Tourism Law in Europe

18 reversing the burden of proof at trial, with the injured party having to prove only the action, the damage and the causal link between the two 43 . Given the above, it is necessary to ask whether we are dealing with liability for fault, as seems to be inferred from the statements made, for which the employer will only be liable when the damage arises from his own or his employees' negligent acts and omissions, or whether it should be classified as a liability for risk, derived from the operation of the hotel business itself. We understand that we are not dealing with a potentially risk-generating activity, although it is true that there may be risks, and therefore, the employer could only be held liable when the damage is due to an event in which the wilful act, fault or negligence of the employer or his employees or agents is involved, in whole or in part. This is so because, despite a certain objectivisation of the non-contractual liability we are dealing with (STS of 28 October 1988) 44 , which accentuates the diligence required of the employer in the sector, requiring him to exercise extreme caution in the exercise of his activity to try to avoid the damage, but without the possible risk being the only basis for the obligation to compensate the victim in the event of an accident, since taking into account that the accommodation service cannot be classified as a risky activity (SAP of Murcia, 8 January 2002), the general principle of liability for the fault will continue to govern the actions of the employer in the sector. We have qualified this liability as non-contractual, because we understand that, in the majority of these cases, the damage is generated by some civil wrong, which on many occasions transcends the contractual sphere. However, the solution we propose is coherent and is understood to be congruent by our courts, as in these cases there is a 43 Vid ., among others, the Judgments of the Provincial Courts of Seville, of 9 July 1997; and of 14 April 2003; as well as of the Balearic Islands, of 9 December 20. 44 According to ZAMORA MOLINA, J. “La responsabilidad vinculada al funcionamiento normal de la empresa hotelera u hostelera”, in Aspectos jurídico-mercantiles del turismo , Adolfo Aurioles Martín, A. (Coord.), Atelier, Barcelona, 2003, pp. 49 et seq ., there would be no place in this area for the application of the objective criteria of business liability, bearing in mind that the general principle of the hotel or hotel tourism activity revolves around an apparently innocuous reality, which consists of having premises dedicated to accommodation, an activity whose performance does not in itself generate a danger for the users, so it does not seem that the businessman should be obliged to respond for all the harmful events that occur within his establishment, but only those that are directly related to the services provided in the establishment to the users or linked to them.