Well, if the accident occurred on a public road, as most of them would in these cases, the claim would be against the public entity. And while this isn’t part of the question, you need to know that filing a claim against a public entity has a very different time constraint than filing a claim against a private person or private entity. You must comply with the requirements, which means you must file a claim in the state of California within six months. And then you must file it properly and with the right entity within six months of the date of the accident. And then you must go further, and within 45 days after filing that claim, you’re going to get a rejection, or you might get a rejection even sooner than that. From the date that you get that rejection or if they don’t reject, you have another 45 days. Then you must file a lawsuit within six more months.
So basically, you must file that lawsuit within about a year’s time from the date of the accident or within six months from the date that your claim has been rejected. Now, do you have a claim against the public entity? That’s not an easy one to present. Potholes are known to occur, and the county or the state or Caltrans isn’t out there always able to fix every one as soon as they occur. So, you must prove a lot of things. You must prove that the pothole was there for a long enough period, such that the state or the public entity should have known about it, and you must find out how diligent they are about having crews go out looking for potholes and repairing them. Sometimes the financial ability of the county, if it’s a county road, or the city, if it’s a city street, comes into play. If they financially can show that it would be a hardship on the community to be able to repair these things, they’re going to be cut some slack. Not every pothole is going to be a situation where you’re going to have a remedy.
If you can show that the governmental entity has not been diligent and had not acted appropriately and exercised appropriate control within its financial budgetary constraints to inspect and repair these kinds of problems, and if you can show that the pothole itself was a materially deficient or in defective condition, then you might have a claim. They’ ae going to argue that there may be some comparative fault on your part for not paying attention to where you’re going. If you had been looking where you were going, you might have seen it and have been able to avoid it. There are many factors that will come into play. Claims against governmental entities are always more difficult than against private entities or private individuals, and in this case, it just depends on the factors that I mentioned.
And what if it occurs on a private entity or a homeowner’s lot?
If it’s on a private driveway or something, then you go back to the basic rule of law is, “Did it exist for a long enough period such that the owner should have known about it or did know about it?” An owner ought to know about it since most potholes don’t develop instantly, and once they’re there, they’re there for a while and thus becomes a condition that the owner should be aware of.
If it’s a situation in an area where he knows or expects pedestrians or bicyclists will be riding or walking, then he has a duty to fix it. He has a duty to put up a warning sign and say, “Be aware” to tell you about it, or put up a barricade, or barrier of some kind to obstruct people from having to walk over it, or ride their bike into it. And failure to do that will be considered negligence. You have the negligence and you have the causation. It’s the landowner’s negligence that caused the problem to exist, or allowed it to continue to exist, and that’s what caused the accident, and therefore you were injured.