Potholes and Governmental Liability: Know Your Location, Location, Location
Whether or not a governmental body is liable for damage caused as a result of a pothole is inconsistent. Most states provide for some sort of exception to governmental immunity for some damages caused by certain road conditions.[1] Though some states have tried,[2] no states currently have complete governmental immunity for damages caused by the physical condition of roads, highways, and sidewalks. Further, at this time, despite arguments in certain states to the contrary, there appears to be no complete immunity for damages caused by potholes.[3] For a municipal entity to understand the potential exposure regarding potholes, first look at each states’ legislature’s and courts’ views on the subject.
Some states have held that liability for injuries for damages from potholes is only recoverable on highways, bridges, and sidewalks, but not on municipal parking lots.[4] Other states such as Illinois, on the other hand, have stressed a narrow look at the party injured by the pothole. Illinois case law makes it clear that the statute only imposes liability if there is a failure of ordinary case and if the injured party was making ordinary use of the public property.[5] Thus the injured person must show he is both a permitted and intended user of the property.[6]
When applying and interpreting that statute, the Supreme Court of Illinois held that a municipality was immune from liability for injuries caused to a pedestrian by a pothole because the pedestrian fell in the pothole when not crossing at a cross walk.[7] Further, Illinois courts have held that as bicyclists are not the intended users or roads, only permitted users, there is no duty to them by municipalities beyond what is due to those in cars, thus municipalities would not be liable to injuries from potholes to bicyclists on roads if such would not harm motorists.[8] However, as bicyclists, at least child bicyclists, would require the same care on sidewalks as pedestrians, municipalities could be liable for damages sustained by child bicyclist from potholes on sidewalks.[9]
New York[10] on the other hand, through its local codes, has required certain threshold notice requirements to be met prior to recovery to protect its municipalities and other jurisdiction have followed suit. So-called “Pothole Laws,” provide for municipal immunity from liability for injuries caused by certain road defects like potholes without prior written notice of the condition unless the municipality itself created the defect which resulted in an immediately dangerous condition.[11]
Certain places in the Deep South, on the other hand, have chosen to attempt to allow the municipalities to share the burden of liability with the state for certain injuries from potholes. La. R.S. 48:193 specifically provides for state governmental liability, along with municipal governmental liability, for damages caused by potholes if the potholes are on a road if the road is inspected and maintained by the state (which can include streets which form continuations from highways), if the potholes create an unreasonable risk to motorists and if the potholes are the proximate cause of the injury.[12]
In Ohio, generally, there is a three-tier analysis for municipal liability.[13] First, determine if the governmental entity seeking immunity is a political subdivision; second determine whether there is a statutory exception to that political subdivisions immunity in the case at hand; and third determine whether there is a defense to such exception.[14] Ohio has an actual pothole immunity exception[15] which provides for liability for negligent failure to keep roads in repair and to keep roads free of “obstructions.”
“Obstruction,” in the statute used to read “nuisance,” and it has been argued that the change would provide for universal immunity for pothole liability for municipalities.[16] The argument was not successful and some Courts have decided not even to analyze liability under the “obstruction”/”nuisance” section of the statute at all, but rather focus on the negligence section which Courts have specifically stated could include negligent failure to keep roads free of potholes.[17]
For an Ohio municipality to be liable under the negligence section of the statute, the elements of negligence including duty, breach, proximate cause, foreseeability, and damages cause must all be met.[18] Courts have held that in pothole cases, the municipality has not duty unless there is actual or constructive notice of the particular pothole.[19] For there to be constructive notice in pothole cases, the pothole must have been able to have been discovered by the municipality with reasonable care; to have existed for a sufficient time to allow the municipality to have the chance to repair it, and if discovered, for the municipality to reasonably be aware of the danger it would cause if not repaired.[20] Thus, despite the statutory change, Ohio liability turns on notice, which unlike New York, does not need to be written or even actual.
Pothole liability for municipalities is varied across the county. It is imperative to be aware of states’ laws to properly protect against exposure. However, awareness of trends and ideas across the country can identify potentially better practices and laws to fight for at the state level.
[1] See e.g., Conn. General Statutes Section 13a-149; 745 ILCS 10/3-102(a)(West 1996); La. R.S. 48:193; Ad. Code City of NY Section 7-201(c)(2); R.C. 2744.02(B);Miss Code Ann. Section 65-783 (1972); 42 Pa. Cons. Stat. Section 8542(b)(6)(i); and N.J.S.A. 59:4-2.
[2] New Hampshire tried to make municipalities entirely immune for damages caused by failure to maintain highways, streets and sidewalks in RSA 507-B:2, but the statute was declared unconstitutional due to its overly broad nature. See City of Dover v. Imp. Cas. & Indem. Co., 133 N.H. 109 (1990).
[3] Ohio codified liability for municipalities certain injuries caused by road conditions if the damage was caused by the municipality’s negligent failure to keep said public road in repair. See R.C. 2744.02(B). R.C. 2744.02(B)(3) was amended in April of 2003 and in said amendment the language in the statute was changed from requiring the municipalities to keep the roads free from “nuisance,” to free from “obstruction. It was recently argued, unsuccessfully, that as “potholes” are generally described in Ohio Statute’s as “nuisances,” the chance in the language in R.C. 2744.02(B)(3) provided a universal immunity for municipality from pothole damages. See Crabtree v. Cook (2001), 196 Ohio App. 3d 546 (Ohio App. 10th Dist.). It remains to be seen how other Ohio appellate courts view the issue and if the Supreme Court will remark on the issue. If such was the intent of the legislature however, the 10th District at least found such unclear and lacking and felt the change in R.C. 2744.02(B)(3) was not enough to overcome alternative liability for general failure to keep roads in repair under R.C.2744.02(B).
[4]See Gough v. Town of Fairfield, 7 Conn.L.Rptr. 50 (July 9, 1992).
[5] See Vaughn v. City of West Frankfort, 166 Ill. 2d 155 (1995).
[6] See Boub v. Township of Wayne, 183 Ill. 2d. 520 (1998)
[7] See Vaughn, supra
[8] See Boub, supra.
[9] See Brooks v. Peoria, 305 Ill. App. 3d 086 (1999).
[10] See Ad. Code City of NY Section 7-201(c)(2); Yarborough v. City of New York, 10 NY3d 726, 882 N.E.2d 873 (2008) and Vega v. City of New York, 88 A.D. 3d 497 (N.Y. App. Div. 2011).
[11] See Yarborough and Vega v. City of New York, supra.
[12] See Mouton v. Southern Pacific Transp. Co., 509 So. 2d 479 (La. App. 3rd 1987). Mississippi provides for similar shared responsibility in Miss Code Ann. Section 65-783 (1972).
[13] See R.C. 27 44 and Hubbard v. Canton City Board of Edn.(2002), 97 Ohio St. 3d 451.
[14] See id; R.C.2744.02(B) and R.C. 2744.03(B).
[15] See R.C.2744.02(B)(3)
[16] See, e.g., Crabtree, supra.
[17] See Todd v. City of Cleveland, 2013-Ohio-101 (Ohio App. 8th Dist.)
[18] See, e.g. Menifee v. Ohio Welding Prods., Inc. (1984), 15 Ohio St. 3d 75.
[19] See Gomez v. Cleveland, 2012-Ohio-1642 (Ohio App. 8th Dist.).
[20] See Nanak v. Columbus (1997), 121 Ohio App. 3d 83 (Ohio App. 10th Dist.).