Potholes: A Springtime Menace
With the return of the spring, comes the spread of potholes and they seem worse every year. We can keep our eyes out for the giant potholes, yet sometimes it seems as if our car wheels seek them out. Sometimes hitting a pothole does no more damage than interrupt a pleasant drive. Other times, a pothole can throw the car out of alignment or cause a blow out. I remember one Christmas Eve driving home to Long Island from my parent’s house in Westchester, when we hit a particularly nasty pothole on the Cross Island Parkway and soon found ourselves on the side of the road with a blowout. Five other cars joined us in the dark changing tires so you know that was one nasty pothole.
Potholes can cause car accidents and clients often ask personal injury attorneys who handle car accidents: can we hold a municipality responsible for an accident caused by a pothole? As is often the case in the law, the answer is “it depends.”Â
To seek damages from an accident caused by a pothole, one needs to fulfill the following requirements:
Determine who is responsible for maintaining the roadway:Â Who owns the road? The State, the county or a town? And who is responsible for maintaining a road? For example, the State may own a road yet have a contract with a town to maintain the road. In that case, the Town may bear responsibility for potholes in the road.
Did the municipality have prior written notice about the existence of the pothole? In many ways, potholes are a result of an act of nature. New York State Law allows municipalities to require prior written notice about the existence of a pothole before the municipality can be held liable for any damages caused by that pothole. To the best of my knowledge, every municipality has passed a local law taking advantage of this protection.
Each municipality can designate who is to receive that written notice. For example, in the Town of Huntington on Long Island, the prior written notice must be made directly to the Town Clerk or the Town Supervisor of Highways. The Court of Appeals has ruled that written notice to any other Town official, even the official who is responsible for maintenance, does not meet the requirements of the statute. In the City of New York, the local law allows for broader notification. The prior notice requirement is met if written notice was made to the Commissioner of Transportation, if any City department acknowledged in writing the existence of the pothole or if a claim had already been made for damages caused by that particular pothole.Â
 If you have been in an accident caused by a pothole and you suffered significant damages, then it is worthwhile to see if the municipality should bear responsibility for the accident. An experienced attorney can help you determine if a case exists. Usually, a Freedom of Information Law (FOIL) request will determine if prior written notice existed. Sometimes a case may require additional investigation.
What causes all these potholes? Asphalt covers most roads, but underneath most roadways you will find layers of gravel, sand and compacted earth. Potholes form when the asphalt surface cracks due to heat or changes in weather and the stress caused by traffic, particularly heavy trucks. These cracks allow snow and rainwater to seep into the underlying dirt and gravel and cause the underlying layers to shift. Sometimes pockets open under the asphalt. When the weather gets cold, the water under the roadway will freeze and expand leaving a hole when the water eventually melts. Drivers continue to drive over these unseen holes, putting even more pressure on the asphalt layer covering them. Eventually, the asphalt over these holes collapses, creating the potholes. Given all the snow and rain we have had this winter, this spring will produce more potholes than usual.
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Originally published here.
Carol L. Schlitt has practiced law in New York for 23 years. She has operated her solo practice since 1997. Previously she worked as the Assistant Corporation Counsel – Senior Trial Specialist for the City of New York and as an associate for the Manhattan firm of Acito and Klein. She is a past winner of the New York City Municipal Attorney of the Year and has her case listed among the Top Ten Civil Verdicts in New York.
A testament to Carol’s legal prowess can be seen in the fact that attorneys throughout the New York metropolitan area retain Carol as their personal injury lawyer to try cases for their clients and to assist them in other legal matters. When they want the best personal injury lawyer, they turn to Carol L. Schlitt.
If you have suffered a personal injury, you may be entitled to compensation. If you think you have a case or if you have questions, please call me and I will be glad to discuss your rights, answer your questions and help you with a potential case. You can call me at 1-800-660-1466 or send me an e-mail at Carol@SchlittLaw.com or visit the website www.SchlittLaw.com. The consultation is free and I will be glad to help you.