Disclaimer
For the purposes of this article, it is assumed that the speed bump is adequate with the right visibility, specifications, dimensions, and measurements in relation to the maximum speed limit of 50 kph for residential areas. Liability toward neighboring residents for nuisance caused by speed bumps, is not discussed in this article.
Introduction
Speed bumps on public roads are a welcome addition to road traffic safety in general. However, there are still many residential areas that urgently require speed bumps. Requests to the Department of Public Works (DOW) to install traffic plateaus (verkeersplateaus) go unanswered for years.
A civil case may be evaluated against the government of Aruba. A refusal by the government to take a speed limiting provision to support the maximum speed – such as a speed bump or road narrowing – does not fall within the scope of administrative law (ECLI:NL:RBZWB:2023:4538).
A lawsuit is time consuming and costly which begs the question whether a private citizen is legally allowed to place a speed bump on a residential public road.
No legal framework for speed bumps
Speed bumps have no legal framework. Aruba (traffic) laws do not mention speed bumps. The manner in which speed bumps should be constructed is not laid out in any formal (traffic) laws. The construction of a speed bump is a decision of factual nature. A decree is therefore not required [1].
Compelling public interest: road traffic safety
Public roads are owned by the government. Placement of speed bumps on a residential public by a private citizen road may constitute a wrongful act (onrechtmatige daad, gedraging) toward the government.
The government should however tolerate this action if done to protect a compelling public interest, i.e., road traffic safety (6:168 CC) (ECLI:NL:RBDHA:2015:10157). The government may also commit abuse of rights (misbruik van recht) by removing the speed bumps (3:13 CC).
Liability toward road users
Speed bumps should not create a potentially hazardous situation for road users. Speed bumps may become hazardous if they are improperly installed or maintained and become wobbly, partly or completely detached from the road surface over time. The speed bump becomes ‘defective’ under article 6:174 CC.
Liability for material damages and bodily injury of road users incurred as a result of the defective speed bump on a public road may lie with the owner of the speed bump (6:174 (1) CC) or the owner of the public road, i.e., the government (6:174 (2) CC).
Warning signs not compulsory for speed bumps
Placement of a warning sign (waarschuwingsbord), e.g., to alert the traffic on the presence of a speed bump, requires authorization of the Minister of Justice (article 5 (2) Traffic Regulations Decree). A warning sign for speed bumps is not compulsory, however.
Warning signs are intended to indicate the presence of a certain hazardous traffic situation. A hazardous traffic situation is present if the danger to road users is insufficiently observable or not observable in a timely manner (ECLI:NL:RBNNE:2023:183).
An adequate speed bump is designed to be visible from a safe distance and does not create a hazardous situation. A warning sign is not necessarily required under this scenario.
It is noted that the traffic plateaus on public roads (constructed by the government) are all provided with warning signs. In this way, the government complies with its duty of care (zorgplicht) to ensure road traffic safety.
Conclusions
Placement of a speed bump on a residential public road by a private citizen is in principle not prohibited under Aruba (traffic) law. It may however constitute a wrongful act toward the government which the government should tolerate to the benefit of the compelling public interest of road traffic safety.
Speed bumps should not be confused with ‘objects on public roads that cause confusion for road users regarding the traffic rules’ which are prohibited under article 5 (3) Traffic Regulations Decree. Speed bumps do not cause any confusion regarding traffic rules whatsoever.
A properly maintained and adequate speed bump is not hazardous. A warning sign is therefore not necessarily required. The risk of liability toward road users is low because the speed bump is not deemed ‘defective’ under the law and road users should exercise necessary caution and vigilance and should expect speed bumps in residential areas (ECLI:NL:GHARN:2007:BA0161).