March will soon be here. The mix of nice weather, potholes and sand is a deadly mix for motorcyclists. If you can, don’t start riding until May. If you can’t wait, watch for potholes and sand on curved areas of the roadway during March, April and May. Even May can be dangerous as you will see in the case below.
Every year, we get calls from motorcyclists hurt after hitting potholes or riding over sand left behind by snowplows. But for most of these accidents motorcyclists will not be able to obtain compensation from a lawsuit.
Municipalities have a prior written notice law which excuses them from liability unless they had prior written notice of the pothole or their workers caused the pothole. But it gets worse!
In Wilson v. Incorporated Village of Hempstead (120 A.D.3d 665), two witnesses who lived on the street where the motorcycle accident occurred phoned the Village because the pothole was so severe. The Village repaired the pothole, yet the patch quickly fell apart and the pothole reappeared. When a motorcyclist hit the pothole on April 30, the pothole “was in the same condition” as it was before the repair.
The Village Department of Public Works, stated that in March they only make temporary “cold patch repairs” of potholes and permanent repairs are done during warm weather.
First, the court ruled that oral notice, including by telephone or voicemail, is not prior written notice, even if it was then written by the village employee!
Second, the court ruled that the Village did not create the pothole when the patch failed because a municipality’s repair must immediately result in a dangerous condition and make the defective condition more dangerous than it was before the repair.
Although the pothole patch failed, the pothole wasn’t immediately dangerous and wasn’t more dangerous than it was before the repair. The plaintiff’s case was dismissed and he recovered nothing for his injuries.
In the case of Smith v. Town of Brookhaven (45 A.D.3d 567), the operator of a motor scooter was hurt when he hit a pothole. His lawyer hired an engineer who reported that failure to maintain a storm drain caused the street to constantly flood, freeze, thaw, and erode, eventually causing the pothole. On appeal, the court ruled that the pothole formed as a result of wear and tear and environmental factors and was not an act of negligence. The Town of Brookhaven was held not liable for the injuries.
It should also be noted that where proper prior written notice of a pothole is given, the written notice must identify the specific location of the pothole whether there is one pothole or many potholes on the street (Sheikh v. City of New York 53 Misc.3d 1214(A)).
Finally, don’t hit a pothole!