Last updated · Reviewed by Ron McMinn, Esq.
If a pothole, broken pavement or other road defect caused your crash or fall in California, you may have a claim against the city, county or state agency responsible for that road. These claims follow strict rules. You generally must present a written claim within six months, and you must show that the road was in a dangerous condition and that the agency created it or knew about it in time to fix it. Photos taken early often matter most. This guide explains the steps in plain terms. It is general information and does not describe any real incident.
Who is responsible for the road?
The answer depends on where the defect is:
- City streets are usually maintained by the city.
- Roads in unincorporated areas are usually maintained by the county.
- State highways and freeways are maintained by the California Department of Transportation, called Caltrans.
- Private roads, parking lots and driveways are the responsibility of the owner, and a public entity claim may not apply.
A utility or contractor that dug up the road may also be responsible. If you are not sure who owns the road, a claim can be presented to each agency that may be responsible. Our government claims page explains the process.
What you have to prove
A public entity can be liable for a dangerous condition of its property under Government Code section 835 if the property was in a dangerous condition when the injury happened, the condition caused the injury, the condition created a reasonably foreseeable risk of the kind of injury that happened, and either an employee created the condition or the entity had notice of it in time to protect against it.
Under section 830, a dangerous condition is one that creates a substantial risk of injury, not a minor, trivial or insignificant risk, when the property is used with due care in a reasonably foreseeable way. Small cracks or slight height differences may not qualify. Protecting against a condition can include repairing it, guarding it or warning about it.
Actual and constructive notice
Under section 835.2, an entity has actual notice if it actually knew about the condition and should have known it was dangerous. It has constructive notice if the condition existed for long enough, and was obvious enough, that the entity should have discovered it with due care. Evidence may include whether a reasonable inspection system would have found it. Prior complaints, repair requests and how long a pothole was there can matter.
Design immunity and other defenses
Section 830.6 can protect a public entity from claims based on a road’s plan or design if the design was approved in advance and was reasonable. Agencies may also argue the defect was trivial or that you were not using due care. Our posts on suing the government over a dangerous road or sidewalk and Caltrans road claims cover more detail.
What to photograph
- The defect itself, from several angles and distances, with something for scale such as a shoe, coin or tape measure.
- The depth and width of the pothole or the height of the raised edge, measured if you can do so safely.
- The surrounding road, including lighting, signs, cones, lane markings and any warning.
- Nearby street signs, mile markers or addresses that pin down the exact location.
- Your vehicle, bike, tire or wheel damage, and your injuries over time.
- The same spot again later, to show whether it was repaired.
Only take photos when it is safe. Do not stand in traffic. Write down the date, time and weather, and save the names of witnesses.
The six-month claim
A claim for personal injury against a public entity generally must be presented within six months under Government Code section 911.2. Under section 910, the claim must include your name and address, the date, place and circumstances, a general description of the injury, and the names of any employees involved, if known.
For a state highway, Caltrans says claims of $12,500 or less can be filed with Caltrans on its claim form at a District Claims Office, with no filing fee, and claims over $12,500 go to the Department of General Services Government Claims Program. Section 911.2 notes a $25 filing fee for claims presented to the Department of General Services. Cities and counties usually have their own claim forms.
If the agency rejects the claim in writing, a lawsuit is generally due within six months of that notice under section 945.6.
What if you missed the six months?
A late claim application may be filed within a reasonable time, and not more than one year after the injury, under section 911.4, with the proposed claim attached. Under section 911.6, the agency must grant it on certain grounds, such as mistake, inadvertence, surprise or excusable neglect where the agency is not prejudiced, or the claimant’s minority or incapacity. If the application is denied, section 946.6 allows a petition to the superior court within six months after the denial. Our post on missing the six-month deadline explains each step.
Frequently asked questions
Can I sue the city for a pothole crash in California?
Possibly. Under Government Code section 835 you generally must show a dangerous condition that caused the injury, and that the city created it or had notice in time to fix it. A written claim usually comes first.
How long do I have to file a pothole claim?
Generally six months from the injury to present a written claim under Government Code section 911.2. A late claim application may be possible within one year.
Where do I file a claim for a pothole on a state highway?
Caltrans says claims of $12,500 or less can go to a Caltrans District Claims Office on its claim form, and larger claims go to the Department of General Services Government Claims Program.
What counts as a dangerous condition?
Under Government Code section 830, a condition that creates a substantial risk of injury when the road is used with due care. Minor or trivial defects may not qualify.
What should I photograph after a pothole crash?
The defect with something for scale, its depth and width, the surrounding road and signs, the exact location, your damage and injuries, and the spot again later.
What if a contractor or utility caused the defect?
A private contractor or utility may be responsible through its own insurance. The public entity may also be responsible, so a claim may still be needed within six months.
Talk to us
If a pothole or broken road caused your crash or fall, we are here to listen and explain your options. Win Attorneys is a California firm that represents injured people throughout the state. Talk to us at (562) 296-5380. We speak Spanish and Vietnamese.
Hablamos español. Chúng tôi nói tiếng Việt.
Win Attorneys, 17291 Irvine Blvd., Suite 210, Tustin, CA 92780. Phone (562) 296-5380.
This article is general information and is not legal advice. Reading it does not create an attorney-client relationship.
Sources: Government Code section 835, Section 830, Section 835.2, Section 830.6, Government Code section 911.2, Section 910, Caltrans says, Department of General Services Government Claims Program, Section 945.6, Section 911.4, Section 911.6, Section 946.6.