Civil Litigation Legal Topics Public Law Tort Law

Before Taking on the Government for that Pothole

A client comes into your office claiming that a deep pothole or obscured signage at an intersection caused a car accident in which she was injured. Or maybe the family of a bicyclist comes to you claiming that dangerous road conditions contributed to her fatal crash. Would you know how to analyze the situation to determine whether there’s a basis for a suit against the city for the dangerous condition of public property?

First off, review Govt C §835, which provides the basis for liability in an action against a public entity for an injury caused by the dangerous condition of public property.

Then, start analyzing your client’s potential claim. It can be a very useful technique to take the elements of the statutory claim and turn them into questions. Based on your answers to the questions, you’ll know whether to pursue the claim.

Here are eight questions to help with your analysis:

  1. Did the public entity own or control the subject property at the time of the accident? Ownership of public property is generally established as a matter of law by evidence that the public entity holds title to the property. If you can’t show ownership, see if you can show that the public entity had “control” over the property. See Govt C §830(c); Huffman v City of Poway (2000) 84 CA4th 975, 990, 101 CR2d 325.
  2. Was the public property in a dangerous condition? This can be (1) a public improvement that has become physically damaged, deteriorated, or defective such that it is potentially dangerous to reasonably foreseeable users, even when used with due care; (2) the design or location of the improvement, the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use;  or (3)  a combination of a “condition of the property” (either a physical defect or the absence of adequate safety features) and negligent or criminal conduct by others on or about the property.
  3. Was the dangerous condition a proximate cause of plaintiff’s injury? There must be a causal relationship between the alleged dangerous condition and the plaintiff’s injury for the claim to exist.
  4. Did the dangerous condition create a reasonably foreseeable risk of the kind of injury that was incurred? The fact that third party negligence is a concurring proximate cause of the plaintiff’s injury does not preclude the public entity’s liability as long as the kind of injury that occurred was reasonably foreseeable.
  5. Was the dangerous condition created by a public employee? The public entity is liable for the dangerous condition of its property created by a negligent or wrongful act or omission by its employee who was acting within the scope of the employment. See Govt C §835(a).
  6. Did the public entity have notice of the dangerous condition? Determine whether the public entity had actual notice  (i.e., knowing of both the existence of the condition and the condition’s dangerous character) or constructive notice (i.e., the entity “in the exercise of due care” by inspections or otherwise should have discovered the condition and its dangerous character) sufficiently before the accident to have taken measures to protect against the dangerous condition. Govt C §835.2(b).
  7. Did the plaintiff sustain damages as a result of an injury caused by the dangerous condition? The plaintiff in a dangerous condition action is required to plead and prove damages just as in any other tort action. Govt C §§830(a), 835. “Injury” is defined in Govt C §810.8 as “death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person, reputation, character, feelings or estate, of such nature that it would be actionable if inflicted by a private person.”
  8. Do any defenses or immunities apply that will limit or defeat liability? A public entity may assert any defenses available to private defendants in similar situations. Govt C §815(b); see Law Revision Commission Comment to Govt C §835.4. Such defenses include but are not limited to comparative negligence, assumption of the risk, and third party negligence.

For everything you need to know about bringing a claim for dangerous condition of public property, go to CEB’s California Government Tort Liability Practice, chap 12.  Also check out The California Municipal Law Handbook, chap 13.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

7 replies on “Before Taking on the Government for that Pothole”

Thank you for the checklist; we try to ask similar questions concerning public entity claims. However, it would be useful to add some of the defenses unique to public entities to the examples at the end of your posting. Government entities can avail themselves of most, if not all, standard affirmative defenses, but we don’t really need to be told that again.

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