Here’s what you need to know about pursuing compensation for pothole injuries. Learn about claims against private and government agencies.
Anyone can trip and fall because of a pothole in a roadway, parking lot, or sidewalk. Trip and fall accidents involving potholes can cause painful injuries that require treatment and time off work.
The property owner must bear responsibility for your injuries if they knew of the dangerous pothole, or should have known, but failed to fix it or warn pedestrians of the danger.
At-fault property owners should compensate injured victims for such losses as medical expenses, lost wages, and pain and suffering. Most trip and fall victims file an injury claim with the property owner’s insurance company, but it’s sometimes necessary to file a lawsuit to get fair compensation.
Holding the Property Owner Responsible
Pothole trip and fall cases are rooted in premises liability law. This area of the law says that property owners must protect visitors or customers by making reasonable efforts to avoid potential harm. For example, owners should try and patch a large pothole, place a warning sign, or cordon off the area.
Property owners don’t have to keep visitors safe from all risks of harm, but they do have to protect them from conditions that are potentially dangerous.
To receive compensation, trip and fall victims have to show:
- The property owner knew or should have known of the pothole
- The owner failed to fix the pothole or warn pedestrians
- The pothole was the direct cause of injury
- The victim has real and verifiable damages
Potholes on Government Controlled Property
Many trip and fall cases involving potholes take place on public property, like in the parking lot of the DMV or a post office, and on roadways controlled by city or county agencies.
Injury claims against a government entity typically require the same evidence you’d need for a claim against a private property owner. Injury claims against a federal, state, or local municipality have short timelines and special paperwork that must be submitted correctly for your claim to survive.
You must file a notice of injury with the responsible government entity. This must be done prior to filing your injury claim. The deadline for filing can be as short as 30-90 days. State statute of limitation deadlines do not apply to government claims.
Consider talking to an accident lawyer as soon as possible after an injury on government property.
Shared Blame for Pothole Trip and Fall Accidents
Many insurance adjusters will try assert that you helped contribute to your trip and fall injuries because of your comparative negligence.
For example, an insurer may try to reduce your compensation by saying that you saw the pothole before your accident but failed to avoid it, or were using your cell phone and not paying attention.
Most states have some type of modified comparative negligence laws that apply when an accident victim was partly responsible for causing the unfortunate event. These laws still allow an injury victim to receive compensation, even if they shared some of the fault, but their recovery is reduced by their percentage of fault in causing the accident.
Case Example: Woman Wins Pothole Injury Lawsuit Against New York City
On February 9, 2004, Lillian Robinson, a woman in her 50s, parked her car and then started crossing the street to return to her Brooklyn home. While walking, she tripped and fell after stepping into a pothole that was covered with black ice.
Mrs. Robinson’s lower leg was fractured in at least two places as a result of the accident. She had to undergo surgery after the incident where doctors had to use rods and screws to help repair her injuries.
Through her attorney, Robinson filed a lawsuit against the City of New York. While the jury determined Robinson’s claim was worth $193,735 for her injuries and pain and suffering, they also found her substantially at fault for the accident for not paying proper attention while she was walking.
Under New York’s comparative fault laws, the jury said she was 80% at fault for causing the accident while New York City was 20% responsible. Mrs. Robinson was therefore awarded $38,747.
Robinson’s attorney appealed the decision and asked a higher court to re-evaluate the allocation of fault in the case.
The Supreme Court of the State of New York agreed with Mrs. Robinson that the allocation of fault was inaccurate. The court modified the lower court’s decision, allocating 45% of the fault to Mrs. Robinson and assigning 55% of the fault to the City of New York.
With her attorney’s help, Lillian Robinson received a final award of $87,180.75 in compensation for her pothole slip and fall damages.
Types of Pothole Injuries
Potholes pose a clear safety hazard as people can step in them, trip, and fall to the ground with potentially serious injuries. The most severe injuries can be life-altering.
In addition to cuts, sprains, and bruises, injuries may include:
- Simple fractures, like a broken arm that only requires a cast
- Complex fractures, like a broken hip requiring surgery
- Severe knee injuries
- Traumatic brain injuries
- Back and spinal cord injuries
Build a Strong Claim with Evidence
Your pothole injury claim or lawsuit won’t get far without evidence of the property owner’s fault, and proof of your damages.
Evidence of Property Owner Liability
It’s sometimes difficult to prove that an owner knew of an unsafe road condition like pothole damage. When possible, collecting evidence is one of the key actions to take after a slip and fall. If you can’t collect evidence because of your injuries, ask a witness to help.
Evidence of property owner negligence includes:
- Witness statements
- Photographs and video taken at the scene
- Business surveillance videos
- Incident reports
If you’re unable to collect evidence immediately after your accident, you or a friend can always return to the accident scene later. Do your best to get a picture of the pothole that caused your trip and fall. Keep in mind the pothole may be repaired in the meantime. If so, try to collect whatever evidence remains.
Evidence of Compensatory Damages
Compensatory damages are economic and non-economic losses suffered as a result of your injuries.
Economic damages for injury claims include:
- Medical costs, including rehabilitation
- Lost wages, past and future
- Property damage, like eyeglasses and clothing
- Out-of-pocket expenses such as medications, crutches, and more
Evidence of economic damages includes medical records and bills, receipts for out-of-pocket expenses, and a wage loss verification from your employer.
Common non-economic damages include:
- Pain and suffering
- Loss of consortium
- Loss of enjoyment of life
- Scarring and disfigurement
- Physical disability
An injury journal can help prove non-economic damages. In the journal, make sure to write down your inability to sleep, embarrassment, fear, and frustrations caused by limitations you’re experiencing because of your accident, and any activities you’ve had to miss because of your injuries.
Seeking Compensation for Pothole Injuries
If you’ve fully recovered from minor injuries, you may decide to handle your own personal injury claim.
You can calculate your claim’s value by adding all your medical costs, lost wages, and any other related expenses, like broken eyeglasses. Then add one or two times that amount for your pain and suffering.
Then send a demand letter to the insurance adjuster with copies of your bills and other evidence.
After a few rounds of negotiations with the adjuster, you should be able to reach a compromised settlement. You have the right to seek legal advice from a personal injury lawyer at any point in the negotiations.
When You Need a Trip and Fall Attorney
Complicated or high-dollar injury claims should be handled by an experienced personal injury attorney to ensure the best outcome for the injured victim.
Complex pothole accident claims may include:
- Permanent disability
- Wrongful death
- Allegation of victim’s fault
- Pre-existing injuries or medical conditions
- “Eggshell” victims of advanced age or frailty
Most personal injury law firms offer free consultations and will accept your case on a contingency fee basis. With this fee arrangement, you won’t pay attorney fees unless your claim settles or you win in court.
These cost savings help make legal help more accessible in trip and fall cases. If you have questions about your claim, contact a qualified personal injury attorney to get the assistance you deserve.