Bump in the Road

To the attorneys who practice in personal injury, potholes are no mere vehicular annoyance. Sometimes they don’t even involve vehicles.

The majority of pothole cases handled by Stephan H. Peskin at Tolmage, Peskin, Harris, Falick, for example, are trip-and-falls on sidewalks. “Sometimes they injure themselves quite seriously—from simple wrist fractures, because you put your hands out and your wrist isn’t ready for that kind of jolt, all the way to fractured femurs or head injuries.”

Daniel Flanzig, who focuses on bicycle-related injuries at Flanzig & Flanzig in New York City, agrees: “What I always say is a condition that causes a driver to spill their coffee could be fatal for a cyclist.”

But just as potholes aren’t created in a day, filing a lawsuit about a pothole-related injury can take a long time to resolve. 

“Five years is not unusual. Litigation against the city of New York is endless,” Peskin says. “I have a client who is a psychiatrist who was out of work for three months and spent many months in rehab because she fell in a pothole in a crosswalk. January 14 of 2015 is when she fell and we’re still in discovery.”

Attorneys advise seeking medical assistance and documenting as much as possible about the accident scene, since changes can happen quickly—sometimes within an hour, says Flanzig. Take photos and jot down contact info for witnesses. If documentation is not possible, Flanzig notes that Google Earth can sometimes help, as well as nearby businesses. “Nowadays you can find video at a store or apartment building adjacent to the accident site,” he says.

Still, determining who is liable can be difficult. “Predominantly, the roadways in Manhattan are owned by the city,” Flanzig says, “but when you leave, it can be state roads, county road, town roads, village roads, and sometimes cross-jurisdictional ones.”

More stumbling blocks. State law says New York may be liable for a pothole-related incident on a state highway if it occurs between May 1 and Nov. 15. And most municipalities have a “prior written notice” law. “With any injury caused by a pothole,” says Christina R. Mercado, a personal injury attorney at Block O’Toole & Murphy, “the municipality will be immune from liability unless they had prior written notice of that pothole. And prior written notice laws are generally very strict, so even if the existence of the pothole was reported, if it wasn’t reported to the correct department or agency in the correct manner, then it won’t count. The result is pretty harsh. You’re kind of at the mercy of a diligent citizen to have reported your specific pothole correctly.”

But there are exceptions to prior written notice, Flanzig notes. “If the city, for instance, installs a manhole cover or other access, for the exclusive use of the city, not the general public,” he says. If these—as well as the 12 inches that surround any street hardware—aren’t properly maintained, you have a stronger case for liability.

Improper installation may also fall under the affirmative-creation exception. “We got a $1.25 million result for a woman who hit a very large pothole—this was in Brooklyn in 2007—and it was four feet deep. There, we pursued the claim based on a very limited exception, which is that the city affirmatively created a defect through an act of negligence in repairing the pothole. According to the expert we used, what they did to repair it immediately resulted in a dangerous condition,” Mercado says.

Sometimes the confusion as to which entity is liable can actually work in the plaintiff’s favor. “I have a case right now involving a judge, where she fell either due to a raised subway grill or a depressed sidewalk, depending on whose perspective looks at it,” says Peskin. “It’s the old John Wayne syndrome: Shoot ’em all and then sort the good guys from the bad guys after.”

How to Report a Pothole

New York City accepts reports for city roadways via nyc.gov. For state highways, you can refer to nyc.gov or the hotline 1-800-POTHOLE. You can also report through direct message via @nyc311 on Twitter or the NYC311 mobile app.