Responsibilities of the construction manager
It must be considered that the behavior of the works manager must be evaluated not with reference to the normal concept of diligence, but according to the “diligentia quam” in concrete terms: this means that such a professional is a qualified, professional personand as such it is presumed equipped with the knowledge necessary to practice the profession.
Consequently they fall within the obligations weighing on himconformity assessment both the progressive realization of the work to the project, and the methods of its execution according to the specifications and/or the rules of the technique, as well as theadoption of all the necessary technical measures aimed at guaranteeing the realization of the work without construction defects (Cass. Civ., section II, 17/02/2020, n.3855). Regarding theextension of the director's responsibility in the context of condominium works she recently expressed herself the third section of the Cassation in the ordinance of 9 April 2024, n. 9514. Let's see the story.
Director of condominium works, the story
A works director was convicted by the Court to compensate the condominium for some damage to the roof and underlying parts due to water infiltrations: the problem was that a construction company had recently carried out renovation work on the roof covering (but had made a mistake in anchoring the roof tiles). In practice the director had neglected to proceed adequately to monitor the execution of the works by the contracting company, thus making itself jointly responsible for the consequent damages borne by the condominium.
The Court of Appeal, in partial reform of the first instance decision, redetermined (decreased) the amount of the sentence already pronounced by the first judge against the defendant. The judges of second instance noted how the condominium actor had not provided adequate proof of the expenses incurred for the safety of the roofing of the condominium property, consequently having to exclude its calculation among the compensable sums. The works manager appealed to the Supreme Court; the appellant observed, among other things, that the reviewing judge had not assessed how the condominium was in such a serious state that it could not be ruled out that the infiltration would have occurred anyway; it also highlighted that the responsibility for the incorrect anchoring of the roof tiles was attributable exclusively to the workers of the contractor company or, at most, to site manager (not to the construction manager).
In any case, the appellant himself noted that the expert witness report carried out in the merits trial was flawed as it was created solely on the basis of photographic documentation and not an analysis of the places (due to the probable modification of the same which occurred to minimize flooding).
The decision
The Court of Cassation stated that in this case, the appellant, far from denouncing the failure of the judge of merit to respect the principle of free appreciation of the evidence or far from highlighting the failure of the judge to examine a specific decisive fact suitable to support his thesis, he limited himself to denouncing a poor exercise by the Court of Appeal of the power to appreciate the fact on the basis of the selected evidence, going so far as to propose a different reading of the merits of the facts of the case, critical operation completely inadmissible in cassation.
The sentence considered the works director among those responsible for the damage caused to the condominium, not only for actively committed mistakes by the same, but also for thefailure to carry out checks on the contractor's works. Therefore, The professional who fails to supervise does not escape responsibility and to issue the appropriate instructions in this regard, as well as to monitor compliance by the contractor and to report it to the client (Trib. Pistoia 23 June 2016 n. 588).
For the Court of Cassation, therefore, the activity of the works manager on behalf of the condominium owneralthough it does not require continuous and daily presence on the construction site, nor the completion of elementary operations, involves the control of the realization of the work in its various phases and, therefore, the professional's obligation to verify, through periodic visits and direct contacts with the company's technical bodiesif the rules of the art and the correspondence of the materials used for the correct execution of the works have been observed (Cass. Civ., section II, 19/07/2022, n. 22575).
