Injuries can occur despite the best efforts of local government to maintain our roads. Salt, water, motor vehicle oil and other substances can cause the erosion, cracking and breaking apart of the asphalt leaving a fissure or hole in the road. Motorists can drive dangerously in an effort to avoid them at the last minute, which can cause accidents with other motorists.
If a motorist drives into a pothole, that can lead to personal injury or damage to their vehicle. When pothole injury occurs on public road, you will have to sue the government, which can be more difficult to do than suing a private party.
- What Types of Pothole Injuries Can Occur?
- Can the Government Be Liable for Pothole Injuries?
- What is Government Immunity?
- What Do I Need to Establish When Suing the Government for Pothole Injuries?
- How Do I File a Claim for Pothole Injuries?
- Is there a Private Property Exception?
- Do I Need a Lawyer When Suing the Government for Pothole Injuries?
Pothole injuries are governed by tort law. Tort law covers the various types of injuries that can be caused by the intentional or reckless actions of someone else. This is a broad category of law that can include many different types of personal injury claims and seek to compensate the victim monetarily as well as to deter similar behavior in the future.
Common injuries and damage resulting from pothole accidents include:
- Head injuries and whiplash;
- Spinal injuries;
- Internal bleeding;
- Tire blowouts; and/or
- Steering wheel damage.
The government can be liable under the Federal Tort Claims Act (FTCA) or the equivalent state version for personal injuries suffered by the public that is caused by government liability for action or inaction. Historically, private citizens were unable to sue the government for injuries.
However, the FTCA and state versions created a limited waiver of immunity to allow citizens to sue the government in certain circumstances with the government’s consent. In many states, tort claims statutes provide the exclusive method to be used by private parties when seeking damages against the government.
The government has immunity (sometimes called sovereign immunity) which allows it to minimize the number of lawsuits against it, the types of damages that may be collected, and the amount that that may be awarded.
Traditional government immunity can prevent any lawsuit from being filed against the government without its express consent. The purpose of the immunity doctrine is to protect the government from being destabilized by constantly having to respond to lawsuits or paying out excessive damage awards.
By deciding when to consent to a lawsuit, it can limit the financial damages it will be entitled to pay from public funds. Government immunity extends to government agencies and entities, including the city, the police, and the legislature.
If the government received prior complaints about potholes or it failed to regularly maintain the roads, a motorist may have sufficient basis to file a suit against the government.
You should also be prepared to show that the government entity or agency being sued had control over the road and that their failure to timely cure the condition caused the injuries.
The tort claims statute defines what requirements must be satisfied before the claim can be brought against the government. The types of claims are very narrow in scope and the claimant must follow the rules precisely or risk having their claims dismissed.
The claimant typically will find a claims form on the municipality’s website. If a state follows the FTCA closely enough, the claimant must provide a notice of claim to the government within the timeframe provided by the statute of limitation and must specifically detail the basis of the claim.
In New Jersey, for instance, to file a suit under the state’s tort claims statute for pothole injury on a state-owned highway, you start by filling out a notice of claim within 90 days of the incident.
The claim form should include an estimate of repairs and/or a receipt showing proof of payment for the repairs, the specific location where the incident occurred, a copy of an official police report, and a copy of the auto insurance policy declaration page.
When the potholes are on private property, the landowner can be sued directly. The claimant can pursue a premises liability claim. The claimant should be prepared to show that the owner had a duty of care to the claimant, that they knew about the potholes and that they presented a dangerous condition, and that the owner’s breach of that duty caused the injuries.
Suing the government for personal injuries can be difficult because of government immunity. It is also made more difficult because of the requirements that must be satisfied before the claim can be filed.
You should consult with an experienced personal injury lawyer to help you file your claim and defend your lawsuit to obtain the full amount of damages allowed under the law.