Potholes and Road Defects: When You Can Make a Claim Against a City or ODOT

Published February 12, 2019 · Injury Law Basics

February in the Miami Valley means freeze, thaw, refreeze, and a fresh crop of potholes on every road from Wilmington Pike to Route 4. Most of them cost a driver a tire and a bad afternoon. Some of them throw a motorcyclist to the pavement, send a car across the center line, or flip a cyclist over the handlebars.

When a road defect causes a crash, the question I hear first is, "Can you even sue the city?" The answer is yes, sometimes. Ohio law protects governments from most lawsuits, but road maintenance is one of the places where the protection has a hole in it, and it is worth knowing exactly where that hole is.

The starting point: government immunity, with an exception for roads

Ohio's cities, villages, counties, and townships are "political subdivisions," and under R.C. 2744.02(A)(1) they are generally not liable for injuries caused by their employees or operations. That is the baseline, and the insurer or law director for the city will start there every time.

But the same statute lists exceptions. The one that matters here is R.C. 2744.02(B)(3), which makes political subdivisions liable for injury, death, or loss caused by their "negligent failure to keep public roads in repair" and their negligent failure to remove obstructions from public roads.

Two features of that exception shape every pothole case:

• It covers the road itself. Ohio defines "public roads" in a way that leaves out things like berms, shoulders, and most signs, and courts have read "in repair" to mean maintaining the pavement's physical condition rather than redesigning the road or adding safety features. I discussed that limit in a 2016 post on a county road-edge case. A deteriorated pothole in a traveled lane sits squarely within the exception.
• It requires negligence. The government is not an insurer of every road. You generally have to show that the city, county, or township knew or should have known about the defect and failed to fix it within a reasonable time.

An appeals court applied this exception to a Cleveland pothole crash several years ago, and I wrote about that case and what it teaches about proof.

State roads: ODOT and the Ohio Court of Claims

The State of Ohio follows different rules. The State, including the Ohio Department of Transportation, has waived its immunity under R.C. 2743.02(A)(1) and agreed to be sued in the Ohio Court of Claims in Columbus, under the same rules of law that apply to private parties. That means a claim against ODOT is, at bottom, an ordinary negligence claim: ODOT is generally liable if it knew or should have known about a hazardous defect on a road it maintains and failed to correct it reasonably.

There is no jury in the Court of Claims. A judge decides the case. Smaller claims, those for $10,000 or less, are decided through a simplified administrative process run by the court's clerk under R.C. 2743.10, which is how many drivers handle a damaged-tire claim without a lawyer. Injury claims are a different matter and belong in front of a judge with full evidence.

Who maintains the road? Find out before you file

The single most common mistake in road-defect cases is suing the wrong government. Interstates such as I-75, I-70, and I-675 are generally ODOT's. But inside many city limits the city maintains even numbered state routes, and county and township roads belong to the county engineer or the township trustees. A pothole on a road in Washington Township may be the township's, the county's, or a city's depending on the exact location.

Do not guess. The answer determines which court you file in, which deadline applies, and which records you need.

The pothole that damaged your car versus the one that hurt you

A pothole that blows out a tire on a dry afternoon is a property-damage claim. It is real money to the driver, but the claim is small, the process is simple, and many people handle it themselves.

A pothole that causes a motorcycle to go down, a car to swerve into oncoming traffic, or a bicyclist to be thrown is a personal injury claim, often a serious one. Riders and cyclists are especially vulnerable because a single deep defect can cause a total loss of control. Our motorcycle accident practice sees these cases every spring. An injury claim deserves a full investigation from the start, not a form complaint.

How notice is proven in practice

The government's best defense is almost always, "We didn't know." Your job is to show that it did, or should have. The proof usually comes from public records:

• Citizen complaints and service requests. Many cities accept pothole reports by phone or online. A complaint about the same spot weeks before your crash is powerful evidence.
• Work orders and patching logs. Records showing the hole was "patched" repeatedly can show that the government knew the spot was a recurring problem.
• Inspection schedules and road-condition reports. These can show how often crews drove the road and what they should have seen.
• Prior claims and crashes at the same location.

These records can be requested under Ohio's public-records law, and they should be requested quickly, before the defect is repaired and the paper trail goes stale.

Document it before the patch truck arrives

Potholes get fixed, sometimes within a day of a serious crash. That repair may be good for the next driver and bad for your case. If you or a family member can do it safely:

1. Photograph the defect from several angles, with something for scale such as a shoe, a tape measure, or a water bottle.
2. Record its exact location, including the nearest address, cross street, or mile marker, and which lane it is in.
3. Capture the surrounding conditions: lighting, whether the hole was filled with water, and whether there were any warning signs.
4. Report the defect in writing to the city, county, or ODOT, and keep a copy. Your report creates a record of the date and of the condition.
5. Keep the damaged tire and rim, and the motorcycle or bicycle, if at all possible.

Two years, and sometimes less margin than you think

Claims against cities, counties, and townships must generally be filed within two years under R.C. 2744.04(A). Claims against the State in the Court of Claims also have a two-year limit under R.C. 2743.16(A). Two years sounds like plenty of time, but identifying the right defendant and gathering maintenance records can take months. Starting early matters.

What this means for you

Government immunity is real, but it does not cover a city, county, township, or the State that knew a road was falling apart and left it that way. If a pothole or road defect caused your crash, the case turns on who maintained the road, what they knew, and how quickly you preserved the evidence. Our page on claims against the government explains more about how these cases differ from an ordinary car accident claim.