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:
- Depending on where your accident occurred, you would sue either the city, county, state, and/or federal government.
- 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.
- Even if you were partly at fault for the accident, you may still be entitled to a financial reward.
- There are specific requirements for filing a claim for damages against the government, and the statute of limitation is usually short.
- 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?
- 2. What is the government responsible for?
- 3. How do I make a claim?
- 4. How do I prove my case?
- 5. What is sovereign immunity?
- 6. Is there a statute of limitations?
- 7. What compensation can I be awarded?
- In the news
- Additional resources
Defective roads can cause damage to your vehicle, lead to an accident, and even cause serious physical injury to you and your passengers.
1. Who is responsible for keeping roads safe?
Generally speaking, the federal, state, or local government must maintain roads 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 due to that failure, you can file a personal injury lawsuit to obtain compensation for those damages.
How does the government learn about dangerous road conditions?
Most states have laws permitting the government a “reasonable” amount of time to learn of dangerous road conditions and a “reasonable” amount of time 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.
What if the government never discovers the unsafe road conditions?
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.
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.
Remember that the government generally has both:
- a reasonable time in which to discover the problem and
- a reasonable time in which to repair that problem.
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 is 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 traffic control in construction zones (such as 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.
What causes these dangerous road conditions?
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.
3. How do I make a claim?
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.
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 a dangerous road condition injured you.
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 that developed the faulty asphalt on the roads, and
- A truck that spilled oil on the roads causing you to slide.
Generally, the government will only be liable as described above, whereas injuries caused by another party may be treated as a typical personal injury lawsuit.
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.
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 my case?
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 resulting from a bystander call or from your call. Police reports outline the facts and 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.
- 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.
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.
(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).
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
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.
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:
- There is a causal relationship between the road design/plan and your accident;
- The road design/plan was approved before being constructed; and
- The reasonableness of the road design/plan is supported by substantial evidence.
In order to overcome the “government design immunity” affirmative defense, you would need to show three things:
- A change in physical conditions caused the road design/plan to become dangerous;
- The government had notice (actual or constructive) of the dangerous conditions; and
- The government had reasonable time to remedy the road or did not provide sufficient warnings.3
6. Is there a statute of limitations?
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.
7. What 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 for:
- Medical bills;
- 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.
In the news
The following are recent news stories involving lawsuits against local California governments for unsafe roadways:
- Another bicycle crash, another $6.5M lawsuit settlement for Oakland – The Oaklandside (Jan. 18, 2024).
- Oakland has paid $35M in 10 years to people injured on its dangerous roads – The Oaklandside (Dec. 12, 2023).
- San Diego to pay $4.8 million after collision left one dead, one injured – CBS8.com (July 23, 2023).
- San Francisco sued for thousands over bump in road that injured 4 – The San Francisco Standard (April 19, 2023).
- Family Seeks $2.3M+ From City of San Diego In Wrongful Death Dangerous Road Condition Trial – Courtroom News Network (April 7, 2023).
Additional resources
For more in-depth information, refer to these scholarly articles:
- Suing Public Authorities: Who Wins – Legal Issues Journal.
- Government Liability and the Public Duty Doctrine – Villanova Law Review.
- The Effect of Automobile Insurance and Accident Liability Laws on Traffic Fatalities – The Journal of Law and Economics
- Lawsuits Arising Out of Reconstruction – Transportation Engineering Journal of ASCE.
- Self-driving Cars and the Law – IEEE Spectrum.
Legal References:
- Caltrans. Office of Land Surveys.
- LII. Sovereign immunity.
- Government Code 830.6. Government Code 835. Jesse Baldwin v. The State of California, (1972) 6 Cal.3d 424. Stacy Cornett v. Department of Transportation (Caltrans) (July 12, 2001) 26 Cal. 4th 63. Barbara Cameron v. The State of California (1972) 7 Cal. 3d 318 (re. active versus passive negligence). Henry Winig v. State of California (1995) 37 Cal. App. 4th 1772 (re. design immunity is inapplicable to construction zones). Hilts v. County of Solano (1968) 265 Cal. App. 2d 161. Johnston v. County of Yolo (1969) 274 Cal. App. 2d 46. Mirzada v. Department of Transportation (2003) 111 Cal App. 4th 802; Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931; Higgins v. State of California (1997) 54 Cal. App. 4th 177. Richard Crawford Wyckoff v. The State of California (June 4, 2001) 90 Cal. App. 4th 45. The Statewide Integrated Traffic Records System (S.W.I.T.R.S.).