Da teoria da irresponsabilidade à omissão específica : uma análise jurídico-evolutiva da responsabilidade civil do Estado Brasileiro sob a ótica da jurisprudência do TJ-SE

Abstract

Civil liability encompasses the field of civil law that studies the imposition of the duty to compensate, a branch of significant importance in civil procedural application, especially with the advent of the risk theory and objective liability. Once an illicit act occurs, a duty emerges to compensate the harmed party, aiming to restore them to the status quo ante—that is, to their condition prior to the damage—imposing upon the perpetrator an obligation to repair the harm precisely as it occurred. However, as inherent to legal science, this matter has not remained static over time, undergoing profound legislative and jurisprudential transformations, particularly concerning State liability for actions carried out by its agents. Initially immune from liability for damages caused to private individuals, the increasing incidence of injuries resulting from public authorities necessitated the creation of a doctrinal and jurisprudential framework allowing lawsuits against the government. Alongside historical and political changes experienced by European countries, civil and administrative law evolved to permit the State to be held accountable in lawsuits seeking compensation for illicit acts committed within the scope of governmental activities, imposing upon it the obligation to indemnify under private law rules. With the advent of the Industrial Revolution, the emergence of the Welfare State, and the consequent expansion of public duties, there also arose a necessity for greater evidentiary flexibility in litigation against the State regarding the subjective element of civil liability—a transition culminating in the abandonment of fault requirements and giving rise to the Administrative Risk Theory, still prevalent in the Brazilian legal system today. A distinct legal framework emerged for acts of the State, which could now be challenged for any damages incurred during the performance of governmental functions, provided a pertinent connection exists between them, even allowing for liability in cases of omission under specific circumstances. The transition between the developed theories is the object of analysis in this paper, conducted through documentary and jurisprudential research.