When the Victim’s Fault or a Third Party’s Conduct Reduces the State’s Liability

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

The State’s civil liability is strict, but it is not absolute. The conduct of the victim or of a third party can break the link between government action and the harm, reducing the public authority’s duty to pay compensation or eliminating it entirely.

Strict liability and the myth of automatic compensation

The starting point is Article 37, paragraph 6, of the Federal Constitution. It provides that public-law entities, and private-law entities that provide public services, are liable for damage their agents cause to third parties, regardless of fault. Brazilian law follows the administrative risk theory: whoever carries out an activity on behalf of the State assumes the risk of the losses that result from it, and the victim does not need to inquire into the agent’s state of mind.

Strict, however, does not mean automatic. The victim does not have to prove the agent’s intent or negligence, but still must show three elements: the government’s conduct, the harm suffered, and the causal link between them. That last link, the connection between cause and effect, is where the public authority concentrates its defenses. Attacking causation is the natural way to reduce or eliminate a judgment.

The difference from the full risk theory is decisive. Under full risk, an exceptional standard reserved for environmental damage and nuclear activities, no defense helps the party that caused the harm. Under administrative risk, the general rule in the Brazilian system, certain causes are accepted as breaking or weakening the causal link. Recognizing this difference is the first step toward honestly assessing how viable a compensation claim against the Administration really is.

Understanding this framework avoids two mirror-image mistakes. On one side is the citizen who believes he is entitled to compensation for any harm suffered in contact with a public service. On the other is the public manager who assumes the Administration is immune whenever he invokes the word “unforeseen.” Between these extremes, the law places a concrete examination of causation and of the circumstances capable of interrupting it.

Sole fault of the victim: a complete break in causation

The most radical defense arises when the injured person is the sole cause of the result. If the harm stems only from the victim’s own behavior, the causal link disappears, and with it the duty to pay compensation. The State is not liable for what it did not cause, even if the loss occurred in a public space or during a public service.

Examples are common. A pedestrian who crosses a warning barrier and enters a closed-off area, a driver who barrels through a properly set-up police roadblock, or a private individual who tampers with public equipment despite express warnings is the sole author of his own loss. In these situations, the government’s presence is merely the occasion for the harm, never its legally relevant cause.

One methodological warning is in order: sole fault is not presumed; it must be proved. Simply alleging that the citizen behaved badly is not enough to release the State. The State must show, through documents or witnesses, that the injured person’s conduct was the only source of the harm, with no concurrent failure in the public service.

The procedural consequence is severe for anyone litigating against the Public Treasury (Fazenda Pública). Even where real and serious harm exists, proof that the victim was the sole cause extinguishes the compensation claim. That is why a frank assessment of the injured person’s conduct, made before filing suit, avoids stillborn claims and predictable disappointment. A good case review begins by asking who actually caused the event.

Responsibility does not always rest entirely with the victim or entirely with the State, however. There is an intermediate zone, very common in litigation practice, in which both contribute to the harmful result.

That last link, the connection between cause and effect, is where the public authority concentrates its defenses.

Contributory fault: when the duty to compensate is divided

When the victim contributes to the harm without being its sole cause, the result is contributory fault. The causal link is not broken entirely; it is shared among those involved. The duty to compensate remains, but it is reduced in proportion to each party’s share in the event, which directly affects the amount of the judgment.

The legal basis is Article 945 of the Civil Code, which requires compensation to be graded according to the seriousness of the victim’s fault compared with that of the party who caused the harm. Applied to State liability, the rule allows the judge to deduct from the amount owed the portion attributable to the injured person’s own conduct.

Consider a user who falls on a poorly maintained public road but was moving at an unsafe speed and paying minimal attention to the path. The service defect does not disappear, but the individual’s recklessness reduces the recoverable amount. For the lawyer, mapping this combination of causes is decisive: it determines not only whether the lawsuit is viable, but also the realistic size of the economic benefit it can achieve.

Acts of third parties, force majeure, and fortuitous events

The conduct of another person, a stranger to the relationship between victim and State, can also eliminate liability. When the harm results solely from a third party’s act, with no meaningful contribution from the public authority, the causal link shifts outside the government’s sphere. The third party, not the Administration, becomes the one responsible for compensation.

Alongside third-party acts are force majeure and fortuitous events (caso fortuito). Both refer to events beyond the agent’s control, but they produce different effects depending on their origin. An external fortuitous event, one foreign to the administrative activity and truly irresistible, breaks the causal link and eliminates the duty to compensate. Exceptional storms and unforeseeable acts of violence typically illustrate this category.

The situation is different with an internal fortuitous event, tied to the risk inherent in government activity. Foreseeable maintenance failures, equipment defects, and organizational shortcomings are part of the risk the public service assumes and therefore do not release the Administration. The higher courts tend to reject claims of unforeseeability when the event, though unwanted, was to be expected within the normal routine of the service.

In practice, the line between internal and external fortuitous events is the main point of friction in these disputes. The government’s defense tends to label as external and unavoidable what actually resulted from the disorganization of its own service. It falls to the injured person to show that the event belonged to the field of risks the Administration had a duty to manage and prevent, which returns responsibility to the public authority.

The burden of proof and a realistic reading of the case

How the burden of proof is divided reinforces the importance of these defenses. Because liability is strict, the injured person must prove the harm and the causal link, without arguing the agent’s fault. The public authority must show the cause that breaks or weakens that link, whether the victim’s conduct, a third party’s act, or an irresistible external force.

This dynamic explains why seemingly solid claims end up rejected. Significant harm, considered alone, does not guarantee a judgment in your favor. What decides the outcome is the integrity of the causal link and the strength of the defenses the State manages to prove in the record. The evidence, not the intensity of the loss, drives the result.

Assessing this picture in advance protects the citizen from unrealistic expectations and guides litigation strategy. Gathering evidence of the government’s conduct, anticipating the likely defenses, and gauging any contributory fault are the steps that separate a consistent claim from a legal gamble doomed to fail. A technical reading of causation, therefore, is worth more than the sheer size of the harm.

Frequently Asked Questions

Does the State’s strict liability mean it always pays compensation?

No. Strict simply means the victim does not have to prove the public agent’s fault. The public authority can still defend itself by showing that the harm resulted from the injured person’s sole conduct, a third party’s act, or an irresistible external force. Once one of these causes is proved, the causal link is broken and the duty to compensate is eliminated.

What is the difference between sole fault and contributory fault of the victim?

With sole fault, the injured person is the only cause of the harm, which breaks the causal link and frees the State from any payment. With contributory fault, the victim and the public authority both contribute to the result, so compensation remains but is reduced in proportion to each one’s share, under Article 945 of the Civil Code.

Is the State liable for harm caused by a fortuitous event?

It depends on the origin of the event. An external fortuitous event, foreign to government activity and truly unavoidable, excludes liability because it breaks the causal link. An internal fortuitous event, tied to the risk inherent in the public service, such as foreseeable maintenance failures, does not eliminate the duty to compensate, because it is part of the risk the Administration assumed by providing the service.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.