Reports in July 2011 that a community college student has filed a $375,000 lawsuit against her school in Eugene, Oregon should not surprise too many people. The student tripped in a 6-inch-by-1-inch pothole next to where she parked, leading to $14,000 in medical costs. Perhaps what was most newsworthy about the case is the student has a disabling bone disease – and the pothole was adjacent to her handicapped parking space.
Across the United States, trip-and-fall accidents are a large part of what constitutes premises liability, an area of personal injury law that keeps lawyers busy and insurance companies nervous. Both public and private property are subject to lawsuits that claim the property owner failed to uphold a “standard of care” in maintaining walkways, driveways and parking lots in their charge. The Oregon case illustrates that one small pothole can add up to a very large legal defense bill and potentially devastating damage settlements.
Creating some confusion, the laws regarding potholed pavement are a patchwork from city to city and state to state. But almost everywhere, there is strong incentive for property owners and managers, public and private, to maintain smooth pavement.
Law firms that specialize in “pothole law”
It is not hard to find law firms that specifically work with people who wish to make claims about their pothole-related injuries.
One New York attorney with offices in Brooklyn, the Bronx and White Plains variously advertises himself on his website as a “Bronx Sinkhole Injury Attorney” and a “Brooklyn Parking Lot and Sidewalk Injury Attorney.” There, he notes, “Potholes and sinkholes can easily develop in parking lots and sidewalks, especially during the winter. Property owners have a responsibility to make sure either that these hazards are repaired or that people walking and driving on their property are warned against them.”
In fact, New York City’s “Sidewalk Law” (Section 7-210, NYC Administrative Code) places a portion of liability for sidewalk trip-and-fall accidents on property owners. Keep in mind that sidewalks are publicly owned. Enacted in September 2003, the law sought to reduce verdicts, settlements and expenditures that cost the city $189 million in 10,800 claims in the three years prior to passage of the law. Owner-occupants of residential property of three units or less are exempt, still leaving absent landlords and owners of larger residential properties and all commercial property owners at risk for trip-fall accidents on public property adjacent to them. In theory, those property owners will keep better maintenance of those sidewalks (repair costs are shared between owners and the city).
A Baltimore, Maryland lawyer (a “Harford County Parking Lot Accident Attorney”) warns that the liability extends beyond owners to other entities that might also be responsible for pothole accidents. He notes on his website, “All Maryland businesses, corporations, employers and business owners have a legal obligation and responsibility to properly maintain all areas of their property. This includes parking lots, driveways and sidewalks … these accidents can ultimately lead to life altering injuries that can take significant amounts of time, energy and money … management companies, cleaning companies, outsourced security companies and other corporate entities can also be held responsible for your injuries.”
The types of injuries caused by pothole-related trip-fall accidents are no laughing matter. A Los Angeles accident and personal injury attorney explains on his website, “Icy patches, a crack in a sidewalk, or a pothole are also factors that can cause serious slip and fall injuries. Slip and fall injuries can happen anywhere, and often occur at grocery stores, department stores, in parking lots, and on sidewalks. While many people, including insurance defense lawyers, make light of slip and fall accidents, the consequences of a fall can be severe. A slip, trip and fall accident may result in serious injuries, such as head injuries, brain injuries, spinal cord injuries, herniated or bulging discs, fractures, breaks, broken bones, neck injuries, back injuries, shoulder injuries, knee injuries, and muscle and ligament injuries.”
Serious injuries are not the limit of each of these law firms. Wrongful death lawsuits are not unusual when the victim dies, quite often from a head injury.
But for any property owner or maintenance company that thinks their insurance policy covers them on this, beware: Improperly maintained premises – including those awful potholes that sometimes spring up overnight – are considered the fault of the policyholder. If a pothole is allowed to persist, it’s a lawsuit waiting to happen.
Pothole lawsuits cost cities and counties – and politicians – too
Local municipalities have long felt the sting of financial liability for potholes, primarily where car damage claims can be made against a city or county that failed to fix a pothole in a timely manner. The 2003 NYC sidewalk law was passed in the midst of a budget crisis as a way to shift those costs from the city to private property owners. In Wisconsin in 2011, the state assembly and senate introduced legislation in July that would remove liability altogether from towns, villages, cities and counties for paying for such damages.
The argument is that money saved on lower insurance premiums would instead go to actually fixing the potholes. A counter-argument – seeking to block this change in the law – is that it might have an opposite effect: “The bill relieves the counties of having to do timely repairs, which I don’t think is a good solution,” said Brown County risk manager Barb West. “To me, that’s not acceptable. We’re trying to encourage commerce and more business to come in, and they should come in knowing we’ve provided good infrastructure. If you see the roads in ill repair, how inclined would you be to set up a business there?”
Blogger and former Lincoln (Nebraska) Star-Journal reporter Deena Winter shared her thoughts on potholes in her city, Lincoln, and in Omaha, Nebraska, where the mayor, Jim Suttle, recently survived a recall election. In her post titled “Mayors can get derailed by potholes, snowplows and taxes,” she says “People expect its government to do a few basic things: Keep them safe, put out the fires, keep the streets from falling apart and get the dang snow off the streets ASAP.” Winter opines that fixes to Lincoln roads are timed to springtime municipal elections (note: winter and spring are when potholes typically appear and should be fixed, regardless of politics).
So what’s to learn in all this? Regardless of whether you are a public or private entity, keep your sidewalks, roadways and parking lots in good condition, meeting the “standard of care” that a judge or jury would find you innocent of negligence. And to cover for times a pothole might pop up overnight – as they often do – keep up your insurance policy.
As for politicians facing a near-term election, well, perhaps they should think of every pothole as a lost ten or twenty votes.
