Written and reviewed by Josh Kohanim, Esq., California Bar No. 328609 · Reviewed
In this guide
A crash caused by the road surface rather than by a driver is a claim against the entity that owns the road. The usual defects are potholes, uncovered utility cuts, sunken trench patches, raised pavement at a repaved seam, and drain grates with slots running the direction of travel. A defect on private property is a premises liability case, a claim against the property owner, on the ordinary two year clock.
Proving the road was dangerous
A dangerous condition of public property is defined by Government Code section 830(a) as a condition of property creating a substantial risk of injury when the property is used with due care in a manner in which it is reasonably foreseeable it will be used. Two words in that definition carry the claim. Substantial, because a minor irregularity is not enough. Foreseeable, because riding a bicycle in a marked bike lane is the use the road was striped for.
| Element | What it means | How it is proved |
|---|---|---|
| Dangerous condition | A substantial risk to a careful user | Photographs with a scale, depth measurements, the roadway design standard |
| Causation | The condition caused the injury | Wheel and rim damage, the fall line, reconstruction |
| Foreseeable risk | Of this kind of injury | The defect sits in a bike lane or a travel lane |
| Employee act, or notice | Someone created it, or the entity knew | Work orders, permits, complaint logs, prior repairs |
The fourth element, an employee act or notice, is where these cases are decided. Section 835 gives two routes: an entity employee created the condition within the scope of employment, or the entity had actual or constructive notice under section 835.2 in time to protect against it.
Proving they knew about the pothole
Government Code section 835.2 splits notice in two. Actual notice means the entity knew the condition existed and knew or should have known it was dangerous. Constructive notice means the condition existed long enough, and was obvious enough, that an entity using due care should have found it.
On constructive notice, section 835.2 makes admissible whether the entity had a reasonably adequate inspection system, weighing the practicability and cost of inspection against the likelihood and magnitude of the danger, and whether it operated that system with due care and still failed to find the condition. That puts the entity's maintenance program on trial, not only the pothole.
The records that answer it are ordinary public records: service requests and complaint logs for that block, street inspection and pavement condition reports, work orders and repair histories, utility excavation permits and the restoration inspection that followed, and prior claims at the same location. A repair completed a week after your crash is a dated admission that the entity could fix the defect and knew where it was.
Who owns the road you fell on
The wrong defendant and the right one share the same six month clock, so this question is settled in the first week. A single corridor can change hands twice in a mile.
| Owner | Typically responsible for | Where the claim is presented |
|---|---|---|
| City of Los Angeles | City streets, bike lanes, curb ramps, street drains | The city clerk or governing body, under Gov. Code 915(a) |
| Los Angeles County | Roads in unincorporated areas and county facilities | The county's clerk or governing body, under Gov. Code 915(a) |
| Another city | Its own streets inside its boundaries | That city's clerk, under Gov. Code 915(a) |
| Caltrans | State highways, which Streets and Highways Code 91 assigns to the department | The Department of General Services, under Gov. Code 915(b) |
| A transit agency | Its own right of way, platforms, and rail crossings | That agency's clerk or board |
| A utility or its contractor | An excavation, trench, or plate it installed | A private defendant. Two years, not six months |
The last row is easy to overlook. A sunken trench patch usually began as a permitted excavation, which means there is a permit, a contractor, and an inspection. Two defendants are common here, one public and one private, on two deadlines. Our attorneys present the government claim first.
The claim deadlines in order
| Step | Deadline | Source |
|---|---|---|
| Present the claim to the entity | 6 months from the crash | Gov. Code 911.2 |
| The entity acts, or does not | 45 days, then deemed rejected | Gov. Code 912.4 |
| Sue after a written rejection | 6 months from that notice | Gov. Code 945.6 |
| Sue if no written rejection is mailed | 2 years from accrual | Gov. Code 945.6 |
| Apply to present a late claim | Within 1 year of accrual | Gov. Code 911.4 |
Government Code section 910 sets what the claim must show: your name and address, the address for notices, the date, place, and circumstances of the occurrence, a general description of the injury and loss so far as it is known, the names of the employees who caused it if known, and the amount claimed if it is under $10,000. Section 915 governs where it is delivered. Most entities publish their own claim form, and using it avoids an argument about sufficiency later.
When they say the design was approved
Government Code section 830.6 gives a public entity immunity for injury caused by the plan or design of a construction or improvement, where the plan was approved in advance by the legislative body or an employee with discretionary authority to approve it. There must also be substantial evidence on which a reasonable employee or body could have approved it. It is a real defense, and it is raised in almost every roadway case.
It has limits written into the same section. The immunity covers the design as approved, so a condition that came from construction, deterioration, or a later change is outside it. Section 830.6 also provides that after the entity has notice the plan or design has become dangerous under changed physical conditions, the immunity continues only for a reasonable time to obtain funds and do the work, or, where that is impossible, only so long as it reasonably attempts adequate warnings. Notice restarts the clock on immunity.
Document the defect before it is filled
- Photograph it the same week, with a scale. A ruler, a tape, or a water bottle in the frame. Depth and edge height are the measurements that matter.
- Shoot it from a rider's eye line. A photo from above makes any defect look trivial. A photo from where you were looking shows what you could see.
- Fix the location precisely. Cross street, direction of travel, distance from the curb, and the nearest pole or hydrant number.
- Keep the wheel. A bent rim or a cracked fork is physical proof of the impact and of its force. Do not let a shop replace it before it is photographed.
- File a service request and keep the confirmation. It is dated proof the condition existed, and it is separate from the legal claim.
- Go back and photograph the repair. A patch laid two weeks later documents the original condition and the entity's ability to fix it.
When a road defect claim fails
- The defect is trivial. Section 830(a) requires a substantial risk to a careful user. A hairline seam or a small surface crack will not carry a claim on its own.
- Nobody knew and nobody could have. A pothole that opened in a storm the night before usually fails the notice element, unless an entity crew created it.
- The hazard is on private property. A driveway apron, a parking structure, or a private road is a premises case under ordinary negligence, on a two year clock. Our premises liability page covers those.
- The condition is the approved design. Where section 830.6 applies and conditions have not changed, the claim is against the driver or nobody, and not against the entity.
- A driver was also involved. Then you have two claims on two deadlines, and the six month claim controls the calendar even though the driver's insurer is the one calling you.
When the city pays for the road
Sometimes, and it depends less on how bad the pothole was than on what the entity knew and when you filed. Section 835 supplies the theory, section 835.2 the proof, and section 911.2 the deadline that has to be met before any of it matters. Six months is short enough that the decision gets made while you are still in physical therapy.
The next step is to photograph and measure the defect this week, request the entity's records for that block, and calendar the six month date. Our guides on dooring accidents and bike lane and right hook accidents cover crashes caused by a driver, and the parent page on Los Angeles bicycle accident claims covers the claim as a whole.
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