Pothole Crashes and City Liability in Ohio: What Todd v. Cleveland Means for Drivers

Published February 15, 2013 · Ohio Appeals Courts

Every February the freeze-and-thaw cycle turns Dayton-area streets into an obstacle course. Most potholes cost drivers a tire or an alignment. Some of them cost far more. Tammy Todd hit one on a Cleveland street, then another, lost control of her car, and struck a utility pole. When she sued the city, Cleveland argued that it was immune because a pothole is not an "obstruction." Last month the Eighth District Court of Appeals said that is the wrong question, and her case will go to a jury.

The decision is Todd v. Cleveland, 2013-Ohio-101 (8th Dist.), released January 17, 2013. It comes from Cuyahoga County, so it does not bind our courts in Montgomery County, but it reads the same statute every Ohio city relies on, and it is a useful roadmap for anyone hurt by a deteriorated road.

The immunity wall and the road-repair door

Ohio cities, counties, townships, and other political subdivisions start every injury case with a shield. R.C. 2744.02(A)(1) says a political subdivision is generally not liable for injury caused by its acts or omissions in connection with a governmental or proprietary function, and maintaining roads is a governmental function. I have written before about how narrow the openings in that shield are, including in the Supreme Court's recent decision on city pools and rec centers.

One of the openings is R.C. 2744.02(B)(3). It makes a political subdivision liable for injury "caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads." The statute does not define "in repair" or "obstruction."

Cleveland's argument was that the only part of (B)(3) that could apply was the "obstruction" language, and that under an earlier Supreme Court case an obstruction means something that blocks or clogs the road, not a hole in it. The court of appeals did not need to decide whether a pothole can be an obstruction. It held that (B)(3) creates two separate, independent exceptions: one for failing to keep roads in repair, and one for failing to remove obstructions. A road can be in good repair and still be blocked by a fallen branch; a road can be unobstructed and still be crumbling. The "in repair" language has been read to include "fixing holes or crumbling pavement," so a city has a duty to repair potholes that deteriorate into a hazard. Whether or not the pothole was an obstruction, the city could be liable for failing to keep the road in repair.

What you still have to prove: notice

Winning past immunity is not the same as winning the case. The exception is for negligent failure to repair, and negligence requires a duty, a breach, causation, and damages. For road defects, the duty to fix a hazard does not arise until the city has notice of it, either actual notice (someone reported it or a city worker saw it) or constructive notice (the condition existed long enough that the city should have discovered it with reasonable care).

Ms. Todd conceded the city had no actual notice; its records showed no complaints about that stretch of road for the six and a half months before the crash. So the case turned on constructive notice, and here the opinion is instructive about what kind of evidence gets a plaintiff to a jury:

• Photographs taken the day of the crash. Her husband photographed the scene. The copies in the record were poor, and the court could not see the size or depth of the specific pothole she hit, but the photos showed multiple potholes and a deteriorating roadway.
• Her own testimony. She testified that the road "was kind of not good," that she hit one pothole and then another, and that the impact was enough to make her lose control.
• The road's location. The street was less than four-tenths of a mile from a busy city vehicle impound lot. The court reasoned that a factfinder could infer that city employees with responsibility for the roads should have driven that street, seen the condition, and fixed it before the crash.

Viewing that evidence in her favor, the majority held there was a genuine issue of fact on constructive notice and sent the case to trial. The city's separate argument that the pothole was "open and obvious" was not decided, because an appeal from the denial of immunity is limited to the immunity question.

The dissent is a warning about evidence

One judge dissented, and injured drivers should read the dissent as carefully as the majority. The dissenting judge would have thrown the case out because the photographs did not show the size and depth of the particular pothole Ms. Todd hit, and because no expert testified about how long it takes a pothole of that size to form. In the dissent's view, potholes can form quickly under heavy truck traffic, so without better evidence the jury would be guessing.

The lesson is that the evidence you gather in the first days decides whether you ever get to a jury.

What I tell clients to do after a road-defect crash

Because the city will almost always argue it had no notice, the case is built on proof that the hazard was there, that it was big enough to matter, and that it had been there a while:

1. Photograph the defect that day, with something for scale, such as a tape measure, a shoe, or a water bottle in the hole, and photograph the surrounding pavement to show general deterioration. Take wide shots that show landmarks and street signs.
2. Measure it if you safely can. Width, length, and depth. In Todd, the plaintiff tried to add ruler photos on appeal and the court refused to consider them because they were not in the trial record. Get them early.
3. Find witnesses and neighbors. People who live or work on the street often know how long a hole has been there and whether anyone reported it.
4. Request the city's records promptly. Pothole complaints, work orders, street-department logs, and prior claims are public records, and they can establish actual notice.
5. Do not rely on the city repairing the hole afterward. Evidence of later repairs is generally not admissible to prove negligence.

Claims against cities also carry their own procedural rules and shorter practical timelines than a claim against a private driver, which is why our office treats them as a separate practice area: claims against the government in Ohio.

What this means for you

If a pothole or crumbling pavement caused your crash, immunity is not the end of the conversation. Under R.C. 2744.02(B)(3), as the Eighth District reads it, a city can be held responsible for negligently failing to keep its roads in repair, and you do not have to squeeze a pothole into the definition of an "obstruction" to get there. What you do have to prove is that the city knew or should have known. That proof lives in photographs, measurements, witnesses, and city records, and most of it disappears within days.

A road-defect crash often involves more than the city: a contractor whose trucks tore up the pavement or another driver who forced you into the hole may share responsibility. Our Dayton car accident practice looks at all of it, and as I explained in this post on emergency-vehicle crashes, the rules for suing a government body are different enough that early legal review matters.