Original article: Estacionamiento no es tierra de nadie: Parque Arauco deberá indemnizar por robo de auto
Santiago’s Seventeenth Civil Court Orders Shopping Center to Compensate for Vehicle Theft from Its Parking Facilities
The Seventeenth Civil Court of Santiago has mandated Parque Arauco S.A. to compensate an insurance company for the theft of a vehicle that occurred in the parking area of one of its establishments. The ruling, issued by Judge Rocío Pérez Gamboa, highlighted that the mere act of a vehicle entering the premises forms a deposit contract, whereby the provider assumes essential responsibilities for «security, surveillance, and custody.»
The incident dates back to March 18, 2023, when L.A.M. T. parked their vehicle in the shopping center’s parking lot. That same day, the car was stolen from inside the facility and later dismantled, resulting in a total loss.
The insurer Zenit Seguros Generales S.A., fulfilling its policy obligations to the affected party, proceeded to cover the loss. Subsequently, exercising its legal right under Article 534 of the Commercial Code, the company filed a lawsuit against Parque Arauco for breach of contract.
The shopping center’s defense presented several arguments, all of which were firmly rejected by the judge. One principal argument claimed the insurer could not pursue action, asserting that the rights arising from a deposit contract were intuito personae (personal to the individual). Judge Pérez Gamboa dismissed this claim.
“What is recognized is the subjective nature of consumer status, while always acknowledging the subrogation of rights, credits, actions, and generally all acts with patrimonial content that the qualified recipient could potentially initiate, resting in the assets of the subrogating party, sufficient elements to dismiss this defense,” she stated.
The core of the legal dispute revolved around the nature of the relationship created upon entering the parking facility. The ruling adopted the doctrine of Professor Marcelo Barrientos Zamorano to define the agreement.
“As a result of this mix of rules from different types of contracts and provisions of the Consumer Protection Law, a contract arises wherein a vehicle is deposited in a foreign space, the use and enjoyment of which is temporarily ceded. The consumer depositing the vehicle is obliged to pay a fee or, in the case of free parking, merely to park the vehicle in designated spaces. The provider, in turn, guarantees the security, surveillance, and custody of the vehicle while it remains within its premises,” she described.
With this basis, the judge concluded: “The existence of the contract as the primary requirement for contractual civil liability has been fully established, thus discarding this defendant’s allegation.”
Once the contractual relationship was confirmed, the court focused its analysis on the breach. Parque Arauco presented evidence regarding the general existence of a security service and protocols approved by Carabineros (OS10 Operations Directive).
However, the judge found this evidence insufficient and abstract. The ruling emphasized that the company “has not provided adequate evidence concerning its duty of custody, security, and surveillance.”
Moreover, it determined that “no evidence was presented regarding the security and surveillance activities deployed on the specific date, nor an explanation of how the vehicle was able to leave without displaying or paying the appropriate parking ticket.”
This aspect is crucial, as the ruling shifts the burden of proof to the shopping center as the custodian. With the theft occurring within its premises, culpability is presumed.
“The defendant’s breach must be presumed culpable,” asserts the text, invoking Article 1547 of the Civil Code. Additionally, the fact that the robbery was perpetrated by third parties does not absolve them. The judge applies the standard of “care of a good family man towards property or businesses that belong to them” and rhetorically questions what level of care the shopping center would employ “if it were their own assets,” stating they cannot disassociate from the occurrence of these events.
The decision concludes with a reflection on the business model, emphasizing that parking, even if free, is a complementary and risky activity that the provider undertakes voluntarily. “And it assumes this, whether through dissuasive measures, custody actions, or through insurance or damage repair that may eventually occur, based on probability assessments,” the judge ruled.
With all elements of contractual responsibility established (capacity, breach, damages, causal link, and fault), the Seventeenth Civil Court fully upheld the lawsuit.
The exact amount of compensation, covering the cost of the brand new vehicle purchased by the insurer to replace the loss (with applicable legal deductions), was determined in a separate case and under confidentiality, as part of a review of associated bank accounts.
This ruling clearly establishes that shopping center parking lots are not “lawless zones,” but rather spaces where the duty to protect customers’ property is an unavoidable legal and contractual burden.
