| This is the question aired in a ruling of the Supreme Court of Justice (“the SCJ”) made known some time ago.
In the 70’s, the State built a canal to clean up an extensive area of the department of Rocha that until then remained covered with water most of the year and therefore without major agricultural development. With the construction of the canal, the waters began to drain to lower ground, which significantly increased the agricultural productivity of these fields.
Years later, this canal was complemented by a retaining wall built by the Ministry of Transport and Public Works (the “MTOP”). In one of the fractions of field adjacent to the wall, an agricultural enterprise began the development of large-scale, well-yielding rice crops (“the Company”). But it seems that good things are short-lived. On the occasion of the floods that affected part of Rocha in February 2010, the wall built by the MTOP gave way, and the water passed into the Company’s farm. The field of the latter was covered with water for 12 days, with the consequent loss of rice production.
The Company sued the MTOP for the damages suffered by it. He argued that the MTOP had been duly ordered to carry out the necessary repairs to the wall (due to the danger it entailed), but he failed to do so and that was the cause of the flooding of the planted farm.
In the first instance, the acting Court ruled in favor of the Company: “in the State everything is registered” and therefore there should be a written record of the repair of the wall. Since the documents proving that the MTOP had made the reparations in the case had not been added to the file, the reparation could not be considered proven and on its merits the defendant Ministry was condemned.
The case reached our Supreme Court. Based on the evidence presented, the SCJ concluded that the retaining wall was repaired by the MTOP before the floods occurred in the Company’s fields, which is why there was no lack of service.
In the opinion of the SCJ, the Company intended to impose on the MTOP the burden of proving in writing the construction of the wall. Except that, for the Court, the construction and repair of the wall could be proven by all admissible means of evidence, and so did the MTOP.
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For any questions regarding this material, please contact Dr. MarÃa Eugenia Ãlvarez (ealvarez@bergsteinlaw.com) and/or Dr. Leonardo Melos (lmelos@bergsteinlaw.com). |
