Did the government cause the damage? The State is liable for the damage

When must the city or the State pay compensation?

The Brazilian Constitution provides that the government and private companies providing public services are liable for damage their agents cause to third parties. In these cases, the victim does not need to prove the public servant's fault, but must show the damage and its link to the government's action. In cases of omission, such as lack of road maintenance, it is common to discuss whether the service failed. The deadline to claim against the government is 5 years.

What the law says

When compensation is due

Source: Brazilian Federal Constitution, art. 37, § 6; Decree 20.910/1932, art. 1.

What is your case?

Situations the firm handles

Step by step

How the firm works

1. Case review. We check what happened, who is liable for the damage and the deadline to claim.
2. Evidence. We guide you on reports, photos, police report, receipts and witnesses.
3. Settlement or lawsuit. Notice seeking a settlement and, if there is no solution, a compensation lawsuit.
4. Follow-up. Expert examination, hearings and collection of the amount awarded.

Practical guide

From the day of the damage to payment: what changes when the defendant is the government

Suing a city, a State or the Federal Government follows its own rules, different from a lawsuit against a private party. Some appear right at the start, such as choosing who should be sued. Others only come up at the end, when it is time to be paid. Knowing this path avoids surprises and helps you keep the right evidence early on.

What to do in the first days

• Record the place before it changes. Potholes are filled and trees are removed within a few days. Photograph the exact spot, with signs, house numbers or landmarks that allow it to be located, and take one photo from afar and another up close.
• Identify who is responsible for that place. An urban street usually belongs to the city. A highway may be state, federal or under concession to a private company. The kilometer marker and the agency's website help find out. Suing the wrong defendant delays the case.
• Write down who saw it. Names and phone numbers of witnesses are very valuable, because the memory of those who saw it fades quickly.
• Keep all expenses. Towing, repairs, medical visits, medication and days off work should have an invoice or receipt.

Administrative claim and the five-year deadline

Before the lawsuit, a compensation claim can be filed with the agency itself. This request has a little-known effect: while the administration reviews it, the limitation period is suspended, from the date the request is filed (Decree 20.910/1932, art. 4 and sole paragraph). So keep the receipt with the filing date.

Another rule in the same decree deserves attention: when the limitation period is interrupted, it starts running again for half the period, and it can only be interrupted once (arts. 8 and 9). Those who leave the case idle for years after a first step may find they have much less time than they thought. For private companies providing public services, such as power, water and highway concessionaires, the law also sets five years as the deadline to claim compensation (Law 9.494/1997, art. 1-C).

Who the lawsuit is filed against

Victims often want to sue the driver of the official vehicle or the public servant who made the mistake directly. The Brazilian Supreme Court (STF) held, in Topic 940 of general repercussion (RE 1.027.633), that the lawsuit must be filed against the State or against the private company providing the public service, and that the agent who performed the act is not a proper defendant. After being ordered to pay, the government can recover from the servant what it paid if they acted with intent or fault.

Small claims court, RPV and precatório

Cases worth up to 60 minimum wages against States, the Federal District and cities can be handled by the Public Treasury Small Claims Court (Law 12.153/2009, art. 2). Against the Federal Government, the limit of the Federal Small Claims Court is also 60 minimum wages (Law 10.259/2001, art. 3).

How you receive depends on the amount awarded. Smaller amounts are paid by small-value payment request (RPV), within 60 days after the judge's request. Amounts above the limit go into the precatório queue. At the federal level, the RPV limit is 60 minimum wages (Law 10.259/2001, art. 17, § 1). States and cities can set their own limit by law. Until they do, the limit is 40 minimum wages for States and the Federal District and 30 for cities (Law 12.153/2009, art. 13, § 3). Those with a credit slightly above the cap can waive the excess to receive by RPV (art. 13, § 5). The decision depends on the amount involved and how long precatórios take with that entity.

A hypothetical example

A motorcyclist falls into an unmarked pothole on a city avenue and breaks a wrist. On the same day, a friend photographs the spot and writes down the contact details of two people who stopped to help. Three days later, the pothole is filled. The motorcyclist keeps the motorcycle repair invoices, the physiotherapy receipts and the sick leave certificate. He files a compensation claim with the city and, with no answer, sues the city in the Public Treasury Small Claims Court, with the photos taken before the repair as the main evidence of the road's condition.

Common questions

Frequently asked questions