What to do if you hurt yourself in a city pothole

What to do if you hurt yourself in a city pothole

Susan R.  Miller
 | 
You’re walking across the street when suddenly … boom! You’ve face-planted into the pavement. You look just behind you to see a water-filled pothole. It’s not all that unusual, especially this time of the year when in many states snow and ice have melted and roadways crumble.
 
Most roads are maintained by a city, county or state, which means the government might be held liable for your injury. In rarer cases, roads are maintained by the federal government, which is governed by the Federal Tort Claims Act, a complex law that allows certain types of lawsuits against a federal government entity.
 
Historically, public entities were immune from liability via something called "sovereign immunity." The idea is rooted in the divine right of kings, with the belief that when acting in his official capacity, "the king could do no wrong."
 
Today, a governmental entity, under certain circumstances, can be held liable, but there are many challenges, says
 Mark Packo a personal injury attorney with Ged Lawyers iin West Palm Beach. “Before you can even file a lawsuit, you will have to file a written notice of claim with the government entity that you plan to sue.”
 
There are specific requirements and strict time limits associated with filing the written notice and they can vary from state to state. If notice isn’t provided, your claim can be barred, so it’s best to consult an attorney immediately after the incident.
 
Once a lawsuit is filed, the individual will generally have to prove several things:
 
  • That the city either knew that there was a pothole and failed to fix it, or that it was there long enough that the city should have known it was there and should have fixed it before someone was injured
  • That the pothole was deep enough to present a danger.
  • That the injured party’s medical bills are high enough and the was injury serious enough to allow them to sue under the appropriate statutes. 
 
Collecting Evidence
While getting photos immediately after an injury occurs may not always be feasible – after all you may be in a lot of pain – getting photos of the scene as it was when the accident occurred is important.
 
“You want to preserve the evidence when possible,” says Packo. “Things might get corrected before you take pictures. At the same time, however, you don’t want to claim to have been seriously injured and be running around taking selfies.”
 
In every premise injury case there is something called comparative negligence, which is a way to allocate damages when both parties are at fault. Was the pothole open and obvious? Was there a warning sign? Was the government entity aware of the pothole, yet failed to fix it? Those are factors that will be taken into consideration when determining liability and damages.

 
While anyone can file a lawsuit, not every lawsuit is worth filing. There are many factors that will have to be taken into consideration. It’s always best to consult with a qualified personal injury attorney immediately after your injury who can assist you in determining your next steps.

 
This article is intended to convey generally useful information only and does not constitute legal advice. Any opinions expressed are solely those of the author, not LawChamps.
 
 
 
 
 
Susan R.  Miller

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