Tort Law Sustainability: An Italian Perspective

This Article considers how the concept of sustainability might be applied in the field of tort law, with particular attention to recent developments in Italian law. When referring to “sustainable tort law,” this Article refers to a system in which liability is distributed across society through insurance. Under this framework, sustainability coincides closely with insurability. This conclusion can be considered from several different angles. First, with respect to sustainable compensation, damages must be capable of reasonably quantification ex ante, and compensation must retain its restorative function. On this view, punitive damages are not sustainable. Second, with respect to the imputation of liability, the adoption of certain liability rules approaching strict liability have made tort liability as a whole unsustainable. The Italian experience with medical malpractice liability illustrates this point: plaintiff-friendly liability rules led insurance companies to exit the market, which then ultimately necessitated legislative intervention. Third, looking forward, tort liability would become unsustainable if it provided compensation for claims that could not be insured against. The COVID-19 pandemic provides a useful illustration of this point.