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Unidentified road construction hazard causing accident

Colorado Springs, CO |

The city has road construction where it is covering roads with an adhesive of some kind, and then loose gravel spread over the top. At some time later (hours, days) a large truck would drive over it to compact it.
In my situation, this gravel was spread over a turn/merge lane between 2 intersecting streets. Without any signs, I had no warning of the upcoming hazard. I was riding my motorcycle, and as I approached the turn, I could finally see the gravel, and slowed as much as I could, but it was not enough. Upon hitting the gravel, my bike slide out from under me.
After talking to City Claims, they told me the government is immune to placing road construction signs.
Can that possibly be a law? If so, what right do I have as a city taxpayer and citizen to be kept safe on these roadways? I was well below the posted speed limits and driving in a very safe manner. I have pictures of the road approaching the intersection showing that no signs were posted.
Can I pursue this in small claims court if the govt is "immune"?
Thank you.

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Attorney answers 1



We practice law only in California and each state's laws are different. Having said that, I ride motorcycles (mostly motocross) and always enjoy helping other riders protect their legal rights.

The question is not whether or not signs were posted, the real question is whether or not your local or state governmental entity (or employee) caused an unsafe condition resulting in your accident. Another question is whether or not your particular governmental agency is immune from liability because of state or federal law.

Bottom line, consult experienced local counsel to get your questions answered. Here is a brief overview of governmental liability…

Federal Government Claims- Under certain circumstances, individuals may be able to recover against the federal government for personal injury, wrongful death, and property damage caused by the negligence of a federal employee, acting in the scope of his/her employment.

A person is generally found to be acting within the scope of his/her employment if his/her conduct was authorized by competent authority (for example, a supervisor or a standard procedure), and was serving, at least in part, a governmental purpose. If an individual is injured by the act or omission of an independent contractor retained by the federal government, the government might be held liable for the contractor's negligence if the plaintiff can show the government had the authority to control the detailed physical performance of the contractor and exercise substantial supervision of its day-to-day activities.

Even if they occur on government property, the federal government cannot be held liable for the intentional acts of assault, battery, false imprisonment or false arrest, abuse of process, or malicious prosecution, with limited exceptions as they apply to law enforcement officers. Also, the federal government cannot be held liable for damages or injuries that stem from the performance of, or failure to perform, a discretionary function.

State Claims- An individual wishing to bring a premises liability claim against a state or municipal government entity will be bound by the state's government immunity laws. Many state immunity statutes limit liability for premises defects; some do this by establishing a relatively low standard of care owed to those on government property.

For example, some state immunity statutes require that the government exercise that level of care which a private person would owe a licensee on private property, rather than the "ordinary care" standard that has been adopted by most states for actions between private parties. In addition, some states create different standards of care depending on they type of defect at issue, and whether the injured party paid to use the property.

Several state immunity acts limit governmental immunity where a case involves a "special defect," which is a premises defect that is more dangerous than most because it presents an unusual and unexpected danger. A special defect is typically a condition that endangers ordinary users of a highway, road, or street, and usually does not have to have been created by the government entity to require the government to act to prevent injuries. For example, if a storm knocks a tree into a roadway, the government might be held liable for injuries resulting from the tree's presence if the government knew or, in the exercise of reasonable care should have known, of the problem.

Finally, as with claims against the federal government, state immunity statutes have written notice requirements and notice of claim requirements, with which an injured party must comply prior to filing a lawsuit against a government entity.

The above information is provided for discussion purposes only.

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