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Às vezes, mesmo quem faz tudo certinho acaba tendo que indenizar alguém

  • Em geral, um ato ilícito, ou melhor, a violação de um dever juridicamente relevante, é o que gera a obrigação de indenizar. Mas alguns atos lícitos, perfeitamente corretos e justificáveis, também podem obrigar a pessoa a indenizar. Pois é… o Direito tem dessas coisas…

Nem todo ato ilícito gera dano assim como nem todo dano é gerado por ato ilícito. Por exemplo, se um motorista avança por um sinal vermelho em uma rua deserta, comete um ato ilícito sem causar dano a ninguém.

Mas como pode um ato lícito, legal e correto, gerar dano a alguém? Existem três situações em que isso pode acontecer: legítima defesa, exercício regular de um direito e estado de necessidade.

Normalmente, o que é lícito e correto, mesmo gerando dano para alguém, não obriga o autor do dano a indenizar a vítima.

Se um adolescente é agredido por alguém e empurra essa pessoa para se proteger, e a pessoa tropeça e bate com a cabeça, sofrendo uma lesão, o adolescente produziu um dano em legítima defesa. Nesse caso, quem se defendeu não precisa indenizar o agressor. Ainda bem, não é?

Se você propõe uma ação judicial contra alguém, com boa-fé, e perde, você talvez tenha que pagar as despesas processuais e os honorários dos advogados, mas não precisará indenizar o réu por danos morais, ou por danos à sua imagem de respeitável cidadão, porque você terá agido no exercício regular de um direito, o direito de acesso ao Judiciário, o direito de ação.

Isso tudo é quase intuitivo, mas o terceiro caso de exclusão da ilicitude é um pouco mais complicado. Imaginemos que o moleque esperto está voltando da escola para casa e vê um amigo atravessando a rua fora do sinal, distraído, ensurdecido pela música que ouve de seus fones de ouvido. Nesse momento surge um caminhão na velocidade mais alta permitida para aquela via. O motorista, sabendo que não conseguiria frear a tempo, buzina para alertar o menino, que não reage e continua andando tranquilo pelo asfalto. Por um desses reflexos que só pessoas saudáveis e sóbrias têm, o motorista desvia o caminhão bruscamente e destrói o muro da casa do moleque esperto. Um prejuízo enorme, mas necessário para evitar a morte de um adolescente. O motorista fez o que era melhor, produzindo um dano apenas para evitar perigo iminente de dano maior. Esse tipo de situação é chamado de estado de necessidade.

(Código Civil)

Art. 188. Não constituem atos ilícitos:

I – os praticados em legítima defesa ou no exercício regular de um direito reconhecido;

II – a deterioração ou destruição da coisa alheia, ou a lesão a pessoa, a fim de remover perigo iminente.

Parágrafo único. No caso do inciso II, o ato será legítimo somente quando as circunstâncias o tornarem absolutamente necessário, não excedendo os limites do indispensável para a remoção do perigo.

O moleque esperto sabe que o motorista fez apenas o que era necessário. Mas e o que fazer depois? Os pais do moleque esperto poderão pedir reparação dos danos ao motorista? Sim, poderão. Mas o motorista tem culpa? Não. Na verdade não pode haver culpa se o que o motorista fez foi correto, foi o que tinha que ser feito mesmo. Só se discute culpa de uma pessoa quando ela faz algo errado, um ato ilícito, contra lei ou contrato.

Então… por que o motorista tem que pagar? Bom, o moleque esperto, se por um lado fica com pena do motorista, por outro fica aliviado por saber que sua mesada não corre o risco de ser afetada por despesas extras de reconstrução do muro. Ele pensa: “Alguém tem que pagar, não é mesmo? Então que seja o motorista, autor do dano”. Mas o real motivo… bom, o real motivo é muito discutido. “Alguém tem que pagar” é uma explicação muito fraca. Mas temos que convir que deixar os pais do moleque esperto arcarem com o prejuízo é injusto. Eles nem estavam presentes no momento do acidente.

Mas não precisa ficar com tanta pena do motorista que será obrigado a pagar o estrago. Existem outras regras para protegê-lo, lá pelo meio do Código Civil, nos artigos 929 e 930. Eles dizem que o motorista pode cobrar do causador do perigo de atropelamento a quantia paga aos pais do moleque esperto. Agora sim! Então ele pode cobrar do adolescente que ouvia música com fones de ouvido no meio da rua? Será que pode? Talvez. Ou deve cobrar dos pais do garoto que deixaram ele andar na rua com fones de ouvido? Talvez. Você saberá um pouco mais sobre essas questões lendo o texto “Quem paga a conta quando o menor causa dano a outra pessoa?

(Código Civil)

Art. 929. Se a pessoa lesada, ou o dono da coisa, no caso do inciso II do art. 188, não forem culpados do perigo, assistir-lhes-á direito à indenização do prejuízo que sofreram.

Art. 930. No caso do inciso II do art. 188, se o perigo ocorrer por culpa de terceiro, contra este terá o autor do dano ação regressiva para haver a importância que tiver ressarcido ao lesado.

Parágrafo único. A mesma ação competirá contra aquele em defesa de quem se causou o dano (art. 188, inciso I).

Mas a discussão ainda não acabou. O que acontece se o motorista destrói um muro por ter desviado de uma arara azul igual ao personagem Blu do filme Rio? A arara resolveu pousar no asfalto quente no momento em que passava um caminhão. O motorista, que tinha visto o filme Rio dias antes, sentiu que ia atropelar o mais novo símbolo do povo brasileiro, reconhecido no mundo inteiro e… destruiu o muro… agiu em estado de necessidade, claro! Mas e agora? O motorista paga o prejuízo aos pais do moleque esperto, mas cobra de quem? Da União? do Estado? do Município? Do Carlos Saldanha?

É… agora sim, podem ficar com pena do motorista… o Direito nesse caso não o ajuda em nada.

Referências:

PEREIRA, Caio Mario da Silva. Instituições de Direito Civil – vol. I. 12ª edição. Rio de Janeiro, Forense, 2006, pp. 669-671.

CAVALIERI FILHO, Sérgio. Programa de Responsabilidade Civil. 6ª edição. São Paulo, Malheiros, 2006. pp. 41-43

CÓDIGO CIVIL comentado : doutrina e jurisprudência. Coord. Cezar Peluso. – 3ª ed.- Barueri, SP: Manole, 2009.

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