A RESPONSABILIDADE CIVIL DO ESTADO POR OMISSÃO: ANÁLISE DAS TEORIAS APLICÁVEIS E DOS PRESSUPOSTOS JURÍDICOS DA RESPONSABILIZAÇÃO

Abstract

This study analyzes the civil liability of the State for omission, its applicable theories, and legal requirements, based on prevailing doctrine, legislation, and case law. It is demonstrated that, regarding omissive acts, State liability is objective, grounded in the theory of administrative risk, requiring a specific omission (violation of a concrete legal duty to act) and a causal link between the inaction and the damage. The distinction between generic and specific omission is fundamental for liability, and proof of fault is not required. The theory of strict risk is rejected as a general rule for State omissions, applying only in exceptional cases. In the context of penal custody, the State is objectively liable for the death of detainees in the event of failure to observe the specific duty of protection. In cases of environmental damage, regulatory omissions equate the State to the polluter under the logic of administrative risk, but not under the strict liability of the direct polluter. In the healthcare sector, specific omissions (such as failure to provide essential medications or ICU beds) give rise to objective liability, and the doctrine of “availability of resources” does not justify violation of the minimum existential standards, aligning jurisprudence closer to the strictness of strict liability. It is concluded that State liability for omission in Brazil is objective, conditioned upon verification of the State’s omission with respect to a specific duty.