The public administration liability exists without any contract between the citizen and administration, requiring only a harmful outcome, regardless, as we saw in private law, of any guilt or negligence. That means, this responsibility is objective, regardless of guilt or harmful intention from the authorities, officers and agents of the government requires effective and real loss or damage that is a result of normal or abnormal functioning of public services in a direct relation cause and effect, but it appears based on the technical concept of “injury” understood as unlawful damage or injury sufferer that someone has no legal duty to bear.
Public administration liability is ruled by Articles 139-146 of the Law 30/1992 of 26 November on the Legal Regime of Public Administrations and Common Administrative Procedure, amended by Law 4/1999 of 13 January.
There are three situations in which liability may fall upon administration, depending on who is liable for damages, which are:
- When the cause comes from the executive. The damage is caused by normal or abnormal functioning of public services managed by the administration. The principle of accountability comes under Article 106.2 of the Spanish Constitution, general and unique principle for all public administrations.
- When the cause comes from the legislature. Article 139.3 of Law 30/92 states that “public administrations must compensate citizens for the implementation of legislative acts that come from not expropriative acts and that citizens do not have a legal duty to bear, when those acts legislative themselves provide so and also in the terms that specify such acts.”
- When the cause comes from the judiciary. Regulated in article 139.4 in Law 30/92 and article 121 of the Spanish Constitution. Three assumptions allow to liability:
o Judicial error.
o Abnormal operation of the Justice Administration.
o Improper preventive imprisonment.
1. The damage must be real, individualized and economically assessable.
2. It has to be consequence of normal or abnormal functioning of public services in a direct, exclusive and immediate relation of cause and effect, whatever their origin was.
3. It has to be not caused by force majeure and the right to claim must not be expired by the lapse of time that the Law 30/92 sets.
A claim against the Public Administration for liability must have a direct, immediate and exclusive relation of cause and effect between the act of the administration and the damage that this act has created, and there must be an act or an omission of Public Administration and also a harm that arises that is actual, real, financially assessable and individualized, what represents the existence (active or passive) of an administrative action, with harmful outcome and relation of cause and effect between this and this; the proof corresponds to the claimer, while it is attributable to the Administration the proof when there is existence of force majeure, where it is alleged as grounds for exemption.
Accidental falls in the public thoroughfare are the paradigmatic example of when is the executive who causes the damage. Sidewalks in disrepair due to misplaced tiling or defects in these tiles, works in the street no signaled and so on, may cause pedestrians fall and cause injuries or property damages that they do not have a duty to bear, and producing liability of the public administration, for the injured then emerges the right to complain.
The compensation to be received in a fall in public thoroughfare is claimed directly to the Administration through what is called a patrimonial claim, i.e. to the City Council that caused the damage, there is a legal term of a year to claim these injuries from the day the injured is discharged from rehabilitation. In case that the Administration would not take care of the damages created, the claim shall be referred through a direct procedure against the administration or, in case there is an insurance company, through a direct civil action against the company under the Insurance Contract Law.
At COCA ADVOCATS we give all our knowledge, effort and expertise to enable the Administration accountable for all damages caused to the injured under its responsibility. We have the best group of specialists in each field: medical specialists, assessment in bodily damage and biomechanics, social workers, rebuilders industrial accidents engineers, technicians and senior architects, specializing in property damage and fires, economists, actuaries, psychologists experts… who work closely with us to achieve a high rate of success given the seriousness of the situation that suffers such injured and also the guarantees to cover every field of science necessary to investigate and prove all damages caused to these people.
We are expert lawyers in civil liability.
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