Tuesday, March 30, 2010


By Darin Wieneke

March Legal Question Of The Month: Will a governmental entity pay for damage to a bicycle that is caused by a pothole

-Question Submitted by Christophe Lenglet (photo below right)

With the receipt of this question, I can officially declare that Spring has arrived Minnesota! Like the first sight of a robin, the pains of potholes are now an annual spring passage here in Minnesota.Unfortunately, the spring declaration is the only good news that I can likely bring to you on this subject.

UNLIKELY, is the short answer. This question is actually pretty complicated and, depending on the specific facts of the incident, can make for a challenging law school exam question. Accordingly, I recommend to anyone incurring property damage or bodily injury as a result of a pothole to consult with an attorney immediately. You will be barred from making a claim, regardless of the merits, if you do not provide proper notice to the governing body of a municipality within 180 days of the incident.

As long as you provide prompt notice, you can attempt to make a claim by way of submitting a Notice of Claim Form to the governmental entity which will then be investigated by the governmental entity and it will determine whether you have a valid claim against it after investigating the matter. The Notice of Claim Forms are generally available online at the applicable entity's website or clerk's office. The outcomes of these proceeding are not very favorable to claimants. In fact, KSTC45 recently contacted MNDOT regarding claims submitted to it in the past year. MNDOT responded by stating that 150 pothole claims had been submitted to it for review in the metro area and that it paid only 2. 3 were still being examined and 145 were rejected. Another option to collect damages is to simply sue the governmental entity in conciliation/small claims court (or in district court depending on the value of the claim).

The outcomes in these other venues are not too promising either. There are a number of reasons why pothole claims are not very successful in any forum. First, governmental entities argue that bicyclists are required to maintain a proper lookout when riding on a street or roadway and should avoid potholes. Accordingly, they argue that any damage to your bike was caused by your negligence. Second, governmental entities will argue that they are protected by a statutory or governmental immunity and/or did not have notice of the pothole. The municipalities often argue that the underlying reason why a pothole was not observed or fixed was because of a policy-level decision, generally due to budget constraints or prioritization. A municipality cannot generally be held liable for policy-level decisions pursuant to Minnesota statutes.

If you can prove that the municipality had actual notice of the pothole prior to your accident, there is a slight chance that you can make a recovery. THAT IS ONE IMPORTANT REASON WHY BICYCLISTS SHOULD REPORT DANGEROUS POTHOLES IMMEDIATELY TO GOVERNMENTAL ENTITIES. Many cities and the State of Minnesota actually have pothole notice forms on their websites.

Ride Safely and Happy Spring!

Darin is a personal injury and wrongful death attorney. In addition to posting periodic triathlon safety articles, he will be answering a legal question of the month. Please send him an e-mail at dwieneke@tewksbury-kerfeld.com if you have a triathlon-related legal question that you would like him to address on MTN.