Written by attorney Mark Michael Campanella

Help! A Pothole Just Swallowed My Tire!

In keeping with a winter theme, here’s another puzzler for you. We all know that driving New York roads during the winter can be a hazardous proposition, especially during significant freeze and thaw cycles when monster potholes can appear out of nowhere. Most of us have encountered a pothole and come away no worse for the wear. Occasionally, however, a driver stumbles on one that can wreak all sorts of havoc, from a tire blowout to a bent rim to a catastrophic accident. When any of these things happen, do you have any recourse against the entity that owns and controls the road?

The sad reality is that your ability to recover under these circumstances is often times extraordinarily difficult, and with good reason. At least during the peak months when potholes are most prevalent, New York has stacked the cards against its denizens. What does that mean exactly? Well, for better or worse, New York state effectively exempted itself from any liability for damages caused by potholes that occur on state owned roads between November 16 and April 30.

Section 58 of the New York’s Highway Law states in no uncertain terms that: “The state shall not be liable for damages suffered by any person from defects in state highways, except between the first day of May and the fifteenth day of November on such highways as are maintained by the state."

I suppose the takeaway lesson from this law is simple – if you’re going to hit a pothole in New York, either try to do so on state owned roads outside of their peak season, or alternatively, do so on a road not owned, controlled or maintained by the state. Most local jurisdictions don’t have laws exempting themselves from liability caused by potholes, so your chances of recovery in those instances are slightly better than against the state.

Regardless of whether the damage you suffer is caused on a state road during pothole “off season" or on any other road within the state, the likelihood of recovery is still pretty slim. The reason I say this is simple. As the damaged party, it is your responsibility to demonstrate that the municipality which owned the road where the pothole was located not only had prior notice of the defective road condition, but that it had a reasonable amount of time to repair the pothole. This can be a very difficult burden to overcome. In addition to proving notice, the injured party must demonstrate that the pothole caused the damage to his vehicle, as well as present proof of how much the damages cost to repair.

At the end of the day, if your vehicle ends up the victim of one of these monster potholes and you do choose to seek compensation for your troubles, here are a few things you’ll need to remember:

  • Always confirm the identity of the municipality that owned the road where the pothole was located.

  • Once you’ve confirmed the owner of the road, place the jurisdiction on notice of your claim. These claims are typically filed with the town attorney or town clerk’s office, and should contain the specifics not only about what happened and where exactly, but should also set forth your proof. Perhaps the most important note to remember is that the municipality must receive your claim within NINETY (90) DAYS of the incident or you may forfeit your claim. Always act as quickly as possible because the last thing you want to do is waive your rights. Never hesitate to call the municipality in question to confirm to whom your claim should be sent, as sending it to the wrong party can also be a basis for the municipality disclaiming responsibility.

  • Evidence is key! From the very start, keep good records. Take pictures of the pothole; Measure the pothole; Make note of its exact location on the road; Record the time and date of the incident; Take pictures of the damage caused to your vehicle; Keep vehicle repair receipts. The more you can do to bolster your claim, the better off you will be.

  • Check the municipality’s own records for prior notice. As suggested above, if the municipality had notice of a pothole but chose to do nothing after having a reasonable time to address it, it could potentially be liable for your damages. An easy way to find out about any prior notices the municipality may have received is to issue a Freedom of Information Law (FOIL) request. These can typically be issued through a letter addressed to the municipality’s records keeping officer.

While these claims can be difficult to prove, vehicle owners should always do what they can to protect their interests, especially in the event that an accident or bodily injury results from an encounter with a pothole. It’s never certain how the facts with pan out, but unless an injured party investigates and remits the necessary claim, the only certainty is that he will not be compensated for his damages.

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