There is a general principle of not causing harm to another, under Spanish Law; thus, when a natural person or a legal entity causes damage to another, the responsibility of repairing this damage arises, and the person who had suffered the harm has to be financially compensated by the one who caused it (art. 1902 of Spanish Civil Code). In the case of Public Administration, this obligation to compensate the harm caused, is called patrimonial liability of the Administration.
What to do in a fall in the street case in Spain
One of the closest situations to the citizens when it is possible to sue the Administration for damages, is when we have been harmed by a fall in the street, because of the poor condition of the surface, the existence of steep slopes not properly marked, detachment of tiles or sewers, or any other similar situation.
However, the liability is not automatically determined. Initially we will need to prove that there is a causal relation or correlation between the performance of the public service and the damage caused. In this regard, even though our legislation on this matter establishes that the responsibility of the administration is objective, judges had modulated the objective character of it by refusing that the Administration is always liable for any damage caused just because is the authority who holds the titularity of the service. Judges affirm that we would be wrong if we concluded this, because we would be turning the Administration into a universal insurance entity of any risk, in order to avoid any damage to the citizens. In other words, for instance in the case of villages or towns where there are more chances for these situations to occur, even though the City Council is the responsible of the maintenance of sidewalks, pavement and others elements in the street, it will not be liable in all the cases for pedestrian falls.
So in general, the criteria which we find on judicial decisions and books of authority is that we can predicate the objective responsibility of the Administration, but this responsibility can also be nuanced or excluded under some circumstances:
- When the citizen has the duty to withstand the damage (it is normally given as an example the payment of taxes or fines). In the case of falls in the street, our High Tribunal has asserted that there is no legal provision that enforces the citizen to sacrifice himself for the good of the society neither legal rule which sets that the citizen must bear this kind of load.
- When the hazard cannot be prevented according to the knowledge of science, or the risk inherent to the public service has not exceeded the standards of security that can be demandable according to social conscience. In the case of falls, we will need to prove in the event of a constructed element that it complies with the regulations, and in the event of elements that are causing a risk only temporary (as fallen trees, raised floors) that the existence of the hazard is properly marked. To prove it, we will always need a report of an expert, who verifies this point, after examining the area where the fall happened.
- When the citizen interferes in the causal relation with a negligent conduct. In that case, we must distinguish if the lack of diligence has destroyed completely the causal correlation (in this case, the responsibility of the Administration is excluded) or there is contributory fault (in this case, the damage to be compensated is reduced; the Administration will only be liable for the percentage of responsibility that has to be determined).
Having said that, we need to consider what is the diligence that must be demandable to a citizen in the use of public services. It is not easy to answer that question, but it has been interpreted that it will be the reasonable care that in normal conditions, could be demandable to the average citizen. This reasonable care cannot attend to the limitations that some citizens may have (like age, physical limits…) because the public service is addressed to all citizens. For that, unless we consider a public service specially designed to persons with some kind of limitation, it will be reasonable to think that the more limitations the citizen has, the more harmful consequences has to bear, in respect of the average citizen who is not affected with those limitations.
Finally, to combine the different kind of flaw existing in the street with the diligence of the citizen, and only as an example exposure, because the casuistry is infinite, and we must always consider the particular case, we could conclude that the causal relation will be destroyed in the following situations:
- If the flaw existing in the street is too manifest that the minimum diligence of the citizen could have avoided the damage, excluding in this case the responsibility of the Administration.
- If the flaw existing in the street is pretty obvious, but the evidence is shown suddenly, preventing the citizen to be able to react on time. In that case, it will be contributory fault.
- Situations of little flaws which would not affect to the reasonable care which is demandable to the citizens, and, consequently, excluding the responsibility of the Administration.
Once we concluded that the Administration is responsible for the fall of the citizen, wholly or partly, in the claim letter, we should detail all the damages that we have suffered and quantify the compensation resulted for those damages. It is important to take into account that the claimed damages must be real and not potential and individualized in a person or a group of persons.
