(CABA) La cadena de café Starbucks Coffee Argentina SRL tendrá que pagarle más de 100 mil pesos de indemnización a un estudiante universitario al que un ladrón le robó la computadora mientras estaba en el local junto a una compañera. A esa cifra, por daños emergentes y daño moral, hay que agregarle los intereses. El cliente no logró que le pagaran, además, por daño psicológico.
La decisión la tomó, en un fallo dividido, la Sala D de la Cámara en lo Civil, que determinó que no fue un hecho “fortuito” e imprevisto para la cadena. “Hoy en día el robo no lo es”, sostuvo una de las juezas y añadió que el local podría haber tomado medidas para evitar este tipo de situaciones.
Incluso, el fallo al que accedió Infobae destacó que los bares ofrecen servicios de conexión y wifi “precisamente como un medio para atraer a la clientela, que se siente segura dentro de un local cerrado”. Así las cosas, los comercios, entonces, deberían garantizar una “estadía placentera y pacífica, colocando o en su caso incrementando la vigilancia en cualquiera de las formas posibles” para evitar la repentina aparición y fuga de un ladrón.
En disidencia, otra jueza aseguró que “el asalto llevado a cabo por una persona, que entra a un local, con una arma de fuego es un hecho de tercero notoriamente ajeno a la relación de consumo” y destacó precisamente la aparición de un delincuente en forma “sorpresiva y violenta” no es algo por lo que deba responsabilizarse a la cadena de cafetería. También dijo que la ley prohíbe el uso de armas a los custodios de un local y se preguntó qué pasaría si, con custodios llevando revólveres, se desatara una batalla dentro de la cafetería.
El fallo, que se aplica solo para esta demanda, amenazó con abrir la puerta a una ola de reclamos civiles para los establecimientos comerciales cuando un cliente sufra un robo dentro del local. Sin embargo, una de las juezas dejó claro entre líneas: “Lo aquí resuelto no puede extenderse a otros supuestos similares, ya que los jueces debemos decidir atendiendo a las particularidades de cada caso concreto”.
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“Quieto o te tiro”
Todo ocurrió el 8 de febrero de 2016, en el local comercial Starbucks, de la calle Cabildo 2594, esquina Roosevelt, en el barrio de Belgrano. Joseu Nahum Tapia Araya, un estudiante universitario, se encontraba en el local con una compañera preparándose para un examen. De pronto, un hombre, de unos 30 a 35 años, apareció en local.“Quieto o te tiro, dejá todo ahí”, les gritó el delincuente, con una mochila en la mano, de la que sacaba y metía lo que parecía ser un arma. Otro de los presentes escuchó: “Córranse, no hagan nada sino les pego un tiro”. Nadie se movió. El ladrón tomó las computadoras de Tapia Araya y la de su compañera y se fugó del local, en una moto en marcha que lo esperaba en la puerta.
Pasado el robo, Tapia Araya presentó una demanda contra la compañía. El juez de primera instancia lo rechazó, pero el cliente volvió a insistir en la Cámara Civil. Y ahora, en una votación dividida, los jueces de la Sala D le acaban de dar la razón, reforzado en los derechos del consumidor que consagró la Constitución Nacional, y ordenó indemnizarlo. El fallo fijó el pago de $112.499, “más sus intereses calculados desde la fecha del hecho, en concepto de daño emergente y daño moral” y se rechazó, en cambio, los reclamos por daño punitivo y tratamiento psicológico.
Los jueces Víctor Fernando Liberman, Patricia Barbieri y Liliana E. Abreut de Begher se centraron en analizar si el robo podía ser considerado un “caso fortuito o de fuerza mayor”, que eximiera de responsabilidad a los dueños del local. En su primer voto, Liberman destacó que aquí debe aplicarse el nuevo Código Civil y Comercial de la Nación (“un verdadero cambio con respecto al régimen anterior”) y por eso la responsabilidad de los propietarios de un local gastronómico se asemeja al de un hotel, en donde rigen “las disposiciones que regulan la responsabilidad del hotelero por pérdida o daño en los efectos introducidos en el hotel por el viajero”.
Según señaló, hoy en día “resulta común que la gente concurra a establecimientos como el del demandado con equipos tecnológicos, sean ellos computadoras personales, teléfonos, celulares, tablets, etc. Todos con acceso a internet, en busca de conectividad a una red wifi gratuita y segura como suelen brindar cada vez más locales del rubro gastronómico. Como asimismo a fin de poder cargar los equipos en una toma de electricidad, debido a la escasa extensión –de no más de unas horas- de la batería de estos”.
El robo como un hecho previsible
El juez Liberman agregó que “los asaltos a mano armada son previsibles, y lamentablemente ocurren con cada vez más frecuencia en locales a la calle, por lo que cabe preguntarse si en este caso era evitable”. En ese sentido, advirtió que “en general se considera que el empresario debe aportar medidas de seguridad y prevención necesarias en función de su actividad; controlando el correcto funcionamiento de los mecanismos de seguridad implementados y la capacitación del personal en que delega la efectiva vigilancia, en cuyo contexto la sustracción de los bienes depositados, aun llevada a cabo a mano armada, no puede ser considerada imprevisible, máxime en atención a la reiteración con la que suele cometerse tal modalidad delictivo”.
“En todo caso lo aconsejable sería, dado la cotidianeidad de estos acontecimientos que a nadie resultan extraños o imprevisibles, que el titular de este tipo de actividades, que se beneficia con la explotación de dichos comercios, contrate un seguro frente a todo riesgo, a los fines de evitar inconvenientes de índole económica”, dijo el juez Liberman. Y añadió que Starbucks debía “garantizar la seguridad en los bienes que llevaba el actor, en su carácter de explotadora del comercio donde aconteció el hecho, habiendo incumplido por ende la obligación de seguridad que cabía respecto” del cliente.
La jueza Barbieri, por su parte, coincidió con hacer lugar a la demanda. Señaló que “es habitual que en los locales de la demandada el público, normalmente jóvenes, asistan y al tiempo que consumen alguno de los productos que se expenden se los vea utilizando sus notebooks, tablets, celulares, puesto que el negocio los provee de todos los servicios de conexión y wifi gratis precisamente como un medio para atraer a la clientela, que se siente segura dentro de un local cerrado, en lugar de utilizar esta tecnología en lugares públicos como una plaza, ya que no podemos desconocer los episodios delictivos que diariamente acontecen en la vía pública”.
“Es por esta circunstancia –dijo la jueza- que en virtud del deber de seguridad al que alude el vocal preopinante¸ la demandada que se beneficia con este negocio debe extremar las medidas de seguridad para garantizar a sus clientes una estadía placentera y pacífica, colocando o en su caso incrementando la vigilancia en cualquiera de las formas posibles, utilizando algún tipo de infraestructura que dificulte el acceso expedito a las mesas, etc., por lo menos, para persuadir a eventuales delincuentes de cometer actos como el perpetrado contra el aquí actor, circunstancia ésta que no veo se haya acreditado”.
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La jueza agregó que el caso aquí analizado no puede ser entendido como un caso fortuito o de fuerza mayor, para eximir de responsabilidad civil a la cadena. Eso habla de “un acontecimiento imprevisible –hoy eh día un robo no lo es- e inevitable -tampoco probablemente en el caso, de haberse tomado alguna medida de seguridad-, siendo por otro lado también este tipo de acontecimientos una contingencia si bien no específicamente propia de la actividad desplegada en épocas anteriores, previsible en la actualidad y con alta probabilidad de evitarse”.
La jueza que dijo que la culpa fue del ladrón y no de la cafetería
En disidencia, la jueza Abreut planteó: “El asalto llevado a cabo por una persona, que entra a un local, con una arma de fuego es un hecho de tercero notoriamente ajeno a la relación de consumo, que no puede enrostrársele automáticamente a la demandada en la forma en que se sostiene”.
Destacó que “resulta acertado destacar que del propio relato del actor, como de su compañera de facultad, en sede penal da cuenta que la irrupción del delincuente fue sorpresiva y violenta” y reafirmó que que “el hecho de violencia a mano armada ocurrido en el local de la accionada fracturó totalmente la cadena causal y se constituyó en la verdadera causa adecuada de los daños sufridos por la víctima.”
Y agregó: “No debe olvidarse que el hecho del delincuente ha actuado en la especie como eximente de responsabilidad por haber reunido los caracteres del caso fortuito (porque) la conducta del malhechor fue imprevisible e inevitable”.
“Es sumamente difícil tomar posición en tema tan delicado. Pero la ley local y la bonaerense han adoptado un criterio que privilegia la seguridad sin armas en estos establecimientos. Los legisladores pudieron haber permitido las guardias armadas, pero no lo hicieron. ¿Cuál debería ser el temperamento o los protocolos de actuación si una guardia fuertemente armada enfrentase a un grupo como el que irrumpió en este local? Es de imaginar que podría generarse una batalla dentro del local, con la imaginable secuela de muertos o heridos dañados entre la clientela o el personal dependiente. ¿Qué diría el actor en ese caso? Seguramente diría que no había que tener guardia armada por la peligrosidad inherente. En fin, un hecho de violencia ejercido por una persona armada constituyó una circunstancia extraordinaria que sobrepasó los recaudos que se adoptan regularmente para este tipo de comercios. Es más, la ley –por razones imaginables- no permite que la disuasión sea armada. Las circunstancias de tiempo y lugar con que debe juzgarse la conducta de la demandada exigen un criterio adecuado a la realidad de las cosas”, concluyó. NR
Fuente consultada: infobae
La entrada Starbucks deberá indemnizar a un cliente al que le robaron la computadora en un local de Belgrano aparece primero en Parabuenosaires.
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