If a pothole causes a car accident or a slip and fall injury, the premises owner can be held liable. With slip or trip and fall accidents, this is the party in charge of maintaining the roadway or parking lot. With motor vehicle accidents, this is generally the government. Lawsuits against the government often have special procedural hurdles to overcome.
What types of pothole accidents are there?
Potholes can cause accidents and injuries in 2 different ways:
- by causing a car accident, and
- by causing you to trip and fall.
In either case, the victim would get hurt through little or no fault of his or her own. This entitles them to financial compensation. They can file an insurance claim or a personal injury lawsuit against the at-fault party.
Car accidents caused by potholes
The most common type of accident that potholes can cause is a car accident. Potholes are also a common culprit in motorcycle accidents, particularly those that lead to wrongful death claims on behalf of motorcyclists. Potholes can cause car crashes in several ways:
- the jolt of hitting a large pothole can cause a driver to lose control of the vehicle and hit others or cause a single-vehicle crash,
- drivers can swerve to avoid a pothole and cause an auto accident, or
- drivers can hit the pothole and suffer vehicle damage without causing a crash.
The role that the pothole played in causing the crash can vary. Drivers who hit a pothole and lose control of their vehicle may be entirely blameless. Drivers who swerve to avoid one may still be primarily at fault.
Regardless, if the pothole played any role in your crash, you may still be able to recover compensation. A car accident attorney from a reputable law firm can help.
Slip and falls caused by potholes
Occasionally, potholes will cause slip or trip and fall accidents. Victims either do not see the pothole or do not appreciate how dangerous it can be. When they step in the pothole, they can lose their balance. When they fall, they can suffer surprisingly severe injuries.
These accidents can happen:
- in parking lots,
- on sidewalks,
- while crossing the street, and
- in driveways.
Trip and fall accidents like these can cause some serious injuries, particularly to elderly victims. Some common injuries that come with high medical bills include:
- broken bones, most often in the hands, wrists, or arms,
- knee injuries,
- foot injuries,
- head injuries, including concussions and other brain injuries, and
- neck injuries.
Victims can file a premises liability lawsuit against the owner of the property. A personal injury attorney can conduct a case evaluation and let you know what your rights are. Getting the help of a personal injury lawyer and getting their legal advice is the best way to ensure that you get the compensation that you deserve.
Who can be held liable in a personal injury claim?
The party responsible for fixing the pothole can be held liable for an accident caused by it.
Defendants in car accident cases caused by potholes
For car crashes, this is the party responsible for maintaining the road. This is nearly always the state, federal, or local government. You will generally have to show that the governmental agency responsible for road repair, typically the Department of Transportation, was negligent. Depending on the circumstances, this can involve showing that the government agency or municipality:
- knew about the pothole, often from prior driver complaints or routine roadway inspections, but did not fix it reasonably quickly, or
- failed to take reasonable precautions to discover the poor road conditions.
How to sue government entities
Filing a claim for compensation against a governmental entity is complex. Government entities have legal protections from lawsuits. This is because any settlement or verdict in your favor would be paid for with taxpayer money. Governments must waive their governmental immunity from lawsuits. They generally do this, but only for limited circumstances. As a part of this waiver of immunity to tort claims, state laws often erect procedural barriers such as:
- a stricter statute of limitations,
- administrative claim requirements, and
- requiring victims to file a notice of claim soon after the accident.1
This can make it more difficult for motorists to recover compensation.
Defendants in slip and fall cases caused by potholes
For trip and fall and premises liability cases, the owner or manager of the premises on which the pothole was located can be held liable. This can be the:
- property owner,
- property management company,
- commercial tenant or residential renter, or
- parent company.
The legal duties of property owners and managers
In most states, property owners or managers are expected to keep their premises in a reasonably safe condition. This generally requires them to:
- take reasonable steps to maintain the property,
- warn foreseeable visitors about hidden dangers or hazards,
- keep people away from known dangers, like a swimming pool, and
- fix dangerous conditions.
Whether the property owner took these steps will depend on the circumstances. Some factors that are important include:
- where the pothole was,
- whether any complaints had been received regarding the pothole,
- whether the owner should have been aware of it,
- how likely the pothole would cause an injury and how severe that injury would likely be, and
- how difficult it would be to repair the condition.2
In some states, though, it can matter whether the victim was a:
- trespasser, or someone who did not have permission or a legal right to be on the property,
- licensee, or someone permitted to be on the property for their own benefit, or
- invitee, or someone who had been invited to be on the property for the owner’s benefit.3
In these states, the property owner’s duty of care would depend on the visitor’s status.
What if I was partially to blame?
If you were partially to blame for the accident, you will only be able to recover a portion of the compensation you are entitled to receive. If you were primarily to blame, you may be barred from recovering anything.
It depends on your state’s shared fault laws. There are 3 main types of these laws:
- modified comparative negligence,
- pure comparative negligence, and
- contributory fault.
Modified comparative negligence
Most states use modified comparative negligence. In these states, the jury will assign a percentage of fault for the accident to each party. The jury will also issue an award, or how much compensation the victim deserves. The amount in the award is then reduced by the victim’s percentage of fault. However, if the victim was more than half at-fault, he or she can recover nothing.4
Pure comparative negligence
Most other states use pure comparative negligence. In these states, the victim’s award is always reduced by his or her percentage of fault, even if they were primarily responsible for the accident.5
Contributory fault
A couple of states use contributory negligence. There, the victim may not recover anything if they contributed to the accident at all. Even if the jury found that the victim was only 1 percent at fault, the victim would not recover any compensation.6
What about pothole damage to my car?
If you hit a pothole and it damages your motor vehicle, you would generally file an insurance claim. This type of property damage usually falls under the collision coverage of a car insurance policy.
If you do not have this type of insurance or if your insurance company denies coverage, you can file a lawsuit against the responsible party if the damage was extensive.
Additional resources
For more information, refer to the following:
- Some Legal Implications of Potholes – Journal of Applied Meteorology and Climatology.
- Pothole Fact Sheet – American Public Works Association.
- How Do Potholes Form? And Avoiding Pothole Damage – AAA (American Automobile Association).
- Potholes – General information by Pavement Interactive.
- Pothole Dangers – Drivers Beware – Article by Forbes.
Legal References
- See Michigan Compiled Laws 691.1404.
- See California Civil Jury Instructions (CACI) No. 1001.
- See Georgia Code 51-3-1 through 51-3-3.
- See Colorado Revised Statute 13-21-111.
- See Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 (California).
- See Ravenwood Towers, Inc. v. Woodyard (1992) 419 S.E.2d 627 (Virginia).
