A responsabilização do empregador em casos de acidentes de trabalho fatais: uma análise a partir do princípio da solidariedade e da teoria dos deveres fundamentais

Abstract

This study aims to discuss the liability of the employer in cases of fatal work accidents: an analysis based on the principle of solidarity and the theory of fundamental duties. The main objective was to investigate whether it would be appropriate to hold the employer liable, based on the theory of fundamental duties and the socialization of risks (solidarity), for work accidents that do not result from his or her fault or even from that of the employee, but when the latter ends up suffering the damages (death) due to the work accident. To this end, bibliographical and documentary research was undertaken, of a hypothetical-deductive nature. Several theories were examined, such as the risk-benefit, created risk, administrative risk, and integral risk, all related to civil liability. It was found that, currently, objective civil liability, in cases of work accidents, requires the presence of certain elements, such as, for example, conduct, causal link, and damage, in addition to fault, and this last requirement can be disregarded in the case of (objective) civil liability. It is believed that all of them, although quite pertinent to elucidate various cases, do not cover the situations that are part of the primary concern that was the starting point for delimiting the scope of this research. It was concluded that it would be necessary to issue a new theory in order to protect cases not covered by the existing ones, in episodes in which the worker, in the workplace, experiences a fatal accident, even if there is no fault on his part or on the part of the employer, in order to socialize the damages based on the fundamental duty to protect life