The limit of security duty for supermarkets

Tribunal H of the Civil Court of Appeals limited the security duty for supermarkets, when the Court maintained that this cannot be taken to the extent of safekeeping of the personal effects that clients carry, because that is under clients’ own responsibility. Otherwise this would imply taking the responsibility of the business owner to limits of absurdity.

1. Antecedents

In the "Abud, Horacio Elias c/ Carrefour Argentina S.A. s/ daños y perjuicios" case, the plaintiff claimed for the damages suffered as a result of the theft of his wallet, while shopping in one of the branches of the defendant’s supermarket. The defendant, represented by Marval, O’Farrell & Mairal answered the complaint. It rejected the claim invoking the fault of the victim and the existence of a third party -for whom the defendant was not responsible- in the event of the crime. Later the matter was pursued by the lawyers of the defendant’s insurer accordint to the provisions of the policy.

2. The legal frame of the case

The plaintiff based his claim on the terms of Section 8 of Consumer Protection Law. This article specifies the effects of deceiving advertising and imposes responsibility for the type of advertising offered on the offerer. In this respect, the palintiff made the supermarket responsible, considering that it has the obligation to offer those who visit its establishment security levels high enough to avoid this sort of crime.

Nevertheless, Tribunal H understood that such claim was not contemplated in the terms of Law No 24,240. For that purpose, it considered the declaration of the plaintiff, who said that he usually went to the branch of the defendant because it offered security and comfort. In this respect, the Court stated that the behavior of the plaintiff was not induced by a guarantee offered by defendant through advertising, but by the own determination of the plaintiff.

The Court of Appeals understood that the case could not be fitted in the orbit of contractual liability either. As it cannot be taken as a truth that every person circulating around the premises of a store has established a contractual tie with the supermarket.

In these conditions, Tribunal H understood that the claim could only be analyzed in the scope of non-contractual liability.

3. Duty of security and its limitations

Although the offence was deemed proven by the Court, the circumstances under which it occurred led the Court to affirm the appealed decision and, consequently, to reject the complaint for damages. It was taken into account that the appellant neither challenged the security measures taken by the supermarket nor proved the alleged insufficiency of such measures.

In fact from the criminal proceedings initiated as a result of the crime, the wallet was stolen from the trolley when the plaintiff turned his back to check a price, which led the Court to conclude that the negligent behavior of the plaintiff caused the occurrence of the event.

This court decision is the first to state that the liability of supermarkets, as to the duty of security, may not be interpreted so as to include personal belongings of customers. First, because, as stated by Tribunal H, such items are under the custody of the persons they are carried by. Second, because such interpretation would require that supermarkets control or ask any person entering a supermarket for their personal belongings, in order to avoid future claims.

In conclusion, the court decision reached in the case described above evidences a common sense decision, as the duty of security supermarkets are in charge of must be analyzed from the point of view of a prevision both reasonable and adequate to the business. The decision of the Tribunal implies a clear limit to the increasing number of claims such as this, which have been initiated against supermarkets in recent years.