I was injured due to an unsafe road condition. Can I sue?

Poor road conditions, such as potholes, can cause damage to your vehicle, lead to an accident, and even cause serious physical injury to you and your passengers.

If you or someone you care for was injured as a result of dangerous road conditions, here are five key things to know about bringing a personal injury lawsuit to recover damages:

1. Depending on where your accident occurred, you would sue either the city, county, state, and/or federal government.
2. You may be able to recover such damages as medical bills, loss of income, property damage, and pain & suffering. In rare cases, you may even get punitive damages.
3. Even if you were partly at fault for the accident, you may still be entitled to a financial reward.
4. There are specific requirements for filing a claim for damages against the government, and the statute of limitation is usually short.
5. In some situations, the government may claim immunity from liability, though your attorney may be able to find ways around this.

Below, our California personal injury attorneys address frequently asked questions about hazardous road conditions lawsuits and the injuries you may have suffered:

• 1. Who is responsible for keeping roads safe?
  • 1.1 How does the government learn about dangerous road conditions?
  • 1.2 What if the government never discovers the unsafe road condition?
  • 1.3 Will the city pay for pothole damage?
• 2. What types of dangerous road conditions can the government be responsible for?
  • 2.1 What causes these dangerous road conditions?
• 3. How do I make a claim for injuries from dangerous road conditions?
  • 3.1 Who is the proper party to sue for my injuries?
  • 3.2 How do I sue subcontractors working for the government?
  • 3.3 Can you sue for potholes?
• 4. How do I prove the dangerous road condition caused my injuries?
  • 4.1 What information do I need to present to the court?
  • 4.2 What will the government argue?
• 5. What is sovereign immunity?
  • 5.1 Are there exceptions to this rule?
  • 5.2 Are there exceptions to this rule?
• 6. Is there a statute of limitations in dangerous road condition cases?
• 7. What financial compensation can I be awarded?
• 8. Dangerous road condition jury verdicts and settlements

1. Who is responsible for keeping roads safe?

Generally speaking, the federal, state, or local government is obligated to maintain roads that are under its jurisdiction.

If the governmental entity fails to maintain the road, the general theory of liability states that because the government should have kept it safe, it is liable for any failure to do so.

If you suffer physical injury or other damages as a result of that failure, you can file a personal injury lawsuit to obtain compensation for those damages.

1.1. How does the government learn about dangerous road conditions?

Most states have laws that permit the government a “reasonable” amount of time to learn of dangerous road conditions and a “reasonable” amount of time in which to repair those conditions. How much time is reasonable depends on the unique facts and circumstances of each case.

Government entities usually discover unsafe road conditions by:

• Conducting surveys of the roads on a regular basis,
• Reports by individuals in the community who have observed the dangerous condition, or
• Regular road maintenance routines on roadways.

1.2. What if the government never discovers the unsafe road condition?

When the government claims it did not discover the dangerous road condition, there is a chance that it will still be held liable if the problem should have been discovered within a reasonable time period.

Example: It is December, and you run over a large pothole in the road caused by a snow plow clearing the roads the previous day. Likely, one day was not sufficient time for the government to discover the unsafe pothole. The government may not be held responsible for your damages for this road hazard.

If the condition existed for a much longer period, and the government should have discovered it in that time, the government may be liable for your damages even if it did not actually know the dangerous condition existed.

Example: On July 4, a motorist crashed into a stop sign, bending it completely over so that it can no longer be seen. On October 31, on your way to a Halloween party, a driver from out of town travels through the intersection without stopping because the stop sign is not visible. The driver hits another vehicle traveling through the intersection. After such a long period of time, the city government should have reasonably discovered the issue. The government may be liable for the injuries.

Remember that the government generally has both

1. a reasonable time in which to discover the problem and
2. a reasonable time in which to repair that problem.

1.3. Will the city pay for pothole damage?

If a city’s negligence caused a defective pothole, the city could be liable for ensuing damages. (Scroll down to section 5 for more information.)

2. What types of dangerous road conditions can the government be responsible for?

Assuming the government has not been reasonable in either the discovery or repair of a dangerous road condition, it can be liable for damages as a result of:

• Cracks in the road or potholes that cause you to lose control of your motor vehicle,
• Road signs that are covered by overgrown foliage or have fallen,
• Issues with guardrails on sharp curves, ditches, or on overpasses,
• Failure to include rumble strips on highways,
• Damage to bridges or overpasses,
• Lack of proper warning signs,
• Dangerous curves,
• Inadequate control of traffic in construction zones (i.e. proper marking, cones, etc.)
• Faded lane markings such as edge lines, centerlines, or turn lanes,
• Poor lighting of roads or road signage,
• Clogged drainage causing road flooding, and
• Malfunctioning stoplights at intersections.

2.1. What causes these dangerous road conditions?

According to Los Angeles car accident lawyer Neil Shouse, a dangerous roadway condition may be the result of

• normal wear and tear,
• another’s negligence,
• or an act of nature.

However, in many cases, the government can also be held responsible for damages when the dangerous condition was caused by:

• Poor road design or planning of roads,
• Bad construction (such as the use of cheap materials for building roads or bridges), or
• Failure to maintain and repair the roadways.

If your injury is caused by the government’s failure to properly protect its citizens, it may be held responsible for your injuries.

3. How do I make a claim for injuries from a dangerous road condition?

In order to file your claim, you should consult with an experienced personal injury attorney familiar with dangerous road condition lawsuits. To prepare for this consultation, you should keep and collect all information you think might be relevant to your case. For example:

• Where the dangerous condition is located,
• The name of the road you were on when you were injured,
• The direction in which you were traveling,
• Contact information for any witnesses to the incident
• The physical characteristics of the dangerous conditions, such as depth, length, and width, and
• Any and all records, (such as police reports, medical bills, vehicle repair costs, tickets, etc.)

It may also be helpful to take photos or video of the accident scene or any evidence of the accident, including

• other vehicles involved,
• physical injuries, and
• the location of the accident.

3.1. Who is the proper party to sue for my injuries?

This depends on the facts of your case. Ultimately the answer depends on which government entity was responsible for the care of the road on which you were injured by a dangerous road condition.

Your personal injury attorney can determine this by investigating the accident and contacting the relevant government agencies.

Example: You hit a pothole on Main St. in downtown in your city, causing you to lose control and crash. After an investigation, your attorney discovers the city is the responsible party for maintaining this road. The municipality is a proper party in the lawsuit as a defendant.

There may be other parties you can sue besides the government depending on the facts of the case, such as:

• A construction company working on a road,
• The manufacturer of a defective stoplight,
• The company which developed the faulty asphalt on the roads, and
• A truck that spilled oil on the roads causing you to slide.

In general, the government will only be liable as described above, whereas injuries caused by another party may be treated as a typical personal injury lawsuit. An experienced attorney can help you know who should be included in your lawsuit.

3.2. How do I sue subcontractors working for the government?

In many road construction projects, the government hires a contractor or subcontractor to do the actual repair work. If it is the subcontractor’s poor workmanship that causes your accident, the contractor may be responsible for your injuries, as well as the government.

Your personal injury attorney can subpoena the government’s records to determine who the subcontractors are and what responsibility they may have for your injuries. With proper research and discovery (legal exchange of documents) your attorney will ensure that every proper party

• is named in your lawsuit and
• held responsible for your injuries.

3.3. Can you sue for potholes?

People who sustained damages from defective potholes may be able to sue the city and any other responsible parties whose negligence caused the road hazard.

4. How do I prove the dangerous road condition caused my injuries?

In a lawsuit, you must prove that

1.  the government was responsible for maintaining the road and failed to do so, and
2.  the dangerous road condition caused your injuries or damage to your car.

Some injuries may not appear immediately, making it much more difficult to trace the exact cause of the damage.

In the case of a car accident, it is more likely that you will know what caused the accident in your mind. However, you still have to prove that it was the actual cause of your injuries.

If you were driving unsafely at the time, the government will argue it was your driving, and not the road condition, that caused your accident. (Note that under California’s comparative / shared fault laws, you may still be able to recover damages even if you were partially at fault for the accident).

4.1. What information do I need to present to the court?

The specific evidence of your case will depend on your facts, but common evidence that is used in a dangerous road conditions lawsuit includes:

• Witness Reports: Eyewitness accounts of the auto accident and its cause.
• Police Report: Police typically respond to accidents as the result of a bystander call or from your call. Police reports outline the facts, the officer’s observations, and typically include the officer’s opinion as to the cause of the accident.
• Your Testimony: You will be able to testify on your own behalf. You can tell the jury exactly what happened to help prove your case.
• Accident Photos: Photographs of the accident, such as the vehicle damage, your injuries, or the dangerous road condition which caused the accident can be presented to the jury to prove it was the cause.
• Survey Records: Governments typically perform periodic surveys of their roads. This can help determine if the government was aware or should have been aware of the dangerous road condition. ¹
• Medical Records: Hospital bills, rehabilitation costs, estimated future medical bills, and others are all included. Remember, keep everything to give to your personal injury attorney.
• Vehicle Repairs: You will present records of any repair or replacement costs associated with damage to your vehicle that was caused by the dangerous road condition.
• Government Knowledge of Condition: You will need to present evidence that the government:
  • Knew about the condition and did nothing;
  • Did not discover the dangerous condition in a reasonable time; or
  • Failed to correct or repair the dangerous road condition in a reasonable time.

4.2. What will the government argue?

The government does not want to be blamed for your injuries, even if it was at fault. As a result, the government will likely attempt to show that something other than the condition of the road was the cause of your accident. The government may try and argue:

• You were driving in an unsafe manner,
• You were under the influence of drugs or alcohol,
• Your accident was caused by distracted driving (such as, tending to children, texting on the phone, eating while driving, or fiddling with the radio),
• An intervening cause was the actual cause of your accident, such as:
  • Another driver’s negligence,
  • If you spilled coffee on yourself, or
  • A sudden or recent act of nature caused your accident.

The government will also likely argue that it was not aware of the dangerous road condition, or that it had not been given reasonable time to effect a repair.

5. What is sovereign immunity?

Some government agencies have immunity from civil lawsuits. This means that, generally, they cannot be sued for damages by a private party.

This is called “sovereign immunity” when it applies to a state government or the federal government.

It is called “governmental immunity” when it applies to a city, county, or other government entity.

Sovereign immunity can act as a bar to litigation against the governmental entity.²

5.1. Are there exceptions to this rule?

Most government agencies have created exceptions that allow them to be sued under specific circumstances. In California, these exceptions are codified in the California Torts Claims Act.

In most cases, negligent failure to maintain roadways, such as described above, is an exception that allows you to file a lawsuit.

Some governments require a higher finding than ordinary negligence such as “gross negligence” before you can overcome the sovereign immunity principle. Knowing whether an immunity for the government exists, and whether an exception applies, is a legal question.

5.2. What is “government design immunity” in California?

If you sue the government in California for your injuries from a dangerous road condition, at trial the government can present the “affirmative defense” of government design immunity. Your lawsuit could be dismissed if the government can show these three things:

1. There is a causal relationship between the road design/plan and your accident;
2. The road design/plan was approved before being constructed; and
3. The reasonableness of the road design/plan is supported by substantial evidence.

In short, if the government can show that the road was built according to designs that qualified engineers approved, then the government is not liable for your injuries.

In order to overcome the “government design immunity” affirmative defense, you would need to show three things:

1. A change in physical conditions caused the road design/plan to become dangerous;
2. The government had notice (actual or constructive) of the dangerous conditions; and
3. The government had reasonable time to remedy the road or did not provide sufficient warnings.³

6. Is there a statute of limitations in dangerous road condition cases?

Yes. In every state, a statute of limitations exists that limits the amount of time in which you can file your case.

In many states, the statute of limitations period for claims against the government is considerably shorter than the same claim made against a non-governmental party. There may also be separate deadlines for the filing of notices and the lawsuit itself, depending on which state you are in.

If you allow a statute of limitations to pass on your case, you can lose your opportunity to file your case, even if it would have been otherwise successful. Your personal injury attorney will inform you of the proper deadlines for filing.

Certain states, cities, and counties have very short statute of limitations periods, and once they have passed, you may lose all chances for financial compensation.

7. What financial compensation can I be awarded?

Once you and your attorney prove your case against the government, you can be awarded financial compensation for your injuries and property damage. Called compensatory damages, these include:

• Medical bills;
• ER treatment;
• Surgical costs;
• Future medical costs, including rehabilitation;
• Loss of income and future income;
• Loss in earning capacity;
• Loss of consortium;
• Compensation for loss of limbs, scarring, or disfigurement;
• Property damage (such as to your car); and
• Pain and suffering.

In limited circumstances, punitive damages may be available.

If the accident resulted in a fatality of a family member, you can bring a wrongful death lawsuit and obtain:

• Funeral and burial expenses;
• Financial losses; and
• Compensation for loss of support and companionship.

8. Dangerous Road Condition Jury Verdicts and Settlements

• Lawsuit against California Department of Transportation for insufficient shoulder width and steep drop off resulted in $10.6 million verdict.
• Lawsuit against the City of Los Angeles resulted in $28.9 million verdict due to city’s failure to maintain the center lines on the street.
• Motorcyclist awarded $31.5 million injured in a crash. California Department of Transportation held responsible for dangerous road conditions.

Call us for help…

For questions about dangerous road condition accidents or to confidentially discuss your case with one of our skilled California car accident attorneys, do not hesitate to contact us at Shouse Law Group. When you sustained minor or serious injuries, we fight for the maximum possible settlement in your dangerous road case.

Our personal injury lawyers have local law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. Case evaluations are free.

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