“TOURIST PERSONAL INJURY: SPANISH JURISPRUDENCE

OVERVIEW”

Eva Rosal NegreBudapest, April 4 th, 2008

ACOMMODATION CONTRACT• Characteristics of these contracts:

– Atypical– Bilateral– Complex– Onerous– Consensual

• Subjects:– Guest Needs full capacity to oblige himself

(art. 315 Civil Code: 18 years old)– Hotel’s titular

• Object: – Hotel’s titular obligations:

• Room and other dependences: Needs to assure a pacific use and enjoy to the guest.

• Services: Usually Hotels have complementary services (iron, buffet, etc…). Need to be paid apart by the guest (except negotiated before).

• Luggage: Duty of custody of the luggage by the Hotel. Hotel’s liability in case of unauthorized removal.

– Guest’s obligations:• Price: Pay the agreed price for the room and the

other used services.

HOTEL’S LIABILITY IN CASE OF INJURY• Everyone has the right to obtain a compensation in

case it suffers a damage caused by somebody else 1902 Spanish Civil Code.

• The Consumer Law foresees this right.• On November 2007, it has become in force the

Legislative Decree 1/2007 that approves the new law for users and consumers (among others) Article 8 states some of the basic rights of consumers, for example:

– Protection against the risks that can affect their health or security.

– Compensation of the damages and repair of the suffered harm.

• In consequence, guests have the right to obtain a compensation for the injuries that might suffer while they stay in a Hotel.

• The requirements for the application of this kind of responsibility are:– An Action or omission attributable to the hotel.

There are cases where the only responsible person is the guest that has acted in a negligent way no compensation.

– Existence of a damage/injury.– Causality connection between the

action/omission and the damage (one is a consequence of the other).

• The Doctrine also demands what could be called a “Guilt Principle” that signifies the impossibility to attribute by an objective system of guilt the responsibility of a damage.

• There is no responsibility of the owner or manager of a hotel when the existence of the action or omission and its cause relation with the damage is not properly proved to be generated by the hotel.

DAMAGE

CAUSALITY CONNECTION

ACTION OR

OMISSION

SPANISH JURISPRUDENCE

• Provincial Audience of the Balearic Islands of May 27th, 2007:– A client is compensated with 7.882,79.-€ plus

interests because she fell due to a non signposted step.

– The Hotel signed the step later and this fact is used by the Court to point out the necessity of this warning to the clients.

• Provincial Audience of Pontevedra of march 9th of 2007:– A woman slips in the bath; the bathtub does

not have a handle and it had two steps.– The court considers applicable the Consumer

Law of 1984 the responsibility of the damages is from the Hotel, except that is accredited that it has duly fulfilled the established requirements and other care that the nature of the product they offer demands.

• Provincial Audience of the Balearic Islands of November 5th 2003:– A woman suffers a foot injury when the

support of the soap (in the bathtub) falls from the wall where it was stuck.

– The Court rejects the claim because the woman leaned on the support and due to this action, the object fell.

– In this case there is an action a damage and a connection between them, however, the attribution of responsibility of the defendant is not proven by the plaintiff.

• Sentence of the Supreme Court of February 22nd 2001:– A guest of a Hotel falls from the terrace of his room

because the railing of the balcony breaks down.– The Hotel and insurance company are condemned to

pay 500.000.-€ to the client in order to cover the medical care and treatments and moral damages.

– The Hotel was not able to prove its obligation to correctly maintain the railway: 1902 Cc an omission causes a damage and they are causally connected.

CONCLUSIONS• Consumers have the right to be compensated

for the damages or injuries suffered during their stay in a hotel (art. 8 RD 1/2007).

• The jurisprudence has evolved from a 100% subjectivist opinion to a more objective responsibility system; however article 1902 Cc requires: a) Action/Omission; b) Damage and c) Connection.

• “Ad casum” situations, however the prove of the commented requirements is necessary in order to obtain a favorable sentence.

THANK YOU VERY MUCH FOR YOUR ATTENTION

Eva Rosal Negreeva.rosal@bellvehi.comPlaça Independència, 16, 1º-1ª17001 – GironaSpainT: 0034.972.21.97.73F: 0034.972.21.31.87www.bellvehi.com