Who is responsible for damage caused by a stolen vehicle?

Written By: Chris Dolan and Eric. St. John

This week’s question comes from Trisha from San Francisco, CA, who asks: I saw a car speeding away from a police run into a fire hydrant and almost hit several people. It turns out it was a stolen car, and the thief ran away from the scene. If someone steals my car and uses it to damage private or public property, will I have to pay for that? Who pays for this type of damage? What if a driver of a stolen car injures me?

Hi Trisha, 

On average, in California, nearly 200,000 vehicles are stolen each year. Generally, a real vehicle owner would not be liable when their vehicle is stolen and used in some other negligent or intentional act that harms people or property. To be responsible for someone else’s actions with your motor vehicle, you must have caused the damage in some way, which is rare, or you entrusted (gave permission) to the thief to use your vehicle, which is highly unlikely. 

In California, vehicle owners can be held liable for the actions of a third party if they entrusted, or gave permission to use, the vehicle to a third party who is unfit to drive, and that third party then harms someone or something. Entrustment is one way you may be liable for your vehicle being stolen and causing damage. This is one of many reasons why it is recommended to file a police report as soon as you learn that your vehicle has been stolen. Then, file a claim with your insurance company, notifying them of the theft and any damages that may have been incurred to your property. You do not want people to think you gave the thief permission to use your car.

If you are not liable for your vehicle harming others, then who or what is liable? Well, typically, the first place an injured party would look is to the driver. In this case, a thief can be liable for the damage they cause, but in most scenarios, the thief is either:

  1. unable to be found,
  2. uninsured, or
  3. has no money to pay for the damage they caused. So even though they are liable for the damages, the parties involved should be looking elsewhere to get compensation for any damages they incurred.

Which leads us to a very important part of your question, who pays for this type of damage?

Who pays for damage caused by a stolen vehicle depends almost entirely on what type of insurance policies the involved parties have and what those insurance policies cover. The first option would be to seek coverage through any of the thief’s insurance policies if they have any. This is done by setting up a claim with their insurance. The victim of the theft can file a claim for property damage, and the victim of any injuries caused by the driver of the stolen vehicle can file for personal injury and property damages. If it gets complicated, you should talk to an attorney who can help you navigate the insurance world. 

In most cases, the thief either has no coverage or does not have enough coverage, so the parties involved will have to look to their insurance policies to find coverage. In some circumstances, the injured parties don’t have any recourse for the damages to be covered. If this is the case, speak to an attorney to see if anything may exist before giving up. 

Most commonly, especially in California, people carry vehicle liability insurance. Liability insurance generally covers bodily injury and property damages caused to other parties when you are at fault in a collision. This insurance type does not cover your damages when you are liable and does not typically apply to a stolen vehicle in any situation. 

Another form commonly found within liability insurance is Uninsured / Underinsured motorist coverage. This acts similarly to liability insurance but can cover you when someone else causes injury to you but does not have enough insurance to cover the costs. If a thief driving a stolen car damages someone else in an accident, the company insuring the stolen car will not compensate the injured party because the car was taken without consent. With uninsured/underinsured motorist coverage, the injured party’s insurance company may pay the costs to them if coverage applies. If you are injured by a negligent driver of a stolen vehicle, this insurance will likely cover you. But, if your vehicle is the stolen property, it is unlikely that this will cover the damage to that car. 

Collision coverage is a type of insurance that may be able to cover your property damages in the event of a stolen vehicle but is unlikely to cover others’ damages and certainly won’t cover any possible medical expenses from the incident. Comprehensive insurance offers coverage for theft and damages not caused by a collision. This would cover you, but not others, for the cost of repair or replacement if your vehicle is stolen. 

The result of a stolen vehicle causing damage is often stressful and difficult to navigate. Although insurance may cover the damage, it tends to be an uphill battle to find any coverage when the damage is caused by a criminal act. We recommend talking to an attorney who is experienced in this field if it ever occurs to you. 

For more information on insurance, click here. 

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Who is Responsible for collisions involving driverless vehicles using AI?

Written By Chris Dolan and Cioffi Remmer

This week’s question comes from Leo from San Francisco, who asks: Now that self-driving cars are becoming a reality, who bears the responsibility for collisions involving driverless vehicles? Are there any laws protecting citizens?

Dear Leo,

Driverless cars, indeed, are becoming a reality. Over the last few years, self-driving vehicles have surged to the forefront of technological innovation, promising to revolutionize how we commute and interact with transportation. Driverless vehicles have undergone significant advancements in testing and production using artificial intelligence (AI), sensor technologies, and cutting-edge computing power. Major automotive industry giants and startups have been competing to bring this transformative technology to the masses, with the Bay Area leading the way.

For example, when companies like Waymo and Cruise test out their driverless taxis on city streets, the question that almost always comes up is, “Who is responsible for collisions involving driverless vehicles?”

Autonomous or driverless vehicles are supposed to have the advantage of obeying all road laws, having more reaction time, and the ability to avoid collisions. However, as of July 10, 2023, the California DMV had received 623 Autonomous Vehicle Collision Reports.  

It is usually the case that technology outpaces legislation. Our legislatures have plenty of time to develop common sense rules and regulations for issues that foreseeably cause public tension. Health and safety are at the heart of most rules and regulations that govern technology and its interactions with the public. This concern would be tenfold in the case of thousand-pound motor vehicles without human control. Currently, in California, Autonomous Vehicles (driverless) are only allowed on public roads for testing purposes.  

The California legislature has attempted to codify some essential regulations for testing driverless vehicles, codified in the California Vehicle Code Section 38750. Imagine a scenario where an autonomous vehicle (AV) collides with another vehicle or pedestrian.  What would they require under California law?

  1. A properly licensed individual must operate the AV. That means there should be a person in the vehicle with a valid driver’s license or a remote operator who monitors the vehicle live if no driver is physically present. That operator must also have a proper, valid driver’s license.
  2. The manufacturer of the AV is required to have a testing permit and insurance in the amount of five million dollars ($5,000,000), of which proof thereof is to be maintained in the vehicle.
  3. A plan with law enforcement agencies and first responders on interacting with the vehicle in emergency and traffic enforcement situations, which includes, but is not limited to, instructions on:
    • How to communicate with the remote operator (who must always be available);
    • Where in the vehicle is the proof of registration and proof of insurance;
    • How to safely remove the vehicle from the roadway;
    • How to disengage autonomous mode.
  4. Once law enforcement arrives, they must follow their plan to interact with Autonomous Vehicles. For example, the San Francisco Police Department has a current directive on interacting with autonomous vehicles. SFPD is required to document both injury and non-injury crashes involving an AV, whether physically operated or remotely monitored, using the CHP555 collision report, which they forward to the Commercial Vehicle Unit. 
  5. Within ten (10) days of the collision, whether it resulted in damage of property or bodily injury or death, the manufacturer must also report the incident to the Department of Motor Vehicles after the collision.  

Ultimately, who is responsible? Like any roadway collision, this is usually determined by figuring out who is at fault. One of the advantages of AVs is that there is audio and video recording at all times, and usually electronic data or telemetry. But determining fault may or may not be as simple as reviewing video or looking at electronic data. In either case, the manufacturer would likely submit the claim to their insurance carrier. If you’re involved in a collision with a driverless vehicle, it is critical to report it to law enforcement and your vehicle insurance carrier. If you’ve been injured in the collision, contact an attorney to help determine your rights.

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Crashes Caused by Police Pursuits: Who is at Fault?

Written By: Chris Dolan and Kimberly Levy

This week’s question comes from Roberto from San Francisco, who asks: Do police officers or police departments have liability for crashes or injuries caused during police pursuits?

Hi Roberto,

It depends on the specific facts involved. There are several sections of the California Government Code as well as the California Vehicle Code that address these kinds of situations. So, let’s look at some fact patterns. Suppose a police officer engages in a vehicle pursuit with a person (also in a motor vehicle) who is suspected of having just robbed a bank and, during the pursuit, the suspected bank robber crashes their car and injures another person who was not involved in the pursuit. In that case, the police officer and their department generally will not be liable for that person’s injuries. California Vehicle Code Section 17004.7(b) is clear in this regard.

But what if the officer crashes their patrol car during a vehicle pursuit and injures a bystander? Let’s say an officer is pursuing a suspected criminal, and during that pursuit, the officer engages in conduct that may be reckless or negligent. Police pursuits are fast-moving situations, requiring officers to make split-second decisions, often with limited or little information. However, the California Vehicle Code requires ALL drivers on the road to operate their vehicles in a safe and reasonable manner, obeying all rules of the road, including police and emergency vehicles. There are exceptions for police pursuits, fire engines on their way to a fire, ambulances taking a critically ill patient to the hospital, etc. But there are requirements for these exceptions, such as operating lights and sirens to warn those in the area that such circumstances are occurring.

If an officer decides to engage in a vehicle pursuit, one can look at whether that decision to pursue was made in a reasonable manner. Generally, the decision to pursue a vehicle affords the officer a certain amount of immunity as they are making that decision in the course and scope of their employment as a police officer. Things can get interesting in examining the officer’s conduct during the pursuit.  

For example, assume an officer in a patrol car is chasing a suspected criminal who is riding a motorcycle. The fleeing suspect on the motorcycle turns into a crowded farmers market with an extremely narrow path of travel down the middle, not enough room for something the size of a car or SUV.  Suppose the officer, seeing the crowded conditions of the farmers market, decides to turn into the crowded area to pursue the fleeing suspect and hits and injures bystanders not involved in the pursuit or crashes into some vendor tents. In that case, that is a decision and an act that most reasonable people would consider negligent. And, if the officer’s actions during the pursuit are considered to be negligent, then that officer and his department will likely have some liability for those injuries and damages resulting from that decision and that conduct.

By contrast, assume the same fact pattern, but the officer does NOT pursue the fleeing motorcycle into the crowded farmer’s market. He instead radios dispatch for backup and informs them of the suspect’s last known location. But then the motorcyclist crashes while speeding through the crowded marketplace and injures bystanders and causes property damage. Because the officer acted in a manner that most people would consider reasonable, it is unlikely that the officer or the department would be liable for those injuries or damages. Once again, the California Vehicle Code Section mentioned above would control.

In answering these questions regarding police pursuits, courts will generally break the pursuit into sections and examine each section and decision made. An officer can have acted reasonably in some sections of a police pursuit but negligently in others.

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Summer Travel | Create a Safety Checklist

Written By Chris Dolan and Megan Irish

This week’s question comes from Pam from the East Bay, who writes: It’s summertime, and the kids are out of school. We will be hitting the road and seeing the sights all over California. Any tips or advice for us when we hit the road to be safe in our car?

Pam,

That sounds great. A family road trip can make memories to last a lifetime. Before you take to the roads, doing vehicle maintenance and understanding your route is a good idea.

The National Highway Traffic Safety Administration recommends many safety checks. Here are a few:

Check your air conditioning system, as it must work harder in the summer heat. Having air conditioning in good working order is not only a comfort factor but can be essential for children or older adults. Heatstroke can be a serious or deadly consequence of an overheated car.  Even with windows cracked, a car starts heating up, and outside temperatures as low as the 70s can quickly reach lethal levels.  Never leave a child, an older adult, or a pet in a car.

While under the hood for the air conditioning, look at the belts and hoses, as the warmer temperatures can cause the rubber and hoses to deteriorate. Also, check the connections, and secure any that may need tightening. Should the hoses and belts be cracked or bulged, it’s time to replace them. (If you are not familiar with these items have your local mechanic shop review this for you).

Are your fluid levels where they should be?  Check out the oil, brake, transmission, power steering, and windshield washer fluids.  Top up each reservoir as needed.

Look at the tires, and make sure they have sufficient tread. The tread should be at least 2/32” or greater on all tires.  You can use a penny to check the tread.  Place a penny upside down into the tread; if you can see the top of President Lincoln’s head, the tread is too thin, and it is likely time for new tires.  Is the wear even on the tires?  If not, an alignment may be in order.  Also, are they properly inflated?  Check your tires’ pressure when the car has not been driven for at least three hours (after the tires have cooled) and compare the readings to the sticker mounted on the pillar of the driver’s door frame.

How are your headlights, brakes, and turn signals?  Are all the bulbs working?  Also, look at the emergency flashers to ensure they perform properly.  Additionally, ensure your floor mat is debris-free and installed properly on the floor.  If it has started to fray or become damaged, it could get in the way of the driver moving their foot from the accelerator to the brake pedal.

Finally, make sure your seatbelts and car seats, as needed, are in good condition and properly installed.

Once the car is ready, make sure you have safely packed, and none of the bags block the driver’s ability to use mirrors and inspect blind spots as they are driving and changing lanes.

Take a moment to familiarize yourself with your route.  CalTrans has online resources that provide current highway conditions, including planned closures.  Also, while GPS is a wonderful tool, being aware of your route means you spend less time looking down at the device and more time looking at the road, a much safer approach.  Your device may lose battery power or fall in a river, or knowing your route is a safe preparation.  Let people know when you expect to arrive somewhere, so someone will check on you if you are outside your arrival window.

When traveling with children, you can have simple games to amuse them.  Three simple but fun car games are looking for out-of-state license plates, finding cars in the color of the rainbow, or the truck imagination game, where the kids take turns telling a story of what is in the back of the closed container of an 18-wheel truck.  Kids of all ages can play on trips and have lots of fun.

Make safe choices while you are out on the road.  Pay attention to your surroundings and be alert when you stop for gas or other essentials. Use your seatbelt and respect the speed limit.  Do not drink or use drugs while operating a vehicle.

Depending on your experience some items we discussed could be delegated to your local mechanic shop. Just make sure to ask them to take care of any concerns you may have.

Most importantly, have a great time with your family and make those road trip memories.

 

Christopher B. Dolan is the owner of the Dolan Law Firm. Megan Irish is an associate attorney in our Oakland, CA, office. We serve clients throughout the San Francisco Bay Area and California from our offices in San Francisco, Oakland, and Los Angeles. Email questions and topics for future articles to: help@dolanlawfirm.com. Each situation is different, and this column does not constitute legal advice. We recommend consulting with an experienced trial attorney to understand your rights fully.
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Parking Blocks Can Cause Pedestrian Accidents

Written By Chris Dolan and Emile Davis

This week’s question comes from Josh in San Francisco, CA, who asks: I was leaving a store last Friday and was in the parking lot heading toward my car. As I walked, I looked up to see where I had parked. I tripped over one of those parking block things at the end of a parking space. I went down and scraped my knee and hands, but thankfully, I was mostly okay. But it got me thinking about how many of those things are everywhere. If someone is seriously hurt tripping on one of those, do they have a lawsuit?

Hi Josh, 

I am happy to hear you were not severely injured. I can tell you that we have represented many pedestrians, like yourself, as well as bicyclists, who have unexpectedly encountered a parking block, causing injury. Parking blocks, or wheel stops, as they are sometimes known, are the small barriers used at the end of parking spaces to assist drivers with parking their vehicles. They are one of the hazards we see regularly. 

To understand how that works, in a legal sense, we must look at the many factors determining if the wheel stop would form the basis of a lawsuit. When those blocks are in a privately owned area, the lawsuit would be known as a “premises liability.” It would be a “dangerous condition of public property” in a publicly owned area. The central part of either of those cases is the same – Did the block’s placement create a foreseeable risk of harm?  

As you described, parking blocks are often used in parking lots to prevent vehicle encroachment into an opposite parking stall or onto sidewalks. They are not designed to be an actual barrier to stop a vehicle but to notify a driver that they have reached the end of the space.  

We all have expectations about where we expect to see parking blocks. People expect them to be there and can account for that when walking or cycling. They create less of a hazard when neatly lined along a curb or in rows at the end of defined parking spaces. When a person’s expectations of placement are met and they have the ability to see with time to react, it is easy to navigate through or around wheel stops. 

However, when the placement diverges from expectations, it can create a more dangerous situation. For instance, if the block is at the end of a parking stall, but in the middle, or if it is not centered within the stall, placed off to one side, it is much less likely that people will be able to anticipate and avoid encountering the hazard. A parking block in a completely unexpected location, such as being placed on a bicycle path or at the end of a trailhead, it becomes an even greater hazard.   

You must be able to see a parking block to avoid it. Therefore, sufficient lighting that allows visual recognition of parking blocks is essential. In addition to illuminating the area, the parking blocks must stand out from the underlying pavement to avoid tripping. You may have noticed that parking blocks are often made of light-colored concrete, which stands out against the dark pavement below them. This contrast in color helps to make the blocks more visible. They can be made even more visible by adding reflective stickers, or paint, in a contrasting color. 

In a parking lot, visibility is crucial because people tend to focus on finding their vehicle or watching out for moving vehicles. This makes it challenging to pay attention to where they are walking, and any unexpected environmental changes can be risky. If a block does not have a contrasting color, it can blend in with the surroundings and become difficult to spot. 

If you, or someone you know, is injured by tripping, cycling, or otherwise encountering a wheel stop, or parking block, have them call an attorney experienced in this area of law, such as the Dolan Law Firm, to evaluate their claim. 

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Storefront Crashes and Pedestrian Safety

Last month, Attorneys Chris Dolan and Megan Irish published an article highlighting the concerning frequency of cars crashing into convenience stores. These storefront crashes are a known risk to stores and they can prevent them by installing bollards. This week, Christopher B. Dolan had the opportunity to discuss a case (Sisemore v. 7-Eleven) along with Robert Reiter, founder of Storefront Safety Council, highlighting the importance of storefront safety and how bollards can be extremely effective in preventing injuries or even death at convenience stores. 

See the exclusive interview with Inside Edition here:

About The Case (Sisemore v. 7-Eleven):

On approximately May 31, 2019, Ms. Sisemore made a routine stop to get gas at a 7-Eleven station. The machine card reader at the pump would not read her card so she went in to pay. Unaware of what was going to happen, while she was paying for gas at the counter, a car crashed through the door and hit her while she was inside the 7-Eleven.

 

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How Will AI Transform the Practice of Personal Injury Law?

Written By Christopher Dolan and Cioffi Remmer

This week’s question comes from Robert in Oakland, CA, who asks: How will AI and the ChatGPT app impact the practice of personal injury law?

Dear Robert,

The public’s interest in Artificial Intelligence has surged recently with the introduction of “ChatGPT,” OpenAI’s Artificial Intelligence application. On ChatGPT, you can prompt the AI program to write essays, articles, speeches, book reports, answer questions, and even write software code.  To answer your question, I asked ChatGPT to write an article on AI’s impact on practicing personal injury law in the next five, ten, and 20 years.  Here’s what ChatGPT wrote:

“Artificial intelligence (AI) is rapidly transforming various industries, and the legal industry is no exception. AI-powered applications like ChatGPT have the potential to revolutionize the practice of personal injury law in the coming years. In this article, we will explore the impact of AI on personal injury law over the next five, ten, and 20 years.

Personal injury law involves cases in which a person is injured due to the negligence of another party. Such cases can be complex and time-consuming, requiring extensive research and analysis of legal precedents and statutes. This is where AI-powered applications like ChatGPT can be particularly useful.

In the next five years, AI-powered legal research tools will become increasingly common. These tools can quickly and accurately analyze large volumes of legal data, including court opinions, statutes, and regulations. This will allow lawyers to conduct legal research more efficiently and effectively, saving time and money for their clients.

Furthermore, AI-powered applications can assist lawyers in predicting case outcomes and settlement values. By analyzing data from past cases and considering various factors, AI algorithms can provide insights into the potential outcomes of a case. This can help lawyers to make better-informed decisions and advise their clients accordingly.

In the next ten years, we can expect to see AI-powered applications being used to streamline the litigation process. For example, AI algorithms can analyze medical records and other evidence to help lawyers build stronger cases. This can reduce the need for expensive expert witnesses and simplify the discovery process.

Moreover, AI-powered applications can assist lawyers in drafting legal documents, such as pleadings and motions. These applications can analyze past cases and legal precedents to generate documents that are tailored to the specific needs of a particular case. This can save lawyers a significant amount of time and improve the quality of their work.

In the next 20 years, AI-powered applications may even be able to assist with settlement negotiations and courtroom arguments. For example, AI algorithms could analyze the personalities and behavior of judges and opposing counsel to predict their responses to certain arguments. This could help lawyers to craft more persuasive arguments and negotiate more favorable settlements for their clients.

However, as with any technological advancement, there are also potential drawbacks to the increasing use of AI in personal injury law. One concern is the potential for bias in AI algorithms. If these algorithms are trained on biased data, they may perpetuate existing inequalities and injustices in the legal system. Moreover, the use of AI may raise ethical concerns around the role of lawyers and the potential de-skilling of certain legal tasks.

In conclusion, AI-powered applications like ChatGPT have the potential to significantly impact the practice of personal injury law in the coming years. While there are potential risks and challenges associated with the increasing use of AI in the legal industry, there are also significant benefits to be gained. As AI continues to evolve, we can expect to see even more innovative applications being developed to assist lawyers in their work.”

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San Francisco Fire Department Concerned About Street Barriers

The city of San Francisco added street barriers along five blocks of Capp St from 18th to 22nd to deter alleged prostitution. This action may violate local statues and city fire codes. The fire department is worried about lack of access that could delay emergency response times.

In an interview with ABC news, Chris Dolan said:

“The fire code specifies the type of access that fire trucks need to have for public safety. The vehicle code allows local governments to put limitations on traffic movement based on crime. So both of these have an effect. They need to be balanced.”

“A public process including consultation with the fire department and other safety forces,” should be held in a public hearing. Dolan said “Many of the residents may have unique needs, for example, a resident may be disabled and may need access to their garage.”

Local city and emergency department need to come together to balance the needs of the community.

See full ABC News story here:

 

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Cars Crash into Convenient Stores, Too Often.

Written By Chris Dolan and Megan Irish

This week’s question comes from Rebeca from San Jose, who asks: Two weeks ago, I heard a loud commotion and went outside to see that a car had crashed into the corner convenience store. It went right into the glass front of the building, and only the trunk is visible from the sidewalk.  Today it is all boarded up, and the store is closed. Has this ever happened before?

Dear Rebecca,

Unfortunately, yes, these kinds of crashes happen far more frequently than you can ever imagine, often causing injuries in addition to the apparent damage to the building. Who is responsible for these damages? The driver of the car? Surely. But is the store also responsible?  Often, yes. When someone is hurt in a store front crash, they may be able to bring a claim for their injuries based on negligence and premise liability against the store.

Generally, in a negligence case, the injured plaintiff must prove the defendant has a duty, the defendant breached their duty, the breach caused the plaintiff an injury, and the plaintiff has suffered damages related to that injury. Generally, in a premise liability action, the plaintiff must show that a defendant owned, leased, or controlled the location of their injury, that the defendant was negligent in the use or maintenance of the property, that the plaintiff was harmed, and that the defendant’s negligence was a substantial factor in causing the plaintiff’s harm.  

From the local coffee shop to the neighborhood grocery store and everything in between, cars can drive into the store and injure pedestrians, store patrons, and employees. Often the layout of the parking spaces outside the store leads to the vehicles’ intrusion into the building. When the parking spaces are placed directly in front of the store, which is perpendicular to the store, and the driver makes an error by pressing the gas instead of the brake pedal instead of coming to stop, the vehicle accelerates toward the building. A crash is imminent If the parking lot and storefront design do not have any barriers to stop the vehicle’s entrance onto the sidewalk and into the store. The crash can be minor and cause only property damage to the building, like a few broken windows, or it can be catastrophic and cause injury or even death to the pedestrians on the walkway, the patrons, or the employees inside the store.  

This kind of “storefront crash” is a known risk to stores, and there are numerous ways to protect the storefront and keep patrons and pedestrians safe. For example, owners can install bollards to prevent a car from intruding into the space. A bollard is a slim, solid pillar that is seated into the ground. They are often about four to six inches in diameter and come up to about three or four feet. They are usually yellow to increase their visibility. They do not impede the flow of foot traffic and can easily be ADA-compliant. Also, placing attractive flower boxes with appropriate underpinnings across the front of a store can offer protection without impeding on a patron’s access to the store. Either of these or one of the numerous other options would protect the sidewalk area and storefront from any vehicle trying to park in the perpendicular stall that inadvertently jumps the curb and approaches the storefront.  

The frequency of these types of collisions is staggering. Recently made public statistics demonstrate that the popular convenience store 7-Eleven has 1.14 store front car crashes a day, causing some personal injury or property damage. The now public data also shows repeated hits at the same stores. Some were hit three, four or five times. There is even evidence that one store was hit thirteen times! The recently released data also shows that between 2003 and 2017, there were 6,253 storefront crashes at 7-Eleven stores across the country in fifteen years.  More public data about 7-Eleven shows another 1581 storefront crashes between 1991 and 1996.  

These types of crashes happen. It’s a known hazard of stores with parking stalls perpendicular in the front of the store. And the store is oftentimes in the best position to prevent the injuries and damages associated with them. Hopefully, your local store will be repaired quickly, and no one inside was hurt.

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Who is Liable When Potholes Cause Accidents?

Written By Chris Dolan and Cristina Garcia

This week’s question comes from Kathy J. in the Sunset District, who asks: After this year’s stormy winter, new potholes seem to be appearing daily. Over the weekend, I was driving to my friend’s house when I hit a pothole in the road. The pothole caused me to lose control of my vehicle, and I eventually crashed into a tree. The impact destroyed the front of my car and deployed my airbags. I vaguely recall the police officer and ambulance arriving. At the hospital, I was diagnosed with facial bruising, a concussion, and a broken wrist. I am unsure what my next steps are, as the accident did not involve another vehicle, and I was not at fault for crashing into the tree. However, I now have large medical bills, and my car has significant property damage. Who is responsible if a pothole leads to an injury?    

Dear Kathy,

That is a great question. Potholes are more prevalent after heavy rains as the precipitation saturates the ground and causes the asphalt to break up. Government entities such as cities, counties, the State, or the Federal government own public roadways.  Therefore, the first step is determining which entity owns the road. A government entity, like any other property owner, is responsible for maintaining its premises in a reasonably safe condition. It is important to note that “reasonably” does not mean in perfect condition or that maintenance needs to occur instantaneously. However, showing that the responsible government entity had notice of the pothole is essential in establishing liability. 

Many cities and counties have online portals or phone numbers where residents can report dangerous roadway conditions such as potholes. For example, in San Francisco, the SF311 Mobile App can be used to submit service requests. For this reason, it is important for anyone who comes across a pothole, whether you are a driver or a pedestrian, to file a service request notifying the government entity of the roadway condition.

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. Special rules apply when filing a claim against a government entity. The injured individual must file an administrative claim before filing a personal injury lawsuit against a government entity. It is important to note that there is a limited time in which you can bring an administrative claim against a government entity. Under California Government Code Section 910, you must file a claim against the government entity within six (6) months after the event or occurrence. Be sure to file the claim with the appropriate government office or agency. Further, it is equally important that you use the claim form of that government agency when filing a claim, as section 910 prescribes a list of the required information you must provide in your claim. Otherwise, the claim may be deemed invalid.   

While the government entity can be held responsible for dangerous conditions on its roadways, it is critical to note that a non-trivial dangerous condition does not mean the city is liable for damages. Further, when a claimant can prove the statutory requirements, the government entity may still raise several defenses to defeat liability. It may argue that it exercised due care by posting warning signs to prevent vehicles from hitting potholes or claiming that it is “open and obvious”; therefore, no warning signs were necessary. 

Claims against any government agency present their unique challenges. There are strict time limits and different procedural rules that apply to government claims. For this reason, it is important to retain a skilled trial attorney to assist you in pursuing your government claim and ensure you obtain the compensation that you deserve. 

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