- Tribunal de Apelación en lo Civil y Comercial, Sexta Sala
- Nathalia Elizabeth Ozorio Ruíz Díaz v. Empresa Automotores Guaraní S.A.E.C. E I. (A.G.S.A.) and others.
TRANSPORTATION CONTRACT - BEWEEN A PARAGUAYAN PUBLIC TRANSPORTATION COMPANY AND PARAGUAYAN PASSENGER – REFERENCE TO UNIDROIT PRINCIPLES AS A MEANS TO INTERPRET APPLICABLE DOMESTIC LAW (PARAGUAYAN LAW)
TRANSPORTATION COMPANY UNDER OBLIGATION TO PROVIDE SECURITY MEASURES TO AVOID LOSS TO PASSENGERS – AMOUNTS TO DUTY OF BEST EFFORTS - REFERENCE TO ART. 5.1.4 UNIDROIT PRINCIPLES TO DETERMINE NATURE OF SUCH DUTY – DAMAGES TO BE PAID IN CASE OF ACCIDENT CAUSING LOSSES TO PASSENGER
In the present dispute, CLAIMANT filed a civil lawsuit against RESPONDENTS, a public transportation company and the driver of a bus owned by the company, seeking compensation for the losses that CLAIMANT suffered from an accident caused by the RESPONDENTS.
The First Instance Judge ruled in favor of the CLAIMANT, finding that RESPONDENTS were to be held liable for the accident, and consequently had to compensate CLAIMANT for the losses suffered.
Both parties filed an appeal against said resolution. CLAIMANT argued that the amount granted by the Judge as damages was not enough to properly compensate the losses suffered. On their part, RESPONDENTS insisted that their liability to compensate CLAIMANT was not demonstrated in trial, since it was CLAIMANT´s reckless behavior that caused of the accident.
To determine whether RESPONDENTS were liable for the losses suffered by CLAIMANT, the Appellate Court proceeded to examine the nature of the public transportation service. In that regard, the Court considered that the lawsuit derived from a contractual responsibility and not from an extra-contractual liability or tort.
A public transportation service contract implies an obligation of the transportation company to provide security measures, which constitute itself a duty of best efforts assumed by RESPONDENTS in relation to its passengers. To determine the extent of the duty of best efforts, the Appellate Court mentioned the UNIDROIT Principles, Art. 5.1.4(2). After deciding that the transportation company failed to comply with its duty of best efforts, the Court determined that RESPONDENTS were indeed liable for the damages claimed by CLAIMANT in the lawsuit. Additionally, the Court considered that the driver failed to take the necessary precautions while doing his job, making him subjectively responsible for the accident.
Consequently, the Appellate Court confirmed the judgment of the First Instance Judge, while increasing the amount granted in favor of CLAIMANT for loss of opportunity, inability to work, as well as physical and moral damages.