I have suffered a fall in an establishment that is open to the public – do I have a right to compensation?
Article 1902 of the Spanish Civil Code establishes that, ‘anyone whose action or omission causes another to suffer injury or damage , involving intention or negligence, shall be obliged to remedy the injury or damage caused.
In general there are three requirements in order that this type of action may prosper:
- the damage or injury must be demonstrated;
- the existence of intention or negligence on the part of the defendant;
- a causal relationship between the first two i.e. that as a result of the action or inaction of the defendant, the injury to the plaintiff occurred.
There exists an enormous amount of jurisprudence in the Spanish tribunals in relation to this question. In the scenario where the activity going on in the establishment in which the accident took place is not in itself to be considered as extraordinarily risky or dangerous, so for example in hotels, restaurants and other centres of entertainment, the legal opinion of the Spanish courts is that it is not the responsibility of the defendant to provide an explanation for the cause of the injury suffered by the plaintiff. In effect, this means that the person who has suffered the damage or injury must demonstrate the responsibility of the defendant for the injury caused.
As the Constitutional Court has declared, in relation to falls that occur in buildings that are subject to the ‘ Laws of Horizontal Property’ (property law that applies to conjoined buildings giving rise to common obligations by the different owners), or those falls that occur in commercial premises or centres of entertainment, such as hotels or bars, the Community of Owners or Business Owners (depending on the type of property) are obliged to indemnify when it is possible to identify a reason for liability, by virtue of an omission of supervision, maintenance, signposting, care or precautions that ought to be in place.
In this vein, one can refer to the following decisions of the Supreme Court: of the 21st of November 1997 (fall as a result of an absence of a handrail in a staircase); of 2nd of October 1997 (fall in a club/discotheque which had no security personnel present); 10th of December 2004 (fall in the stairs of a gymnasium where the condition of the stairs in question was inadequate); 26th of May 2004 (fall in toilets that had not been cleaned of vomit on the floor); 31st of March 2003 and 20th of June 2003 (fall in a bar-café that had recently been mopped and the area mopped had not been appropriately cordoned-off) and Decision of the Supreme Court of the 12th of February 2002 (fall during a wedding reception due to insufficient protection where there was a considerable slope).
On the other hand, liability cannot arise in cases where the fall occurred as a result of the plaintiff having been distracted or if it can be described as being within the nexus of general risks that one tends to face such as an obstacle that one might encounter in everyday life or that ought to have been expected by the victim.
If the circumstances are such that the activity undertaken in the commercial premises in which the accident takes place involves an extraordinary risk. the jurisprudence has been seen to reduce the obligation to demonstrate liability, accepting the automatic responsibility/liability of the defendant, although that does not exclude the obligation on the part of the plaintiff to demonstrate not just the injuries that they have suffered, but also the existence of a causal relationship between the action/omission and the injury.