TS 18-03-16. Responsibility for a party premises
Party premises condemned to compensate an attendant for injury with a glass
“An attendant to “night club” “XYZ” steps a glass in the area of access to the bathrooms, which causes several injuries”. Claim to the establishment for extra-contractual civil liability requesting compensation of € 11,393.
The Court of First Instance partially considers the claim, alleging that in cases of extra-contractual fault governs the reversal of the burden of proof, and therefore, that by action or omission caused the risk must prove that it used all diligence to avoid The cause of the evil, and despite the fact that the local had contracted people in charge of collecting the broken pots, does not consider accredited that it took all the necessary measures to avoid the occurrence of the facts.
The company appeals to the Provincial Court of Madrid, appealing the exception of prescription of extinction of the action, revoking the judgment of first instance, and that on the basis that when the complaint was filed the criminal action was already prescribed, so in his view, this is not an act that initiates criminal proceedings, so that the late denunciation can not suspend the terms of a civil action that no obstacle had to exercise.
The injured person lodges appeal for cassation interest that the Supreme Court considers, confirming the judgment of the Court of First Instance, highlighting the following doctrine:
1º.- Regarding the prescription of civil action: based on what was established in an earlier ruling (TS January 21, 2014), states that when criminal proceedings have been followed for the same events, the limitation period of the action Civil service does not begin to run until the termination of the criminal proceedings is notified to the injured party. What does not find exception by reason of the result, that is to say, “although the complaint is filed because the criminal offense is prescribed”.
2º.- Concerning non-contractual civil liability: it states that: sic: “although it may not qualify as abnormally dangerous the operation of a disco known as” XYZ “, inherent to it are more than normal risks, among which generates the use of glass pots. And although such risks cannot be required to be eliminated, they should be reduced through targeted measures. In the absence of regulatory norms that specify them, will be those whose cost of adoption does not exceed the benefit. “
3 .- Regarding the burden of proof that adopted such measures – and therefore the lack of fault on their part – the Supreme Court, (TS), says that: Sic: “corresponds to the disco, based on the General Consumer Act And Users (LGDCU) art.147, which establishes the liability of service providers for damages caused to users, unless they prove to have complied with all the steps required by the nature of the service, and Law 17/1997, of 4 de Julio, of Public Shows and Recreational Activities, Madrid Autonomous Community, which in its article 6.1, which states: “Article 6. Safety and hygiene. 1. The premises and establishments included in the scope of this Law must meet the technical requirements and conditions, which in order to guarantee the safety of the attending public and the hygiene of the premises, as well as to avoid discomfort to third parties, establish the regulations in force. 2. The above conditions must include, inter alia, the following matters: A) Security for the attending public, workers, performers and property. … 3. Premises and establishments must have an insurance contract that covers the fire risks of the premises and civil liability for damages to the participants and third parties derived from the conditions of the premises, its facilities and services, as well as the activity developed And of the personnel that render their services in the same. The amount of the insurance will be determined by regulation. Likewise, they must have an emergency plan according to the norms of self-protectiAon in force “.
Consequently, the legal right to protect is the “security of the audience.“
Saenz & Associates, Lawyers, we are prepared to help you in case you suffer an accident both on the public road and/or in leisure centres. You may require our services at any time. We will take care of your problem in a professional and personalized way.
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