Δικηγορικό Γραφείο

Ηotels and restaurants shows anxiety about  the issue of civil liability in the event of a possible accident, as the new disease is transmitted extremely easily and no vaccine has been found. And while everyone may want to reopen, no one wants to risk compensation in the event of an accident. So what about civil liability?

Lawyer Mina Kaouni talks to www.mononews.gr about the main concerns that prevail and emphasizes that there should be a broader legal framework that will address the new data that emerged, as the current legal framework on civil liability covers only the cases we have encountered so far.

But this whole situation has not happened again, it is something unprecedented and solutions must be provided at the central level.

According to Ms. Kaouni, in order to be liable for compensation, the causal link must be proved. Specifically, we have to prove where the virus was transmitted, which is not proven, as she tells us, even in the case of the Blue Pine restaurant in Kifissia.

Today, we expect health protocols that will define the obligations of hotels, restaurants and businesses, in order to protect their customers health.

“Tourist accommodation does not have hospital specifications. This fact combined with the difficulty of finding out where and when the hotel customer fell ill, makes a clear legal framework that limits the responsibility of hoteliers in the event of a corona virus case, seems imperative. Otherwise, there will be many compensations proceedings, in which, in my view, it is difficult and maybe impossible to prove the necessary causal link to be liable for damages, in cases where health protocols have been adhered to" Ms. Kaouni said.

Do hotels have a civil liability? Can they move against customers or employees? In which case do they really have responsibility?

Hotels will operate with strict rules and protection measures this summer due to the corona pandemic. There are radical changes in accommodation, restaurants and swimming pools. Hoteliers and customers will move in a strict manner both in terms of dining areas and accommodation in the rooms.

Health protocols are being prepared for hotels, marinas, yachting, transport on tourist buses, planes, so that neither the health of the citizens, nor the reputation of the destinations, nor the health of the visitors will be endangered.

Until May 15, following the proposals of “ΞΕΕ” and “ΣETE”, the government will present a complete plan for tourism on health protocols for those arriving at tourist destinations, strengthening health structures and protocols in case of a corona virus outbreak.

The current legal framework on civil liability covers a range of cases we have encountered so far.

This whole situation has never happened before. It is something new. Solutions should therefore be provided at the central level immediately. There needs to be a broader legal framework that addresses the new data that has emerged.

There are many questions for those involved in the tourism sector, if a case of coronation occurs during the tourist's stay at the hotel or at any other tourist accommodation.

Will the hotelier be forced to quarantine his hotel for 14 days, regardless of whether the patient got the virus in his distant homeland, or on the plane, or on the beach or in a restaurant or in a café? In addition, as long as it is closed, he will have to take care of feeding his customers at his hotel, while he will not be able to get money for their stay and how many arrivals he has in that 14 days will have to find them somewhere else to stay. Will the hotelier be opposed to the possibility of huge compensation, if one of the hotel's non-genuine patients falls ill with corona virus or even loses a loved one because of it?

In the existing legal framework, civil liability in all areas of economic life stems from the provisions of the Civil Code on torts. According to the article 914 of the Civil Code, anyone who harms someone else illegally and guiltily, has an obligation to compensate him.

Also, in the most specialized provisions on tort 929 and 932 of the Civil Code in case of damage to the body or health there is an obligation of compensation from the culprit, no only for the property damage, but also for the moral damage caused to person, if a causal link with the harmful behavior of the culprit can be proved. In addition, if death is caused, there is an obligation to compensate for mental pain.

Based on the above provisions, in combination with the provision of article 922 of the Civil Code for the responsibility of a hotel employee, if it turns out that a damage was caused, many claims have been filed in the past against both owners and hotel staff.

During the summer, we as lawyers have filed lawsuits for errors and omissions in hotels that did not comply with the required security measures and, as a result, injuries, even deaths, in swimming pools, in public areas, in restaurants, etc. were caused , but also for lesser worthless acts such as losses, petty theft, etc.

After all, the Civil Code has established provisions 834-839 which introduce the responsibility of hoteliers for any damage, destruction or removal of items brought by customers to the hotel, which protects the customer from his inability to prove the conditions of the loss and on the other hand from the fact that the client's things are included in the influence and financial benefit of the hotelier businessman

In all these cases, except from the liability, if the causal link between the act and the result was proved, the client was justified and the person responsible for the act or omission was sentenced in civil and / or criminal proceedings.

So far, the legislative and jurisprudential framework has been quite clear.

However, in the civil liability of the owners of tourist accommodation for compensation to natural persons, if people become infected by Covid-19 disease during their stay in an accommodation or during their work in it, things are more complicated and there is not a legal field at the moment.

The tourist accommodation does not have hospital facilities. This fact in combination with the difficulty, as mentioned above, to find out where and when the hotel customer fell ill, makes the creation of a clear legal framework that will limit the responsibility of hoteliers in case of a corona virus outbreak, a necessity.

Otherwise, many compensation lawsuits will be filed in which, in my view, it is difficult and impossible to prove the causal link in order to be liable for compensation in cases where health protocols have been adhered to.

Therefore, there is an inescapable need to impose health protocols as soon as possible, to eliminate the ultimate limit of the responsibility of hoteliers.

However, there must be obedience to the framework of health protocols in a strict way and without discrimination, because we all know that there is a co-operation between large-scale arbitrariness and power. The issue, many times, concerns the health of citizens, workers, of an entire island and, therefore, any case of such illegal practices must be revealed and punished.

Therefore, the civil liability of the owners of tourist accommodation as persons but also of the hotels as businesses for a corona virus outbreak, should be strictly limited to the fact that the health protocol to be established has not been defaulted.

If, in case of a lawsuit filed by a client who fell ill with COVID-19, the hotel management proves both to the authorities and to the court, , that it complied with all the health protocol to be established and took the necessary measures, it should acquitted of all civil, administrative and criminal liability.

If no way will found to prevent the liability for corona virus cases, it's not just tourist accommodation that won't open.

The stores from which raw materials are procured, will not open, the dry cleaner, will not open. The gardener, the cleaners, etc, are not going to work. Restaurants, cafes, rental cars that customers would go to, are not going to work too. As a result, the residents of tourist destinations who lives from tourism, will be found with no income.

Already, the damage is huge because of the unemployment and layoffs of many seasonal tourism workers, that many large hotel businesses did, unable to "withstand" any decline in huge profits from previous years.

What about Airbnb?

The short-term lease is governed by a legal framework as a new form of lease, and as you know, it is an economic phenomenon whose turnover in our country in 2018 reached 1.98 billion euros, with more than 180 million euros revenue in the Greek public. It is now 10-15% of our tourist product.

A few days ago, the Panhellenic Federation of Tourist Accommodations sent proposals to the Prime Minister and the competent ministers for the operation of the accommodation with strict hygiene rules. Unfortunately, the proposals also include the suspension of short-term rental accommodation, such as Airbnb.

Traveling into this ‘’new world’’ will be very different and the tourist product must be shaped accordingly.

Travelers will prefer options that are closer to their home, safer and more economical. At the same time, they will crave for something they feel they’ve lost: contact with other people. When Airbnb-type platforms were launched, they focused on integration and contact with other people.

This crisis has helped us to focus even more on our foundations, our basic principles, the element that makes short-term leases a quality tourist product. The people next door who are hosting other people at their homes. Therefore, they have their place in the Greek tourist market and no one can deprive them of it due to a poorly understood competition.

This new era, however, requires the fitting of all sectors to the new requirements.

Fixed practices that short-term hosts had, have to change in order to offer more attractive and safer accommodation.

This post-covid-19 era is challenging the host STR community that has proven that it can meet the challenges wherever they come from.

And in this area, health protocols will apply at all stages that affect the cleanliness of a space. Starting with the training of staff, the specifications of cleaning products and reaching the arrival and stay, whether there should be successive leases, etc.

Of course, the problems that existed in the short-term leases are expected to intensify, especially those related to the apartments in the apartment buildings without autonomous entrance, since the other tenants in the apartment building will now face the constant alternation of tourists in the apartments with fear and more suspicion.

What we have mentioned above about the hotel liability, also applies to short-term leases. As a result, we expect the protocols and the legal framework that will face this condition.

It should be noted that Airbnb claims to cover liability of up to $ 1 million (in order to prevent guests from lawsuits), but I'm not very sure that covid19 can be covered (for example, some insurance companies do not cover it). Even more, since she fired 25% of her staff, that is, almost 1900… employees.

- Are restaurants responsible? In which case? In the case of Blue Pine, in which it is rumored that some people fell ill, is the restaurant legally responsible?

Until today, there is no scientific data on viruses that can cause respiratory diseases through food or packaging. However, precautionary measures should be taken by the restaurant services to limit droplet transmission through close contact between staff and customers.

In any case, all food hygiene rules apply throughout the sector.

The first measures have already been announced, such as:

  • Keeping distances between kitchen workers
  • Prohibition of entering the kitchen area for those who do not work. In case this cannot be avoided, the visitor should be provided with appropriate personal protective equipment, which will be available at the entrance of the kitchen.
  • Maximum number of customers allowed
  • Distance between the tables of the restaurant
  • Maximum number of people at a table, 4 people per 10 square meters, except for families and people connected to each other
  • Maintaining the required distances by costumers during their waiting at the entrance of the restaurant.

What we have mentioned above about the hotel liability of hotels in case of  a corona virus outbreak, applies mutatis mutandis, in restaurants too, as they must adhere to health protocols.

Now, regard to the blue pine restaurant where the party took place at the end of the first  days of March and we unfortunately had two deaths and many cases of corona virus, my view is that it is particularly difficult to prove how the whole situation turned out, in order to attribute responsibilities, when the party took place before quarantine.

However, there are different questions of both moral and logical nature:

The World Health Organization has been warning since the beginning of March about the spread of the virus and called its member-states to take protective measures. Worldwide, we had more than 106,000 cases in more than 100 countries and more than 3,000 deaths in those days.

Both Mr. Dimopoulos, who gave the party, as a rector and professor of medicine, and the owner of the restaurant knew this.

So, why did they choose social events, instead of protecting the most valuable asset, which is health, in the face of a dangerous epidemic favored by overcrowding. They are currently arguing with each other.

The measures and health protocols with which Greece will restart its tourism industry should be followed by a clear and detailed legal arsenal, so that both businesses and customers feel safe and covered.

Even in this treat, it is difficult to reach a common European path.

-What is the civil liability of companies if an employee falls ill with coronavirus?

According to the definition of Civil Liability as a legal term, when someone causes by act or omission, negligence, bodily harm and / or material damage to a person, he is obliged to restore it.

The general meaning of this definition does not clearly define the requirements that can be set by the affected party against the offender who caused the damage. This is done individually, later, when the case goes in court.

Therefore, there are many types of civil liability such as Professional Civil Liability, General Liability, Employer Liability, Product Liability, in case of a manufacturer, importer or trader for damages to be paid to third parties for bodily harm or / and material damage caused by the use of a defective product and many more.

Of course, around these risks, many insurance activities have been developed that cover the insured against these risks.

In the event that an employee falls ill with corona virus, the provisions of the labor law on the illness of the employee are activated.

 If the employee’s diagnosed as a carrier of the corona virus, even if he or she has not yet developed symptoms of the disease, has the right not to work.

The employee must be absent from work and notify the employer in any way of his illness, providing, within a reasonable time, a relevant medical certificate regarding the type and duration of his illness.

Since then, he has been entitled to both stuff supplies (medical care) and cash supplies (salary and sickness benefit). The obligation to pay the salary does not exist when the company has suspended (in whole or in part) its activity due to an order of a public authority to deal with the transmission of COVID-19.

Generally, and specifically due to Covid19, the employer has an obligation:

  • To take all necessary measures to ensure that workers and other people present in the workplace are protected from any hazards that may threaten their health or physical integrity.
  • To apply every suggestion of the technical and health inspectors of labor and generally to facilitate their work within the company.
  • Supervise the proper implementation of occupational health and safety measures.
  • Take collective measures to protect workers.
  • To notify employees of occupational hazards from their work.
  • Encourage employee training in occupational health and safety.
  • Inform employees about the applicable legislation occupational health and safety and how it is implemented by the company.
  • To draw up a program of preventive action and improvement of working conditions in the company. In the above context, in case of any exposure of an employee to a risk factor (visit to a country at risk, contact with patients, etc.), he must not accept the employee's services in order to protect other employees from the risk of spreading of the disease.
  • To take measures of environmental and individual hygiene, such as regular ventilation of workplaces, maintenance of ventilation - air conditioning systems and cleaning of surfaces, appliances, etc., according to the instructions of EODY.
  • To provide appropriate means of personal protection (M.A.P.) and supervision of their proper use.
  • Finally, given the stress that this situation may cause to an employee, the employer should ensure that the mental health of each employee with the relevant symptoms is maintained (including: short-term leave, psychological support).
  • In case of violation of the above obligations of the employer, the employee has the right to delay, now of course the other very important compensation rights if it turns out that their violation led directly to the report and ultimately to the disease.

The right to suspend the employee's work, exists not only when the employer delays the payment of his due remuneration, but also when he does not fulfill his legal or contractual obligations to the health and safety measures or by his behavior the employer insults the personality of the employee.

According to the right to defer work, the employee can declare to the employer that he is terminating his employment until the employer complies with his legal obligations (which consist in, in any way, protecting the health of his employees and taking any necessary measure in this direction) and to refrain from the duties of his work.

Source: www.mononews.gr

We’d like to thank Marina Protonotariou and tmononews.gr, which gave us the opportunity to answer and raise our concerns (in view of the anticipation of health protocols) regarding the thorny issue that will arise with the civil liability of hotels, in general tourist accommodation, short-term leases, catering and leisure facilities,  in case of infection by Covid19, during their stay in these places or their work in them.