Bumpy Road for Pothole Liability

This week’s question comes from Jennifer in Mill Valley, who writes,

Q: After this year’s rainy winter, new potholes seem to be appearing daily. After I predictably blew a tire a few weeks ago, I thought I’d write a note to the city asking for reimbursement of the cost of replacing my tire. I just received a letter back stating that my claim, which was for less than $150, had been denied. I’m not going to pursue legal action over such a small sum, but I’m irked that the city is able to skirt responsibility for probably hundreds of similar cases, when their roads don’t seem to stand up to the weather.

A: Thank you for your question, Jennifer, and you have my sympathy in this frustrating and all-too-common situation. Potholes are indeed more prevalent after heavy rains, as water seeps through pre-existing cracks in the asphalt and settles underneath, making the ground more susceptible to erosion and sagging as vehicles travel over top. And while this seasonal occurrence seems predictable enough, a city is often not held liable for damage caused by any particular pothole.

A city, like any other property owner, is charged with maintaining their premises in a reasonably safe condition. However, reasonable does not mean perfect and maintenance is not expected to be instantaneous. For example, a deviation in a road’s level measuring under one inch will generally be deemed “trivial” as a matter of law and, therefore, not deemed to be the city’s responsibility. As such, many damages resulting from potholes may simply not fall within any property owner’s scope of liability.

As discussed in previous columns, California Government Code §§ 830 et seq. lays out the rules for liability stemming from any “dangerous condition of public property,” defined as a condition that creates a substantial risk of injury when such property is used with due care in a reasonably foreseeable manner. Cal. Gov. Code § 830.2. Courts have held these conditions to include premises that are “physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.” Cordova v. City of Los Angeles (2015). This description would seem to clearly implicate potholes that make driving on city roads dangerous.

However, the existence of a non-trivial dangerous condition itself does not mean that a city is liable for damages it causes: the “dangerous conditions of public property” doctrine further requires that the city have either (1) caused it via negligent conduct, e.g. during roadwork, or (2) were actually aware of it (actual notice), or should have been under the circumstances (constructive notice), and had sufficient time to make appropriate repairs. Cal. Gov. Code § 835. Conduct is deemed to be negligent if the actor unreasonably failed to exercise due care, determined by weighing the probability and gravity of potential injury against the practicability and cost of alternative action. Cal. Gov. Code § 835.4. A determination of constructive notice may involve analysis of the dangerous condition’s severity and visibility, as well as the frequency of traffic to the location and occurrence of any previous adverse events, among other factors. Therefore, unless the pothole was specifically and unreasonably caused by a city itself or lay conspicuous and unrepaired for an unreasonable amount of time, the city will still not be held liable for any damages due to even the worst pothole on the road.

Even if all these statutory requirements are met, a city may still raise a number of defenses to defeat liability. It may argue that it had exercised due care by blocking off the location or posting warning signs to prevent the vehicles from making contact with the pothole; alternatively, it may argue that the pothole was in fact so “open and obvious” that no such blockade or warning sign was necessary and the damage was solely attributable to the driver’s inattention to road conditions. A city may claim “design immunity”; that is, it should not be held liable for risks incidental to a previously-approved road design, where the approval was made in the discretion of an appropriate decision-making body based on substantial evidence of the design’s reasonableness. Cal. Gov. Code § 830.6.

As you can see, your frustration with the city’s response is quite likely not due to the obstinance of the city’s legal department, but rather the law itself. However, it is still very important for you to report poor road conditions! Not only will reporting increase the chance that the condition will be promptly repaired, it will also put the city on actual notice of the defect, increasing the chance that it will be held liable for future damages if appropriate repairs are not made. There is a good chance that your reporting will help prevent damage to someone else’s vehicle or even someone being seriously injured.

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Go slow in the rain

There are two types of hydroplaning: viscous hydroplaning, associated with lower speeds on roads with little to no texture, and dynamic hydroplaning, which can cause total lack of control over steeting and braking.

This week’s question comes from Holly H. in Berkeley, who asks:

Q:“My wife was traveling on a roadway which has a 45 mile an hour limit. It had been raining very heavily for several days but the weather had cleared for at least 4 hours.  She was driving about 30 and everything was fine. As she came around a bend, there was an a huge lake of water in her lane. Her car lost traction, she couldn’t break or steer, and she crossed into the other lane colliding with another car. Thank God no one was seriously injured but someone could have been killed.  After the collision a nearby neighbor came out and said that there was a storm drain which had been backing up there all year and despite calls to the Public Works Department nothing had been done and this was the third accident there this year.  What rights do people have when the drains are not being maintained and they are harmed?”

A: Holly, according to the National Highway Traffic Safety Administration, the second greatest factor in causing collisions (2 percent) is environmental conditions such as rain, snow, etc.(The greatest factor, 94 percent, is human error.)

What you describe is the phenomena known as “hydroplaning.” On wet or flooded pavement hydrodynamic pressure increases as the speed of the vehicle increases eventually leading to the tire losing contact with the roadway.   There are two types of hydroplaning: 1) viscous hydroplaning or 2) dynamic hydroplaning. Viscous hydroplaning is a problem associated with low speed operation on pavements with little or no texture. We see this frequently in rear end collisions during or following rainy conditions. Dynamic hydroplaning occurs in situations with a more significant depth of water as a water wedge is driven between a moving tire and the pavement surface causing a complete separation of tire and roadway. What you describe is full dynamic hydroplaning, a serious life and safety hazard, causing a total lack of control over steering and braking.

Under California Law a government entity: city, county, or state, can be held liable for a dangerous condition of public property if they fail to maintain the roadways, and drainage, in a reasonably safe condition.  The condition must cause more than a trivial risk of harm of the type that was suffered and the entity needs to have actual or constructive knowledge of the condition with sufficient time to remedy it and have failed to do so.

Actual knowledge is when they know about the condition by seeing it themselves, being informed by others, or when they themselves cause the condition to exist.  Constructive notice is when the condition, and its dangerousness, should be apparent to them by a reasonable inspection system or, perhaps, in this situation if they have had to come clean this drain numerous times or they are aware of numerous accidents happening under the same conditions.

I have handled many similar cases as the one you present here. Most involve known flooding areas, improperly constructed roadways and/or blocked or broken drains.  Unfortunately, these conditions can often prove deadly.

It appears that the entity had actual notice based on the neighbor’s complaints. Additional evidence of notice can be obtained by obtaining DPW documents pertaining to the drainage at that site. 

A usual defense is that the driver was traveling too fast for the conditions (Veh. Code 22350). Given the break in the rain, your wife’s reduced speed, and the fact that the pool of water was around a corner, this defense could probably be surmounted.

My best advice to everyone, check your tread depth (it should be at least  4/32 in the front and 2/32 in the rear ), properly inflate your tires and as my daughter says “avoid the pain, go slow in the rain.”

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Who’s responsible for maintaining the Richmond-San Rafael Bridge?

This week’s question comes from Shawn J., in Novato, who writes:

Q: “I read your column every week. I was heading home from an appointment [earlier this month] in the East Bay and got stuck for hours when the Richmond Bridge was shut down because of falling concrete. While I was sitting there, I was wondering who would be responsible for any injuries caused if the concrete crashed through a windshield, or caused someone to swerve, leading to injury? Later it turned out that only a car was damaged, thank God, but the question still lingers in my mind.”

A: Shawn, first of all, thank you for being a loyal reader. It feels good to know people actually read this column! Believe it or not, sometimes it takes up to three hours to research and write as I strive to provide substantive responses with citations to California statutes and case law.

 

The Richmond-San Rafael Bridge, connecting Marin and Richmond along Highway 580, opened in 1956. It is a 5.5 mile long cantilever and truss bridge with a steel structure and a concrete deck, different from the Bay and Golden Gate Bridges, which are suspension bridges. It was originally three lanes but, in 1977 it was narrowed to two to accommodate a massive water pipe feeding water from the East Bay to Marin during a drought that left Marin with no other reliable water source. In 1978, when the pipe was removed, the third lanes were not reopened to traffic. In 2018, given a double-digit increase in traffic volume, a third lane was opened on the westbound lower-deck during rush hour. The third lane on the upper deck is slated to become a pedestrian/bike way.

As the bridge reached its originally projected useful life, a $762,000,000.00 retrofit project was completed in 2005 by Tudor Saliba, a major highway and civil engineering firm, under contract with CalTrans. The work included retrofitting and reconstruction of the decking’s concrete and expansion joints. This is the ultimate source of the concrete’s failure and Thursday was not the first time since then that concrete has fallen onto the lower deck. In early 2006, just months after the retrofit was complete, concrete chunks fell from holes in the upper deck, leading to another $25,000,000.00 in retrofit costs.

The bridge is under constant physical stress, and not only from its substantial traffic flows. The bridge connects land sitting on the Rodgers Creek Fault, running through Marin and Sonoma, with land on the Hayward Fault, which runs through the western part of Alameda, and tremors regularly test the bridge’s retrofitting, designed to withstand a 7.4 magnitude quake on the east and an 8.3 quake on the west. The bridge is also subject to high winds that put lateral stress on the structure and cause bridge closures from time to time. The most recent structural failures appear to be occurring in the expansion joints, which look like zippers connecting stretches of concrete and allow the roadway to expand and contract under various loads, temperatures, tremors, and wind conditions. CalTrans claims to have inspected the joints last August and found no problems.

Under California Code of Civil Procedure Section 337.15, which sets a ten year statute of limitations for “latent” property defects not apparent on reasonable inspection, the contractors, designers, and engineers who retrofitted the bridge in 2005 are most likely free and clear of any responsibility. However, CalTrans may be responsible under Government Code Section 830, which prohibits maintaining a “dangerous condition of public property,” defined as a non-trivial defect that creates a substantial risk to people using the property with due care. Govt. Code Section 835 provides for governmental liability if “the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and . . . either: (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. Actual notice occurs when someone is actually aware of a defect as a result of inspection, observation, or report. Constructive notice exists when there was, or should have been, an inspection program to evaluate safety hazards (if funds and means existed for such a program) and a condition had existed long enough that a reasonable inspection should have led to the discovery of the condition and its dangerous character.

I believe a legal basis exists to hold CalTrans liable. If injury is caused in the future by falling concrete, CalTrans will most certainly be held accountable. Let’s hope it doesn’t come to that.

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Consequences of Vehicular Homicide

Jane in San Rafael asks: “I am an avid bicyclist and supporter of the Marin and San Francisco Bike Coalitions. It is frightening to ride on city streets. Last week there was a DUI-related fatality in Marin and another bike death in Windsor. What does the law do to punish people that kill bicyclists? Maybe letting readers know of the penalties might help them think twice and prevent more of these deaths.”

 

Jane, as a supporter of the Marin, Oakland, and San Francisco Bike Coalitions who rides with his children, I am horrified to see the increase in injury and death occurring in the cycling community. I am intimately familiar with the case in Windsor: we have been retained to represent the family of the young woman who was killed by a large truck. The Marin case, involving the drunk driver, is very tragic: people ruining their own lives by drinking is a shame, and when they kill innocent people on top of that, it’s criminal.

 

According to the National Highway Traffic Safety Administration, 3602 people were killed in California motor vehicle collisions in 2017. The majority of fatal collisions involve more than one vehicle and other vehicle occupants are the most likely victims of fatal collisions, followed by pedestrians, motorcyclists, and bicyclists. Thirty-one percent of these involved at least one driver with a blood alcohol level above the legal limit and 20 percent involved a driver with at least twice the legal limit. California Vehicle Code 23152 makes it unlawful for a person who is under the influence of any alcoholic beverage or drug to drive a vehicle while intoxicated, which is presumed at a blood alcohol level of 0.08 percent or greater, by weight. Commercial drivers, and drivers carrying passengers in exchange for compensation (taxis, Uber, Lyft, etc.) are presumed to be intoxicated if they have a blood alcohol level of .04 percent or greater.

 

Accidental deaths caused by motor vehicles generally fall under the rubric of vehicular manslaughter. California Penal Code (CPC) Section 192(c) defines vehicular manslaughter as the unlawful killing of a human being while: (1) driving a vehicle in the commission of an unlawful act (not a felony); or (2) driving a vehicle in the commission of a lawful act which might produce death in an unlawful manner. Vehicular manslaughter may be committed with or without gross negligence, defined as so slight a degree of care as to raise a presumption of a conscious indifference to the consequences. Causing death while perpetrating an accident insurance scheme, where the vehicular collision was knowingly caused for financial gain, may also be tried as either vehicular manslaughter or murder. If the driver is acting lawfully in a lawful manner, a resulting death is not considered a homicide.

 

According to CPC Section 193, the sentencing and punishment for vehicular manslaughter depends upon whether the offense is charged as a misdemeanor or felony. A misdemeanor vehicular manslaughter conviction is punishable by up to one year in county jail. A felony vehicular manslaughter conviction is punishable by up to six years in state prison. We recently handled a case on Highway 680 where a slow-moving construction crane, without its lights on and without warning or guides, entered the freeway from a staging area directly into 65 mile per hour traffic, causing death when another driver collided into the rear of the crane. In that case, the defendant crane driver plead no contest to vehicular manslaughter and was subject to a year of house arrest. The driver and the insurance company representing the business paid many millions to compensate the family for the loss of their husband and father.

 

Cases where the driver was intoxicated often command more severe penalties under CPC Section 191.5 defining “gross vehicular manslaughter while intoxicated.” Gross vehicular manslaughter while intoxicated, if committed without malice, is punishable by imprisonment in the state prison for up to four years; with malice, for up to 10 years. A person with one or more prior convictions of drunk or reckless driving who causes a fatality is subject to imprisonment in state prison for a term of 15 years to life. Gross vehicular manslaughter while intoxicated may be charged even if the driver’s blood alcohol level does not exceed the legal limit, as well as when an impaired driver is not the sole cause of death. In one case, a man with a blood alcohol level of .03 percent was traveling late at night on his way home from a concert, proceeded to fall asleep and rear-ended a car. After the initial accident, the occupants were able to get safely to the shoulder, but a truck driver, not paying attention, swerved to avoid collision with the car and killed the passenger of one of the vehicles. The impaired driver who caused the initial collision was charged with gross vehicular manslaughter while intoxicated.

 

Finally, if the driver’s conduct rises to a such level of wantonness as to support a finding of “implied malice,” it may be prosecuted as second degree murder. “Malice” is the mental state that distinguishes manslaughter, caused by the perpetrator’s criminal negligence, from murder, in which the perpetrator either intends to kill or acts deliberately with conscious disregard for human life despite knowledge that their conduct is dangerous. The California Supreme Court, in its seminal 1981 decision, People v. Watson, held that the statutory language crafted specifically for vehicular manslaughter does not preclude a charge of second degree murder where a perpetrator exhibited subjective appreciation of a high degree of risk to human life. In that case, the defendant had driven over 80 miles per hour in a 35 mile per hour zone with more than twice the legal blood alcohol level. When a driver willfully consumes alcohol to the point of intoxication, knowing that they will later operate a motor vehicle, they can be held to exhibit a conscious disregard for human life. The capability of the intoxicated driver to form malice in the act of reckless driving may later be evaluated with respect to a diminished capacity defense.

 

The vehicular homicide cases I have handled have involved people from all races and socioeconomic backgrounds. The law doesn’t discriminate between a rich guy driving a Porsche and a poor laborer driving a beat-up pickup truck. District Attorneys have little sympathy for drunks or unlawful drivers who cause harm or death. I hope that anyone reading this will refrain from driving even if they have had “only a couple of beers.” My heart and prayers go out to the families of the bicyclists who have been so senselessly killed.

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What Are The Rules Of The Road For Emergency Vehicles

Nate from Oakland writes: I know, of course, that police and fire trucks are entitled to speed down city streets with sirens and flashing lights when responding to emergencies. But I’m sure I’m not the only one to have also seen police cars slide through red traffic lights for no apparent reason. Is this legal? What are the rules of the road for emergency vehicles and what happens if someone is hurt by one, for example, running a red light?

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Outrage Over Road Rage in Marin — Legal Consequences

On Saturday October 7, a beautiful Indian summer day in Marin, approximately 1,300 cyclists gathered to ride through the rolling hills of Marin to support the Marin Bike Coalition in its annual Jensie Gran Fondo.  As the day went on, what started as a fun-filled day turned to tragedy when the driver of a blue Dodge Ram pickup allegedly swerved to the right and struck 4 bicyclists knocking them to the ground and then sped off.  The hit and run collision is the worst injury in the event’s history.

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How Does Motorist Insurance Affect Rideshare Drivers?

This week’s question comes from a reader identified only as “Bob” in Los Angeles who asks, “I was reading your columns online and I see that you write a lot about Lyft and Uber. I drive for both. While driving recently late at night from LAX I was sideswiped by a pickup truck driver who changed lanes suddenly without looking. I slammed on my brakes to try and avoid colliding with the truck but it hit the front of my car forcing me into the concrete dividing wall. The front and left side of my car is wrecked. My airbag went off and both the passenger and I were injured. The police came and took a report but I don’t have the license plate of the pickup truck driver. I told the company and they told me to submit a claim with my insurance company. What should I do?”

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Can I Sue For A Car Wash Traffic Collision Injury?

car wash collision injury lawyer

Karen in the East Bay writes, “Chris, I need your advice. I took my car to a neighborhood car wash. While I was going through the wash, the car behind me accelerated and reared ended my car. At the time, I was reaching for papers in the glove compartment. The force from the collision, while not great, was enough to shove my head into the dashboard. I ended up with a nasty gash above my eye that required stitches and may leave a permanent scar. I also suffered a neck injury, which hopefully will heal through physical therapy.

I don’t know how the driver of the car behind me hit me. It might not matter. He doesn’t have car insurance. The car wash owner claims he has no responsibility because there was nothing wrong with the car wash’s machinery.

My friends joke that I got into a collision inside a car wash.  I am not laughing. Incredibly, I am already looking at over $10,000 in hospital and medical bills. What should I do?”

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Rideshare And Food Delivery Driver Car Crash Insurance/Prop 213 Questions Answered

Ray from the Sunset District writes, “I deliver meals for one of the app food companies. Last week, my car was in the shop so I was driving my girlfriend’s new motorcycle when a driver for national package delivery service company pulled out of a driveway without looking and drove right into my path. We collided and I had to go to the hospital for a broken collar bone and some fractured ribs.

The driver claimed I was speeding. At most, I was going slightly over the speed. The driver was not injured but the rear of his van was smashed. His company’s insurance company is demanding I pay for the repair costs. My girlfriend’s motorcycle was a total loss. I have $16,000 in hospital bills.

I found out after the crash that my girlfriend did not have motorcycle insurance. She owns another motorcycle that is insured but hadn’t yet put her new bike on the policy. I have a policy for my car but don’t know if that helps. I asked about my situation on a message board for ride share drivers. One person said I don’t have any coverage under “Prop 213” because the motorcycle was not insured. Another person said I must not tell my insurance company I was delivering meals. What’s the real answer? Aren’t all app drivers covered by the company’s insurance?”

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