The judges ruled on the appeal by the victim's relatives against the appeal sentence that had reduced by 30% the compensation for damages for loss of parental relationship. According to the appeal - apart from the lack of proof on the consciousness of the victim - the concurrence of fault of the injured party (ex art. 1227, paragraph 1 of the Civil Code) could not have been invoked, because it could only be recognised "in case of active co-operation". The citation made in the appeal comes from Court of Cassation sentence 27101/2005.

Declaring the plea to be unfounded, the Supreme Court reviewed the numerous subsequent rulings, which went beyond that approach, relying on a much less restricted notion of contributory negligence: this also includes the behaviour of the passenger who, by accepting the risks of an abnormal traffic situation or manifestly disregarding the rules governing safety, makes a contribution of negligence in the occurrence of the damage. The percentage quantification is left to the merits judge's ascertainment, which may not be challenged in a court of law if correctly motivated. As in the case of a moped, constructed and registered for the transport of one person and instead circulating with more than one person on board (ruling 22 May 2006 no. 18974); but it is also the basis of the conspicuous jurisprudence that consistently recognises the contributory negligence of the passenger who has not fastened theseat belt.

The consolidated principle is that "if the placing of a vehicle on the road in an unsafe condition is attributable to the action or omission not only of the driver - who, before starting or continuing the journey, must check that it takes place in accordance with the normal rules of prudence and safety - but also of the passenger, who has accepted the risks of circulation, there is a hypothesis of culpable cooperation of the aforementioned in the conduct causing the harmful event" (Court of Cassation 10/06/2020, no. 11095; 27/03/2019, no. 8443; 04/09/2024, no. 23804).

EU law and jurisprudence cannot be invoked: while it would be contrary to Article 13 of Directive 2009/103 for a national rule to exclude or limit a passenger's right to compensation for the mere fact of having taken a seat in a vehicle driven by adrunk driver, a national rule that, without laying down time limits or exclusions in general, allows the judge to assess the victim's conduct on a case-by-case basis, according to the rules of civil liability, does not violate EU law at all (Court of Cassation, 17/09/2024, no. 24920).