We have all felt that dreaded and terrifying thud of driving over a pothole. Oftentimes, this is the kind of experience that causes you to turn off your radio and drive in silence for a while, immensely humbled by the beautiful (or not) roads that North Carolina has to offer. In such silence, we often ask ourselves a variety of different questions. Usually, one
question is whether our car is damaged beyond repair. Indeed, we are already making plans to get our tires replaced and our suspension fixed. Another question we often ask ourselves is whether we could sue the state or city if the pothole resulted in an accident. Perhaps in less fortunate circumstances, you are reading this blog after already being
involved in such an accident due to a pothole. In either case, this is the post for you.
Establishing the City or State’s Duty of Care
In North Carolina, it is possible for injury resulting from a pothole to result in a successful claim against the city or state. However, certain criteria and conditions must be satisfied. The most common avenue through which relief can be sought is a negligence claim.
To succeed on a claim of negligence, it must first be demonstrated that the city or state had a legal duty. In this case, governing authorities generally have a duty to exercise “ordinary care” to maintain streets and sidewalks in a condition that is reasonably safe for proper use. A city is also obligated to conduct reasonably frequent inspections of its streets and cannot avoid liability by pleading ignorance of the pothole. These requirements are far from cut and dry, and the specific duty owed depends on the circumstances as determined by the court.
Proving a Breach of Duty and Notice of the Defect
The next requirement is that the city or state breached this duty. To satisfy this element, there must be more than just the existence of a defect. Instead, the plaintiff must demonstrate that the city or state had actual or constructive notice of the defect. This means showing that the city or state knew the defect existed—or should have known through reasonable inspection or ordinary diligence. It is also necessary that the defect be fixed within a reasonable period of time.
What Counts as a “Reasonable” Time for Repairs?
Of course, what constitutes a “reasonable period of time” depends on the circumstances. The North Carolina Supreme Court has stated that whether the lapse of time between the creation of a pothole and its repair is reasonable is a question for the jury. However, N.C. Gen. Stat. § 136-18.05 states that potholes should be repaired within two business days of the date the report is received. While no cases have interpreted the statute, if it is treated as the standard of care, failure to fix a pothole within two days of the report could constitute a breach.
When the Defect Is Considered “Trivial”
However, one barrier to a successful claim is if the road defect was trivial. Cities and states are generally not liable for injuries caused by trivial road defects that are not naturally dangerous. Likewise, it is also necessary that the character of the defect be such that injuries could be reasonably anticipated. Therefore, a successful claim would require a determination of whether the pothole was naturally dangerous and whether it is of the character that such injuries would be reasonably foreseeable by the state or city.
The Role of Contributory Negligence in North Carolina Claims
Another barrier that applies to North Carolina is that the injured party must demonstrate that they were not contributorily negligent. This means that the plaintiff must show they did not engage in any negligent act that contributed to the injury, such as failing to use windshield wipers, headlights, or taking other reasonable precautions.
Filing Deadlines and Government Immunity
N.C. Gen. Stat. § 160A-563 requires that a claim be presented to the appropriate authority at least 30 days before filing a lawsuit. Additionally, sovereign immunity could potentially prevent a successful claim. However, one North Carolina case noted that “a municipality cannot, with impunity, create in its streets a condition palpably dangerous, neglect to provide the most ordinary means of protection against it, and avoid liability for proximate injury on the plea of governmental immunity.” While this language may seem complex, it suggests that there may be limits to a city’s or state’s immunity in certain circumstances.
Get Expert Guidance
It is certainly possible for a negligence claim against a city or state in North Carolina to succeed when a pothole causes a personal injury. However, these cases involve many legal intricacies that must be carefully navigated. If you have sustained such an injury, contact the experienced attorneys at your local King Law Office. We have the expertise to guide you through the process and help protect your rights.
