If I am suffering after injury to the head due to a pothole, it is worthwhile to sue the city?

Asked about 1 year ago - Morgan Hill, CA

This happened 1.5 years ago, around 7pm in a residential area. I had no flash light on my bicycle. It hit the pothole and I landed my head first. I was diagnosed with post-concussion syndrome. I went back and checked with neurologist, but nothing substantial was found. But I certainly suffered memory loss, hypersomnia (12~16 hours/day for a year, still comes back after physical activities) and now I am suffering from fibromyalgia. I became very sensitive to pain. I managed to graduate from school, but am still unemployed.
I filed a claim to the city and received a claim number, but not a real response. So I believe I have 2 year statute. The pothole existed for at least 3 years and it was patched up 1 year after I filed to the city. Should I sue? Is it worthwhile to go for small claims?

Attorney answers (8)

  1. Fernando Davin Vargas

    Pro

    Contributor Level 15

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    Answered . You do not provide enough information about your injuries to assess the effort of pursuing litigation. However, the bigger issue is that unfortunately, it sounds as though your statute of limitations may have run. Once you filed a government claim, the City had a period of 45 days to act on your claim. If your claim was denied, you had a period of six months from the date the claim was denied within which to file suit; otherwise your statute would have run. If 45 days after you filed your government claim, the City took no action on your claim, you had a period of six months from the 45th day within which to file a lawsuit, or the statute of limitations would have run. A two year statute of limitations applies to private parties; not government entities. Have a lawyer review your claim and any other documents your received from the City in response; and do so immediately. Best of luck!

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  2. Steven Mark Sweat

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    Contributor Level 19

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    Answered . These are tough claims but, depending upon your present prognosis from the neurologist, and the estimated cost of any future treatment, it may be worth pursuing. However, you would need to retain an attorney immediately to review the prior government tort claim and check status and to get a lawsuit filed within the statute.

    Nothing in this communication should be construed as creating an attorney client relationship. This is for... more
  3. Lisa Marie Blasser

    Contributor Level 10

    9

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    Answered . Sorry to hear about your injuries and congratulations on graduating. I agree with my colleagues above and think you may be barred from filing the claim. Look at the notice you received from the City (the letter that provided you with the claim number) to see if the City included any information that might be of assistance. Not to be self-serving, but you may want to hire an attorney to quickly assess your standing at the moment.

    Lisa M. Blasser, Esq. | BLASSER LAW 20955 Pathfinder Rd., Diamond Bar, Ca. 91765 Office: (909) 843-6363 |... more
  4. Daniel Nelson Deasy

    Contributor Level 20

    9

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    Answered . Sit down with an experienced personal injury attorney for a full explanation of your rights!! Taking a city on over a pothole is going to be exceedingly difficult.

    In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship.... more
  5. Robert Bruce Kopelson

    Contributor Level 20

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    Answered . Hopefully you filed a proper claim with the govt entity within 6 mos of the injury. If they sent a written rejection, you had 6 mos from the date they mailed the rejection, to file your lawsuit. If they did not send a written rejection, you have more time to file. If you have blown the statute, you will be out of luck in any court. Im concerned that you may have an undiagnosed head/brain injury. it is important whether you have a case or not, to get appropriate medical testing and treatment asap. A lawyer needs to review your papers asap.

  6. Christian K. Lassen II

    Pro

    Contributor Level 20

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    Answered . Have a local personal injury lawyer investigate the statute of limitations hurdle

  7. Patrick John Phillips

    Contributor Level 17

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    Answered . So many issues. The most prominent is that California's Government Tort Claims Act requires most individuals claiming personal injury as a result of government negligence to file a notice of claim within 6 months of the accident date. Are you aware of this deadline, and if so did you comply with it? If not, it is unlikely you can still pursue a claim at all.

    http://www.johnphillipslaw.com

    This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not... more
  8. Warren Jay Binder

    Contributor Level 4

    4

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    Answered . You may have a statute of limitations problem, but that could be defeated if you were incapacitated or otherwise able to toll statute. Head injuries and memory problems can sometimes help with this argument. Also, if you were a minor this could toll statute? Also, fibromyalgia is controversial injury and often tough to advance in personal injury case. Not to say it cant be done, but always raises red flags. Good luck with this and talk to experienced personal injury litigator asap.

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