Civil Litigation Legal Topics Public Law Tort Law

Be Ready for the Defense When Suing a City for a Pothole

In an earlier blog post, I discussed the elements of a claim against a public entity for dangerous condition of public property, such as a deep pothole or obscured signage at an intersection that causes a car accident. As a followup — and in response to a reader’s thoughtful comment — here are the defenses you may face when bringing such a claim. Even if all the elements of the claim are there, you always need to anticipate the public entity’s defenses.

When faced with a claim for dangerous condition of public property, a public entity can use any defenses available to private defendants in similar situations, such as comparative negligence, assumption of the risk, and third party negligence. Govt C §815(b); see Law Revision Commission Comment to Govt C §835.4. Basically, a public entity shouldn’t be liable when a private person wouldn’t be liable. See, e.g., Heieck & Moran v City of Modesto (1966) 64 C2d 229, 232, 49 CR 377.

Public entities also have at their disposal specific statutory defenses and immunities provided by the Government Claims Act. Applicable defenses and immunities generally prevail over public entity liabilities. Govt C §815(b).

To get a handle on what defenses and immunities might be available to the public entity before you file a claim for dangerous condition of public property, analyze the following questions to see where the answers lead you:

  • Are there any defenses available to a private person that are applicable to the public entity?
  • Was the act or omission that created the dangerous condition reasonable?
  • Did the public entity act reasonably to protect against risk of injury created by the condition, or was the public entity’s failure to take such action reasonable?
  • Can the requirements of design immunity be satisfied?
  • Did the dangerous condition arise from the public entity’s mere failure to provide regulatory traffic control signs, stop signs, yield right-of-way signs, speed restriction signs, or distinctive roadway markings?
  • Was the condition dangerous solely because of the failure to provide traffic or warning signals, signs, markings, or devices?
  • Was a street or highway dangerous due to weather conditions?
  • Was the dangerous condition a natural condition of unimproved public property or beaches?
  • Was the public property an unpaved access road or recreational trail?
  • Was the public property unimproved or unoccupied state land?
  • Was the plaintiff engaging in a hazardous recreational activity?
  • Was the public property a reservoir, canal, conduit, or drain?
  • Are there any other applicable statutory immunities?

For everything you need to know about bringing a claim for dangerous condition of public property, including specific discussions for each of these questions, 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.

4 replies on “Be Ready for the Defense When Suing a City for a Pothole”

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