Tourism Law in Europe

16 V.2. Liability for Damage Caused to the Guest’s Health and Physical Integrity We have already stated that the fundamental obligation of the hotel operator is to provide the accommodation service by making the agreed room available to the guest and to maintain him in the peaceful enjoyment of the same. This obligation must also be carried out under optimum safety conditions, as it cannot be considered to be fulfilled if there are risks to the health or safety of the guest. This necessarily implies that the host must comply with all the established safety measures (some imposed by Community rules and most by autonomous community rules), aimed at safety in the infrastructures and in the services provided, fundamentally the food service, and must also adopt all the necessary measures that the prudence and diligence of a good businessman would advise for the provision of each of the services provided. Notwithstanding the above, the fact is that given the multiple activities that are usually carried out in accommodation establishments and the services provided there, it is possible that situations may arise that could endanger both the health and the integrity of the client. This obliges us to determine when the employer is liable for such circumstances and when he is not liable for them, understanding them as unfortunate accidents. To begin with, the employer will be liable for all those circumstances in which there is a breach of the mandatory safety and infrastructure rules to which we referred to in general 40 ; But he will also do so when, while complying with such rules, he does not take the special care required of any prudent businessman, with the establishment's own equipment and attention to its care and infrastructures, as on this point the businessman is required to take special diligence which is not only understood to be fulfilled when he follows the legal precautions and the regulatory rules, but also when he pays attention 40 Vid., among others, the Judgment of the Provincial Court of Tenerife, of 16 May 2003, in which it is accredited that “ Ha quedado probado que la cristalera de entrada no reunía las mínimas condiciones de seguridad, al deshacerse por un mínimo impacto, como es el ocurrido con la menor de entonces siete años de edad, cuyo peso no sobrepasaba los veinticinco kilos, astillándose por completo en la cara de la niña, lo que provocó la gravedad del accidente, hecho que determina claramente, a su juicio, la responsabilidad de los demandados ”  It has been proven that the entrance window did not meet the minimum conditions of safety, as it fell apart on the slightest impact, as was the case with the then seven-year-old child, whose weight did not exceed twenty-five kilos, splintering completely in the child's face, which caused the seriousness of the accident, a fact which determines, in its opinion, the liability of the defendants (author’s translation)  ; also, and along the same lines, those of the Provincial Courts of Alicante, of 25 November 2003; of Ourense, of 2 December 2004; and of Cáceres, of 18 July 2012.