Are designers personally liable for design defects? (Italian law)

The designer's civil liability: professional engagement, employment relationshop and liability towards third parties

Outside the scope of the special liability regime provided by the Consumer Code, the designer’s position must be examined in light of the general rules of the Civil Code. 

Similarly, the designer’s liability cannot be established automatically merely because the product caused damage. It is instead necessary to verify the role actually performed by the designer, the content of the task assigned to him, the degree of technical autonomy available to the designer and the causal relationship between the design activity and the defect identified. 

Where the designer acts as an external professional appointed to carry out the design work, the relationship with the client is normally contractual in nature. In this case, Articles 1218 and 1176, paragraph 2, of the Civil Code may become relevant, with a consequent assessment of the professional diligence required in relation to the nature of the activity performed. In cases where the service involves technical problems of particular difficulty, Article 2236 of the Civil Code should also be considered. The latter provides that the appointed independent designer is liable only where the designer has acted with wilful misconduct or gross negligence. 

The designer’s contractual liability may arise vis-à-vis the client (i.e. the manufacturer) where, due to the designer’s responsibility, the design is not compliant with the assignment received, the rules of the art, technical standards, or applicable safety requirement. Furthermore, it is necessary that recoverable damage results from that breach. 

Instead, liability towards injured third parties presents a different structure. In the absence of a direct contractual relationship between the designer and the injured party, any personal liability of the designer may be based on Article 2043 of the Civil Code, concerning so-called “non-contractual liability”. From this perspective, the third party must prove the existence of, at least, negligent conduct by the designer, unjust damage, the causal link between the conduct and the damage, and the attribution of the defect to a design error. 

The designer’s non-contractual liability is therefore theoretically conceivable, but it presents significant evidentiary difficulties. It is not enough to prove that the product was defective, as is the case with the manufacturer’s liability; it is necessary to prove that the defect arises from a specific design deficiency and that this deficiency is attributable to the designer by way of fault. 

A further issue concerns cases where the designer operates within the manufacturer’s organisation, for example as an employee, a coordinated collaborator, or a person otherwise durably integrated into the company structure. 

In such cases, Article 2049 of the Civil Code may become relevant. It governs the liability of employers and principals for the unlawful acts of help and employees in the performance of the tasks assigned to them. Applied to the context under consideration, this provision may ground the liability of the employer or principal for the unlawful act committed by the designer while performing the duties assigned to them. In practice, in the case of damage caused by a defective product as a result of a design deficiency, this liability towards third parties will essentially amount to the manufacturer’s liability provided for under the Consumer Code. 

The principal’s liability does not, however, exclude the personal liability of the designer. The two forms of liability may coexist: the former is based on the designer’s functional integration into the company’s organisation; the latter, by contrast, requires proof of the constituent elements of tortious liability. 

In the case of an employed designer, the injured party’s claim will normally be directed first against the manufacturer or the employer, both for reasons relating to the statutory allocation of liability and for reasons of solvency. This does not prevent the designer from being held personally liable, especially in cases of conduct that is grossly negligent, imprudent, or incompetent.

In this respect, the internal relationship between the employed designer and the employer must be further examined. In fact, any recourse action or damages claim brought by the employer against the employee must be assessed in light of the individual employment contract, the applicable collective agreement, the tasks assigned, the degree of technical autonomy, the instructions received, the company organisation, the possible contribution of other parties, and the principle of proportionality. Premature conclusions must, therefore, be avoided: the employee’s internal liability depends on the concrete arrangement of the relationship, the seriousness of the conduct, and the actual causal impact of the design activity on the damage that occurred. 

Where, instead, the designer is an external professional, the manufacturer or client may potentially bring an action of recourse or a contractual liability claim against the designer, where the product defect is attributable to a design error imputable to that professional.

It follows that the designer’s civil liability must be assessed on a case-by-case basis, taking into account not only the existence of the defect, but also the legal relationship in which the designer is involved, the content of the assignment, the foreseeability of the risk, the applicable technical rules, and the causal contribution of the design to the production of the damage.
 

Criminal liability profiles connected with defective design

In the context of criminal law, the designer may be held liable for damages caused by a defective product where the design defect results in personal injury or, in the most serious cases, the death of a person. 

Here too, however, liability is not presumed from the mere existence of the defect. Criminal law requires a rigorous assessment of the conduct, fault, causal link, and attribution of the event to the risk that the breached precautionary rule was intended to prevent. 

In the case of personal injury, reference must be made to Article 590 of the Criminal Code, which governs negligent personal injury. The injury must consist of an illness of the body or mind, understood as a functional alteration of the organism, even if temporary, provided that it is appreciable from a medical-legal standpoint. The seriousness of the injury must be assessed in light of the criteria laid down by the Criminal Code, with particular reference to the duration of the illness, the inability to attend to ordinary activities, and the possible occurrence of permanent damages. 

Where the product defect results in a person’s death, Article 589 of the Criminal Code, which governs manslaughter by negligence, may instead be applicable.

 For the purposes of negligent attribution, it will be necessary to establish that the designer acted with negligence, imprudence, incompetence, or in breach of laws, regulations, orders, or rules. Negligence occurs where conduct is careless in relation to the precautions that could reasonably be required; imprudence exists where the person acts rashly or contrary to duties of care; incompetence, by contrast, consists in the breach of the technical rules specific to the professional activity carried out.

In the designer’s case, the hypothesis of incompetence is particularly relevant, since design activity requires specialised expertise and compliance with technical rules, safety standards, best practices, and the rules of the art. Breach of such rules may indicate fault only if they were applicable to the specific case and were aimed precisely at preventing the risk that subsequently materialised. 

Both in the case of negligent personal injury and in that of manslaughter by negligence, the causal link between the designer’s conduct and the event must be established. In negligent offences, it is not sufficient to prove that the conduct constituted a condition of the event according to a counterfactual assessment. It is also necessary to verify that the event that actually occurred represents the materialisation of the risk that the breached precautionary rule was intended to avoid. 

Therefore, in the case of a defective product, it will be necessary to establish not only that the injury or death would not have occurred in the absence of the defect, but also that the defect is causally attributable to a specific breach, on behalf of the designer, of the technical or precautionary rules applicable to the design. 

In light of the above, the designer’s criminal liability is certainly conceivable in the abstract, but it requires particularly rigorous proof. It will be necessary to prove, beyond reasonable doubt, the defect of the product, the harmful event, the causal attribution of the defect to the designer’s conduct, the breach of a precautionary rule, and the concrete materialisation of the risk that the rule was intended to prevent.
 

The European Union regulatory framework on defective products

The European framework on defective products has historically been based on Directive 85/374/EEC on liability for defective products. That regime was implemented in the Italian legal system and is now incorporated into Articles 114 et seq. of the Consumer Code. 

The European system was recently updated by Directive (EU) 2024/2853, which repeals Directive 85/374/EEC and reforms the rules on liability for damages caused by defective products. The new directive must be transposed by the Member States by 9 December 2026 and will apply to products placed on the market or put into service from that date. Products placed on the market before 9 December 2026 will continue to be governed by the rules deriving from Directive 85/374/EEC. 

Directive (EU) 2024/2853 confirms the approach whereby the injured party must prove the defect in the product, the damage suffered, and the causal link between the defect and the damage. However, it updates the regime in light of technological developments, including aspects related to software, digital systems, and connected products. 

Alongside the civil liability regime for defective products, EU legislation on general product safety should also be mentioned. In particular, Regulation (EU) 2023/988, applicable from 13 December 2024, establishes the general obligation to place or make available on the market only safe products. As of the same date, the regulation repealed Directive 2001/95/EC on general product safety. 

Product safety does not concern only the final stage of placing the product on the market but must be considered from the design stage onward. The technical characteristics, intended purpose, reasonably foreseeable use, instructions, warnings, maintenance and interaction with other products may all be relevant in assessing overall safety. 

Sector-specific rules then apply to particular categories of products. In the case of machinery, the main reference is currently Directive 2006/42/EC, which is to be replaced by Regulation (EU) 2023/1230. The latter lays down rules relating to machinery, related products, and partly completed machinery, with the aim of ensuring a high level of safety for workers and citizens of the Union. The regulation will replace Directive 2006/42/EC as of 20 January 2027, except for certain provisions that apply from earlier dates. 

For designers, these provisions are particularly important. The essential health and safety requirements must not be considered only at the end of the design process but must guide the entire design and product development activity. Safety must therefore be integrated from the outset, through an adequate risk assessment and design choices suitable for eliminating or reducing risks at source. 

In the case of machinery, the design of geometries, the choice of components, the sizing of forces and movements, the accessibility of mechanical parts, and the definition of methods of use directly affect the hazards that are actually present. If these aspects are neglected during the design phase, protective measures often end up being introduced only subsequently, through solutions that are more complex, costly, and sometimes less effective. 

Risk assessment is therefore a central tool. It makes it possible to identify hazards promptly, assess risks, and adopt appropriate design measures before additional protections become necessary. The most effective measures are those integrated directly into the product design, for example through safer geometries, reduction of hazardous forces, limitation of risky movements, or elimination of access to hazardous areas. 

Technical documentation plays an essential role from this perspective. The design choices relevant to safety, the risk assessment, the solutions adopted, and any residual measures must be documented clearly and verifiably. This documentation is relevant not only for regulatory compliance purposes but may also be important in the context of assessing civil or criminal liability.