In this edition of Law Talk, attorney Anna Czarples discusses New York State Pothole Laws, and when a municipality is liable for a pothole that causes injury to somebody.    

As Spring starts and warmer weather rolls in, people are ready to get outside and start activities such as biking. The question this week is, if a biker hits a pothole and sustains a major injury, who would be liable since it’s a public roadway?

The answer can be complicated. Due to systems involving governmental immunity, you cannot sue municipalities, villages, towns, cities or counties unless they permit you to sue them. Czarples says that you cannot bring a claim for an injury that you sustained in a pothole unless the municipality or other governmental entity had prior written notice of the defect.

Say that you notice a large pothole on a county owned road outside of your house. You must give the county written notice and the opportunity to fix the defect before bringing a claim for being injured as a result of it. If no one had written to the governmental entity to fix a pothole before a biker gets injured from it, they are not liable.

In practice, this means that it can be very difficult to bring a claim against a governmental entity for an injury sustained from a pothole or road defect, even when they are to blame for the defect existing in the first place.  Czarples says that very few people write in to notify local municipalities of damaged roads, and that the process for notifying the county can be complicated.  Typically the first time that local municipalities will be notified of a defect is when somebody is injured from it, and in that event they are already not liable.

If you notice a pothole or a defect in the road and you’re concerned about somebody being injured by it, you can find out who owns it and look into how to give a written notice to its owner.

Be sure to check back each month as Anna Czarples discusses different topics associated with personal injury or other legal topics as you decide. If you have a question that you would like to see potentially answered during Law Talk, please email it to Anna Czarples is based out of Corning and works with clients from around the region.