• Chris Marshall

Who is at fault if my motorcycle accident was caused by a pothole?

Navigating Southern California’s roads is difficult even in a car or truck. Motorcycle riders must deal with road hazards, overgrown foliage, construction debris and potholes with minimal protection. The question often comes up about who is at fault if a pothole or other hazard causes a motorcycle accident.

The public entity in charge of maintaining roadways can be liable if road hazards cause injuries to motorcycle riders. Liability must be established by showing that the city or county in charge of maintenance knew or should have known about the hazardous condition and failed to correct it within a reasonable period of time. Here in California that reasonable period of time is typically 6-8 weeks from when public entity receives notice unless there have been previous serious accidents.

What kind of road hazards are public entities liable for?

Cities have an obligation to ensure that their roads are in good repair and free of hazards. Municipal officials and employees are required to stay on top of problems that can cause damage or injury. That being said, San Diego is a big area with roadways maintained alternatively by the City of San Diego Streets Division, San Diego County Department of Public Works, and the other 17 cities within the county.

Before we discuss what type of physical hazards the government is responsible for, it is important to talk about notice. Generally speaking, before a public entity can be found liable for injuries on a roadway there must have been some notice received that there was a problem in the first place. Maybe the hazard was spotted on a routine inspection and jotted down in notes. Maybe a concerned citizen called in and complained about the hazard. Maybe there has already been a fatal accident because of the hazard. Or maybe a long enough period of time has passed where everyone agrees that it just should have been taken care of by now. All of these circumstances could provide adequate notice to a public entity that there is a problem that needs to be repaired.

Following that notice, entities have a “reasonable period of time” to actually make necessary repairs.

Typically, only when a public entity receives notice of a hazard and a reasonable period of time passes without repairing the hazard can a public entity be found liable. While all cases are context-dependent, here in California a typical reasonable period of time to make a repair is 6-8 weeks.

The most common causes of road hazard motorcycle accidents are potholes or other similar breaks in the road surface. Concrete and asphalt are always breaking and reacting to weather, which creates ongoing surprises.

In addition to roadway disrepair, construction debris is a constant source of hazards for motorcycle riders in San Diego. Concrete barriers can chip off and leave chunks in the roadway, sand can get sprayed from a roadside site creating a violently slippery surface for bikers, etc.

How do you find out if the public entity had notice of the hazard?

This is tricky and is one of the tasks that your personal injury attorney will undertake. Investigating the history of the road hazard that caused your motorcycle accident is vital. Who knew about it and when?

Personal injury attorneys will investigate whether the appropriate entity knew, or should have known about the road hazard by:

  • Requesting survey record results. Agencies conduct surveys to find road hazards the require repair. What is the result of those surveys in the area of your accident?

  • Requesting police records. If there have been any serious accidents at this location before, the police may have information about it.

  • Interviewing neighbors. A pothole may have been there for months (or years) and local residents may help you prove it.

  • Reviewing with experts. There are traffic pattern and roadway experts who can be retained to offer opinions on the characteristics and age of hazards, though this expensive.

How do you file a claim against a public entity?

There are tight deadlines and strict requirements for how and when you need to file your claim against a public entity. Check out the step-by-step guide here for specific instructions on how to file your claim against a city, including a discussion of the steps you have to take before filing a lawsuit.

Can I sue anyone else for my motorcycle accident?

Maybe. Commonly a construction company ends up as a defendant because a hazard from a construction site made its way into the road. In complex cases it may be possible to sue the designers and architects of a particular area, though this is now a serious uphill battle in California following a recent California Supreme Court decision.

What happens after you file the claim?

Your claim is going to be denied in one of two ways. The public entity can proactively deny your claim within 45 days. If this is the case, you and your attorney will have six months to file a formal lawsuit in court.

More likely however is that the city will not respond at all to your claim. This means that after 45 days you submit the claim form you will be allowed to file your lawsuit in court. You will have two years from the date of the injury to do so.

Will you win your lawsuit against the public entity?

All cases are different obviously and having a smart attorney on your side is the first step to winning. The city defense attorneys typically fight these cases pretty hard and a lot of them go to trial (as opposed to settling out of court).

Like most municipalities, the City of San Diego maintains a public liability fund used to pay out settlements and attorneys’ fees for claims made against the city.

The City of San Diego paid nearly $5 million to Clifford Brown after he hit a seven inch uneven portion of raised pavement in Del Cerro in 2014 and was thrown twenty feet into the air.

In December 2016 the San Diego City Council agreed to pay Cathleen Summerford $235,000 for injuries sustained when she hit a pothole while she was cycling in La Jolla two years earlier. She hit a hole 3” deep and 15” wide.

Jamie Powell died on his motorcycle in 2014 when he hit a gap in a roadway near a train crossing and was launched into oncoming traffic. After a two-week trial the city “won” and did not have to pay any of the $5.4 million requested as they were able to convince the jury that the pothole was no more than a “road blemish” and that he had been speeding.

In 2015 Philip Alvarez lost control of his motorcycle on a street in San Pedro after reportedly hitting several potholes. The LA City Council agreed to pay more than $6 million in a settlement in order to avoid trial.

If you or someone you love has been injured on their motorcycle by a pothole or other roadway hazard it is important to partner with the right attorney, call Christopher Marshall Law now at (858) 964-2324.


© 2020 by Christopher Marshall Law

Christopher Marshall Law Logo