This article was first published in the November 2016 issue of Plaintiff magazine (plaintiffmagazine.com).
Dangerous road surfaces and notice against governmental entities
A beautiful morning. Jane Client was biking to work with a couple friends. As she approached an intersection, her front tire dropped into a crack – wide enough to swallow her tire but narrow enough to be difficult to see. Her front wheel stopped. The rider – and the rest of her bike – continued forward, rotating over the tire. Her face smashed into the ground. After Jane’s friends got her in the ambulance, they looked at the road. They noticed the long, narrow crack that ran parallel to vehicle travel. The quick-thinking friends took photos, laying a bike next to the crack for reference. They then suggested their friend might want to talk to a lawyer. Pavement was not supposed to look like that.
Not all it’s cracked up to be
The technical term for that pavement issue? Longitudinal cracking. Cracks arise as pavement settles or water seeps in. As it expands, whole areas can break down, known as alligator cracking (asymmetric cracks resembling an alligator’s back). Vehicles rolling over these cracks cause chunks to break free, or potholes. A slow process, corrected with patches if caught early.
Starts and stops
Corrugation and shoving are two other common defects. Asphalt, one of the most common paving materials, has plastic properties. With heat, weight, or poor mixes, it moves. Vehicle starts and stops, like intersection approaches, magnify the issue. More vehicle weight – such as on truck routes or bus routes – increases risk. The resulting ripples are called corrugation. Corrugation’s cousin, shoving, occurs when the asphalt getting pushed abuts more solid material, like a concrete bus pad.
Bus pads are concrete road sections put down specifically at bus stops to minimize asphalt slippage. Concrete is not plastic – it does not move. Bus pads are great if the drivers stop on the pads but not great if the bus uses only part of the pad. Partial pad use is common on busy streets. Bus drivers, trying to keep on schedule, block part of the roadway to prevent cars from preventing the bus merge after it picks up passengers.
We didn’t notice that
Governmental entities generally defend by saying they weren’t aware of the issue. The technical term is “notice.” They did not know, or could not have known, about the condition. One can have a terrible injury and terrible road, but without notice, the entity is not liable.
So how does one establish notice? Documented knowledge is rare but happens.
• The entity’s website
Start with the entity’s website to get an idea of what departments or commissions to investigate. There’s a surprising amount of information posted. Look for bicycle or pedestrian master plans. The plans outline ambitions that are rarely completely delivered. Figure out who to make the Sunshine Act request to. Ah, the glorious Sunshine Act. Send a letter to the entity asking for a pile of information, receive said pile of information a couple weeks later.
• Street repairs and the Department of Public Works
Useful information is usually first found in documents from the Department of Public Works or whatever name the entity uses for its street repairs. What files do you ask for? Paving, repair history, and citizen complaints foremost. But most entities also do Street Paving Indices. These regular surveys evaluate road conditions block by block. They typically note issues using paving terms (shoving, alligator cracking). They also rate the road on a scale of 0 to 100. With Prop. 13 and the 2008 crash, most departments are underfunded. The street indices continue but reflect a broken system. Sad for road users. Helpful for proving notice.
• Collateral notice
Remember that every city employee is an agent of notice. Use a little creativity in figuring out who might have been there. A regular bus route means hundreds of drivers drove over the spot in the last week. An idea from a colleague: ask for the profits and repair history of parking meters as well as tickets issued (and revenue generated). This makes a nice profits-over-safety argument when the block generates $15,000 and the entity has not spent a dime on repairs. It also reflects that the spot has been visited by folks who parked their cute little parking enforcement carts directly over the damaged pavement. By the time one is done, there will be a history of city employees observing the area hundreds of times.
Don’t forget about the Statewide Integrated Traffic Records System operated through the California Highway Patrol. The CHP gathers data from all traffic collision reports – including those outside its jurisdiction. Sometimes one will get lucky and find a prior police report that notes a prior injury caused by that same exact spot.
Back to our injured cyclist. She spoke with a lawyer, who did some digging. In doing so, the lawyer found enough information to establish liability. A detailed demand package followed. The entity, in a surprising approach, opted to resolve the claim for fair value instead of requiring full litigation.