Liability and "Risks of Life"



How to differentiate between "general risks of life" and situations that generate a liability?

The Liability It is the duty to compensate any injured by a debtor who infringes a duty of conduct.

It can generate Liability therefore "own facts" as "totally unrelated" (in cases where the responsibility falls on someone other than the tortfeasor, eg, parents regarding the children in their care).

In our legal system, coexist contractual liability and tort, so that at times, it is difficult to distinguish between them.

For there contractual liability there must be a contract or contractual relationship and the damage must be caused by the failure or defective performance of the subject of the contract.

Conversely, we face tort when damage occurs by the violation of the general duties of conduct, regardless of any obligation arising between the parties. Namely, even though there might be a contractual relationship between the parties, the damage is outside the fulfillment of the agreement.

The Supreme Court itself recognizes the difficulty of distinguishing between both concepts among others, in its judgment of 19 July 2005.

However, the difference is not trivial, for contractual liability for the prescription has a term of 5 years old (article 1964 Civil Code in its wording by Law 42/2015 of 5 October) and tort has a period of only one year (article 1968 the Civil Code in relation to 1902 C.C.).

Inside of tort, is especially difficult distinction between "Risks of life" and guilty or negligent risk.

Considered "General risks of life" those who could have been anticipated by the rough, which are due to the distraction of the injured, or by obstacles occurring within normal (step at a restaurant -STS 30 March 2006-, irrigation hose used for municipal services -STS 2 March 2006-, revolving door of a hotel -STS 17 June 2003-, fall on a wet floor market -STS 22 February 2007- ).

In these cases, It not considered to have tort but the victim must bear the consequences of his accident.

The Supreme Court has ruled on a case related to this issue, in Case 22 December 2015.

In July 2011, D. Rafael and his wife were finalizing the purchase of a vehicle "Garages Berria". The car was in a parking lot next to the Deba River. By going to the rear of the vehicle, D. Rafael fell into the river, died instantly. The vehicle was separated from the vacuum at a distance, for different versions, between 50 cm and two meters. A small parking curb separating the river with a drop of six meters.

The land was not owned by the company sued but it was integrated in the bargaining activity facto. The company, He had asked the City Council to build a defensive wall but was allowed only a breakwater.

The heirs of D. Rafael sued the company and its insurer.

The Court of First Instance number 1 Bergara dismissed the claim in sentence 26 March 2013.

Plaintiffs, They appealed to the Provincial Court of Guipuzcoa in sentence 9 October 2013 He dismissed the appeal.

So the heirs filed appeal to the Supreme Court for infringement of Article 1902 Civil Code.

The Board considers the reason. He considers that to operate the item 1902 of C. Civil be precise action or omission attributable to that intended responsible. In the absence of safety fencing, Predictably for a risk that the defendant would be generated as happened. The company tried to build a wall and not allowed, but it did not state that intentasen install fences.

It is not a case of what the doctrine considered "General risks of life", Given the the event could not be foreseen by the accident, as the risk created exceeded the average standards (STS 20.12.2007).

The conduct of the defendant, relevante like to reconsider suficientemente in erigirla cause damage: He used for display a field next to a bank of six meters, where the fall occurred with serious consequences indicated.

It is ratified as jurisprudential doctrine:

"When determining the nexus of legal causation, It must be assessed interference victim, predictability and the possibility of avoiding the accident by the victim with normal diligence, and creating the potential risk causing ".

Ultimately, the resource estimates, the sentence was condemned house and the insurance company to compensate with 149.644 euros to the heirs of the deceased by tort.

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