The judgment of the Third Commission of the Council of State with file number 66001233100020060030001 of November 10, 2016, established that, in order to derive the extracontractual patrimonial liability of the State for lack of maintenance and deficiencies in road signaling, it is essential to demonstrate the damage and the failure in the service consisting of the disregard of the administration's duties, which include the obligation to implement preventive signals, supervise the execution of public works, control traffic on streets and highways, and prevent the risks generated thereby.
In the judgment, the Council of State explains that the extracontractual liability of the State can be configured once the unlawful damage and the imputation (from the factual and legal scope) are demonstrated.
With respect to the unlawful damage, the corporation establishes that, for the purpose of defining the unlawful damage, the premise that operates in modern society is that according to which every activity has inherent or intrinsic dangers of all kinds, whose triggering will not always lead to establishing or demonstrating the production of unlawful damage. If this is so, only those events in which there is an imminent, irreversible, and irremediable threat would allow, with the corresponding evidence, to affirm the production of certain damage that affects or generates a detriment to rights, assets, or legal interests, and that waiting for its materialization could imply the assumption of a more burdensome situation for the person who suffers it.
As for imputation, it requires analyzing two spheres: a) the factual scope, and; b) the legal imputation, in which the attribution must be determined according to a legal duty (which operates according to the different titles of imputation consolidated in the precedent of the Chamber: failure or fault in the provision of the service; special damage; exceptional risk).
Regarding the liability regime for traffic accidents arising from lack of maintenance and conservation, as well as absence of signaling by public authorities, it is important to note that in a recent pronouncement of the Plenary Chamber of the Third Section of the Council of State, it was pointed out that, just as the 1991 Political Constitution did not privilege any particular extracontractual liability regime, neither could jurisprudence establish a single title of imputation that should apply to events that share certain factual similarities, since it may vary in consideration of the particular circumstances proven within the process and the legal parameters or criteria that the judge deems relevant within the framework of his argumentation. Therefore, it left it to the judge to determine, in each specific case, the factual and legal foundations to support the decision to be made.