Limits to the security duty of supermarkets

In a recent judgment ("Carfagna Carlos c/ Greppi Pablo Alejandro y otro s/ Daños y Perjuicios”, 10/2004), Tribunal “G” of the Civil Court of Appeals determined the limits to the security duty of supermarkets with respect to damages caused to their clients by third parties at the supermarket premises.

In the case under analysis, the plaintiff was physically attacked by another client while he was in the supermarket. According to the evidence produced in the criminal proceedings, when the plaintiff was at the head of a queue to deposit empty bottles, he was criticized in a loud voice by another individual for the length of time he was taking. As the plaintiff answered that the delay was due to a technical problem of a machine, the other client broke an empty bottle of beer on his head.

The lower court rejected the claim with respect to the supermarket. This was later confirmed by the Court of Appeals. The arguments to discharge the supermarket’s liability were that aggressions, with consequences on the physical integrity of customers, are not common behavior in a supermarket, therefore it is not possible to sustain that the establishment had breached its security duty by the mere existence of the aggression, much more so if no irregularity in the security duty of the supermarket had been proved.

Tribunal “G” also considered that even if the aggression had been committed with a bottle owned by the supermarket, this would lead to the application of the last paragraph of section 1113 of the Civil Code, which establishes that the owner or guardian of a thing is not liable if it is used against its express or presumed will.

The physical aggression that causes damage to a person constitutes a personal illicit act of the person who executes it (sections 1109, 512, 909 of the Civil Code if it is committed with negligence, or section 1072 if it is committed with fraud), making him/her liable for the consequences that his/her aggression generates. The extension of liability to the owner of the physical space where the aggression takes place will depend on the characteristics of the activity developed at the premises, and whether the violent conduct is foreseeable. For example, in pubs or discos, where fights are common, these violent conducts are foreseeable, therefore the security duty of these establishments is only satisfied, according to court precedents, by preventing these physical fights and/or aggressions from happening; their mere existence implies a breach of their security duty.

In the case decided by the Court of Appeals the damage was caused at the premises of a supermarket, the thing (empty bottle) was not property of the supermarket, nor was the aggressor an employee of the supermarket.

So as the damage was caused "with" the thing and not by its risk or defect, the principles of strict liability could not be applied to the supermarket. The liability of the owner or guardian of the thing rests on his presumed negligence, a presumption that may be challenged by proving that there was no negligence on his/her part. The security personnel of the supermarket could not be held liable since the aggressor’s behavior could not have been foreseen or prevented, given how quickly the episode occurred.

Consequently, the Court of Appeals concluded that there was no element that could make thesupermarket liable since it was not the employer of the person that caused the injury, nor could the case be fitted in the sphere of strict liability (by risk or defect of the bottle that the third party used to cause the damage), nor was there any breach of the supermarket’s security duty.

The judgment confirmed a previous ruling at the same tribunal of the Civil Court of Appeals (in re "Africano, Antonio c/ Carrefour S.A.", Oct 27, 1999, where the defendant was represented by Marval, O’Farrell & Mairal) which, on similar grounds, decided that the supermarket was not liable for the damage suffered by the plaintiff as a consequence of a physical attack from a third party which occurred at the supermarket parking lot.