Negligence constitutes one of the modalities of stricto sensu fault, characterized by the voluntary omission of diligence or the failure to comply with an objectively required duty of care. Within the scope of Civil, Criminal, and Administrative Law, this institute underpins subjective liability, operating as the attenuated volitional element that links the agent's conduct to the damage suffered by the victim or the violated prohibitive norm.
1. Definition, Concept, and Legal Nature
Negligence is defined, from the perspective of classical legal dogmatics, as the inaction, inertia, or sloth of an agent who, being able and required to act in a certain way to avoid a harmful result, remains omissive. It differs from recklessness (rash commissive conduct) and malpractice (lack of technical aptitude), forming the triad of stricto sensu fault.
Its legal nature resides in the subjective element of illicit conduct. While in intent (dolo) there is a deliberate intention to achieve the result or the acceptance of the risk of producing it (eventual intent), in negligence there is a failure in the duty of foresight or precaution. The agent does not desire the result, but it occurs due to their lack of attention or carelessness regarding socially accepted or legally imposed standards of conduct.
2. Historical Origin and Evolution
The genesis of liability for negligence dates back to Roman Law, specifically the Lex Aquilia de Damno, which introduced the idea of culpa levissima. Aquilian Law allowed for the transition from purely objective liability (based solely on physical damage) to an analysis of the agent's conduct (culpa penes est).
In Comparative Law, the French Civil Code of 1804 (Napoleonic Code) consolidated subjective liability in Article 1,382, influencing the Brazilian Civil Code of 1916. In the contemporary domestic legal system, the evolution of the institute moves toward the objectification of liability in certain areas (such as Consumer Law), but negligence remains the central pillar of private relations and culpable criminal imputation.
3. Exact Legal Provision
The legal basis for negligence in Brazil is vast and segmented by branches of Law:
- Civil Law: Article 186 of the Civil Code (Law 10.406/2002) establishes: "Whoever, by voluntary action or omission, negligence or recklessness, violates a right and causes damage to another, even if exclusively moral, commits an illicit act". Article 927 complements this, imposing the obligation to repair the damage.
- Criminal Law: Article 18, item II, of the Penal Code (Decree-Law 2.848/1940) defines a culpable crime when the agent causes the result through recklessness, negligence, or malpractice.
- Administrative Law: Negligence is frequently classified as a functional misconduct. However, it is worth noting the amendment to the Administrative Improbity Law (Law 8.429/1992, amended by Law 14.230/2021), which began to require specific intent, excluding punishment for mere negligence (fault) in acts of improbity, one of the greatest legal debates of the present day.
- Federal Constitution: Article 37, §6º, although dealing with the objective liability of the State, allows for a right of recourse against the public agent in cases of fault (negligence) or intent.
4. Practical Application and Jurisprudential Understanding
The jurisprudence of the Superior Courts has refined the concept of negligence to avoid the application of unlimited liability. The following understandings stand out:
Superior Court of Justice (STJ)
In the scope of Medical Civil Liability, the STJ has consolidated that the physician's obligation is, as a rule, an obligation of means. The configuration of negligence requires proof that the professional did not use all resources available and appropriate for the case (REsp 1.846.331/DF). Another relevant point is the Theory of Loss of a Chance, applied when the professional's negligence deprives the patient of a real and serious opportunity for cure or survival.
Supreme Federal Court (STF)
Regarding State Civil Liability for Omission, the STF, in the judgment of RE 841.526 (Theme 592), established the thesis that state liability for the death of an inmate is objective, but in cases of generic omissions, doctrine and majority jurisprudence still debate the need to prove "service failure" (faute de service), which refers directly to state negligence in fulfilling its duties of custody and protection.
Superior Labor Court (TST)
In the labor sphere, the employer's negligence regarding occupational safety and health standards (Art. 7, XXVIII, of the CF) gives rise to the duty to indemnify in cases of work accidents, regardless of accident insurance (Súmula 229 of the STF and settled TST jurisprudence).
5. Related Principles and Doctrinal Divergences
The study of negligence is permeated by the Principle of Trust, according to which the agent has the right to expect that other members of society act according to standards of care, and by the Duty of Objective Care, a parameter used to assess fault by comparing the agent's conduct with that of the "average person" (bonus pater familias).
Divergences arise in the distinction between Conscious Negligence and Eventual Intent. In the former, the agent foresees the result but sincerely believes it will not occur due to their skill or luck; in the latter, the agent foresees the result and does not care about its occurrence. The thin line between these institutes is the subject of intense debates in jury trials and traffic crimes.
6. Contemporary Relevance and Practical Impacts
Currently, negligence is taking on new contours with the advent of Compliance and data protection (LGPD). Digital negligence, characterized by the lack of implementation of cybersecurity protocols, has generated significant convictions for collective moral damages in cases of personal data leaks. Furthermore, environmental liability has focused on corporate negligence regarding disaster risks, raising the standard of care required of administrators and companies.
Legal and Jurisprudential References
- BRAZIL. Civil Code. Law No. 10.406, of January 10, 2002.
- BRAZIL. Penal Code. Decree-Law No. 2.848, of December 7, 1940.
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988.
- BRAZIL. STJ. REsp 1.846.331/DF. Rel. Min. Nancy Andrighi, Third Panel, judged in 2020.
- BRAZIL. STF. RE 841.526/RS. Rel. Min. Luiz Fux, Plenary, judged in 2016 (General Repercussion).
- BRAZIL. Administrative Improbity Law. Law No. 8.429/1992 (as amended by Law No. 14.230/2021).
