Responsabilidad del estado por omisión frente a la prevención de riesgos viales advertidos: los límites de la señalización

Abstract

This monograph addresses the responsibility of the State for omission in cases of known structural risk. Although it has information that such situations are dangerous, the State often limits its action to posting warnings or notices without implementing preventive or corrective measures. This line of conduct constitutes a transfer of risk to the citizen, which contravenes the State’s obligation to protect and prevent. The central issue contemplated in this type of situation is whether the State can consider its role as guarantor fulfilled merely by warning of a risk that it has the legal and technical capacity to prevent. The question highlights the State’s liberalized reluctance, despite its proper knowledge of latent risks (for example, deteriorated roads, collapsed infrastructures, areas prone to traffic accidents), while remaining silent and shifting the task of ensuring safety to civic self-censorship. But why do we talk about evident risks? We say they are evident because being identified or warned about does not come from an assumption, but from prior evidence that justifies the risk itself. Thus, if there is a road sign, it exists on the basis of previous support, which may be a technical study carried out by professionals specialized in the field who identify a high-accident point, unstable terrain, or past risk situations. For example, the presence of a “dangerous curve” sign results from studies or traffic records that have shown that the characteristics of that section of the road increase the likelihood of accidents. Similarly, an “animals on the road” sign exists because incidents involving animals have been reported in that area, based on its location or features. Therefore, what is considered evident is linked to the existence of evidence, studies, or records that support the decision to place a sign, and not to a mere assumption. The essay considers how this failure undermines the realization of fundamental interests of the State, such as the preservation of life, public order, and the common good. Although signage may serve as a complementary countermeasure, exclusive reliance on it exposes a material legal omission, particularly once the State has been notified of the danger through reports, collisions, or official documents. Accordingly, the discussion addresses the legal framework (public function, the State’s duty of positive action, and the dogmatic/jurisdictional perspective of liability for omission) in this direction. It also suggests the need for a “forward-looking” approach by the State toward its role in risk management, intervening structurally when the danger is evident and has persisted over time. This reflection seeks to contribute by focusing on the limits of institutional warnings, with the conviction that informing citizens about risks is not sufficient on its own. It is the State’s obligation to eliminate or mitigate danger, especially when fundamental rights such as the right to life and personal integrity are at stake.