Davi Madalon Fraga

“Highway concessionaires are liable, regardless of fault, for damage resulting from accidents caused by the presence of domestic animals on the roadway, applying the rules of the Consumer Protection Code and the Concessions Law”: this was the thesis established in Topic No. 1,122, under the repetitive appeals procedure, by the Special Court of the Superior Court of Justice on August 21, 2024.

The opinion of Reporting Justice Ricardo Villas Bôas Cueva in Special Appeal No. 1908738 – SP (which was followed unanimously by the panel) addressed 5 main grounds:

1. Application of the Consumer Protection Code (CDC): The justice stressed that the CDC rules apply to public service concessionaires, including highway concessionaires. Under the CDC, concessionaires are obliged to provide adequate, efficient and safe services.
2. Strict liability: The liability of concessionaires is strict, meaning they are liable for damage caused regardless of fault, based on the theory of administrative risk. For such liability, proof of the damage and of the causal link with the concessionaire’s activity is sufficient.
3. Principle of the primacy of the victim’s interest: The opinion emphasizes that, in accordance with the principle of solidarity and the primacy of the victim’s interest, compensation for damage must be guaranteed, regardless of whether the victim can identify the owner of the animal that caused the accident.
4. Duty of oversight and prevention: The opinion argues that the government’s duty of oversight does not remove the concessionaires’ liability. They have a contractual obligation to ensure safety on the highways, including handling and removing animals. Failure to fulfill this duty constitutes an omission and gives rise to the duty to compensate.
5. Exclusion of the administrative fault theory: The justice rejected the application of the administrative fault theory, advocated by the Brazilian Association of Highway Concessionaires (ABCR), which argued that the concessionaires’ liability should depend on proof of a specific service failure.

It is important to note that the thesis established deals exclusively with damage caused by accidents involving domestic animals. As for wild animals, the STJ Special Court has not yet consolidated its understanding.

There is, however, a large body of decisions by courts across the country – including the STJ itself – along the same lines, concluding that concessionaires are strictly liable.