Rain, ice, snow, and other inclement weather conditions can create a multitude of hazards. While that means increased risks for all types of motor vehicle accidents, including bicycle and pedestrian accidents, there’s another drawback to winter weather: it can wreak havoc on our roads, particularly in the form of potholes. Unfortunately, those potholes can lead to damages to persons and property.
If you’re among the many motorists who’ve encountered a pothole while driving on New Jersey roads, bridges, or highways, you may be well aware of how large and dangerous they can be. If you’ve had the misfortune of hitting, riding, or walking into one, you may also know they can cause some serious damage to vehicles and property, and increase your risks of accidents and injuries.
What many don’t know, however, is that there are laws in place which ensure people harmed by potholes on roads maintained by New Jersey public entities have rights when it comes to recovering damages.
New Jersey Pothole Laws
New Jersey’s Tort Claims Act (TCA), which covers all damage claims against public entities, has specific rules in the laws relating to injuries and damages caused by potholes on government-owned roads. Per the TCA, a person can submit a claim for personal injury and / or property damage (i.e. cost of vehicle repairs not covered by insurance or insurance deductible) to the state, county, or municipality which owns and maintains the road.
Though there are laws protecting the rights of victims harmed (physically or financially) by potholes, state and local entities haven’t had the greatest track record for paying motorists for pothole damages in a timely fashion. For example, the state paid out only 12 of the 2,600+ claims filed in 2014. In 2016, less than 2% of 2,647 claims (39) were successful.
That problem is due overwhelmingly to high denial rates and the TCA’s strict notice requirements for claims against public entities, as well as many motorists’ lack of knowledge that they need to timely notify and file claims with entities responsible for owning and maintaining the roadway where the pothole was located.
TCA Pothole Claim Notices
Under the Tort Claims Act, people with pothole-related damages – be it personal injuries resulting in medical bills, pain and suffering, and other damages or vehicle / property damage – must present the responsible public entity with a notice of claim within 90 days of the incident. Those who miss the small window of time to present notice are normally barred from bringing claims.
To preserve the right to file a pothole claim, motorists and victims must act quickly to notify the appropriate government entity, and file a properly completed TCA claim notice. Levinson Axelrod, P.A. is available to help injured victims and families ensure they meet TCA claim / notice requirements.
Because injured victims typically incur greater losses than people with only property damage, anyone injured as a result of a pothole should seek the help of an experienced lawyer. Those with only property damage claims may be able to navigate the process using the NJ Treasury’s Pothole Claim Form or appropriate local, county, or state reporting / claim system. What constitutes an acceptable “notice” may vary depending on where the incident occurred and who owns the roadway.
NJ APPELLATE CASE RULES ON 311 NOTICES: One recent case drawing attention to New Jersey pothole claims and notice requirements recently resulted in an appellate decision which could impact claimants who report their pothole-related damages, with all TCA-required information, to public entities via 311.
The case – Martinez v. Hoboken – involved a woman who was injured after stepping into a pothole near 9th and Washington St. one morning in Hoboken. As court records show:
- The woman sent a message to Hoboken’s 311 online reporting system describing the situation, location, and her injury later that day. She also attached a photo and provided her contact information if any more were needed.
- After receiving no substantive response to her message, the woman retained a lawyer who contacted the city asking whether the 311 message was sufficient notice, and completed an official TCA form sent by the city following that inquiry – though beyond the 90-day claim submission period.
- The City of Hoboken claimed the woman did not strictly comply with the Tort Claims Act, and therefore denied her claim.
Though a Hudson County Superior Court Judge sided with the woman – ruling her 311 message was sufficient notice – the city appealed that decision to a higher court. On Monday, January 6, 2019, the Appellate Division returned its opinion on the case
It ruled the woman provided the city, coincidentally, with all relevant information required of a TCA notice form to the city in her initial message, that the city had in fact received the message (as evidenced by assigning her a tracking number) but failed to investigate it, and that the 311 message was satisfied legal requirements for providing the City with “timely notice of the claim.”
If you see a pothole, you can use the 311 service to report it. Please be aware that we do not encourage using only the 311 service as a substitute for a properly filed TCA claim when you have been injured by a pothole.
Tips for Reporting Potholes / Filing a Pothole Claim in New Jersey
If you have a potential pothole claim, complying with TCA requirements are crucial to preserving your right to recover damages, and to notifying government officials about potential hazards which may endanger the public. Here are some helpful tips:
1. Know How Pothole Claims Work
Pothole claims are paid by the town, county, or the state which owned and maintained the road in question when the public entity knew about the pothole, but failed to investigate or fix the pothole in a timely manner.
What’s “timely” will vary from case to case. Additionally, there can be no recovery against public entities for damages otherwise covered by insurance, except to the extent of what’s not covered by insurance (i.e. deductible or co-pay).
2. Report Potholes When You See Them
You can help others avoid potential harm and losses by reporting the pothole to public officials. As the woman in the case above did, you may use the 311 system to report potholes – if you have incurred damages due to a pothole, however, 311 reports should not be used as a substitute for a proper TCA claim containing all necessary information required by law. You will still want to “cover your bases” by submitting a proper claim with the appropriate entity.
New Jersey has several resources you can use for reporting potholes:
- For Roads Under State Jurisdiction (Interstate / Route): The online Pothole Form for the NJ Pothole / Highway Maintenance Reporting system.
- For County Roads: The appropriate County Pothole Hotline.
- For Local Roads: The municipality’s office or website.
- For Garden State Parkway or NJ Turnpike: The New Jersey Turnpike Authority (NJTA).
3. Determine Who Owns the Road
You will need to determine which government entity owns the road where your pothole-related damages occurred to avoid delays or denials caused by notifying the wrong public entity. If you’re unsure, you can contact 311, your local city / township / county government, or the state DOT to get clarification. You can also look online or visit their websites to find the jurisdiction for the road in question. Once you know who owns the road, you can submit a formal claim.
4. Gather & File Information
You’ll need to provide information relevant to your incident when presenting notice of a claim and when asked by officials during the claim process. Section 59:8-4 of the New Jersey Tort Claims Act (NJSA 59:8-4) has specific requirements for the information you’ll need to provide when making a claim against a public entity:
- Your name and address
- Date the incident occurred
- Location of pothole (closest intersection, landmark, mile marker, or exit)
- Details / description about the incident and your injury / damages
- Amount of damages claimed at the time of filing the claim (i.e. estimated amount caused by injury, damage, or loss)
Beyond these requirements, you should also gather and retain information and documents which can be used to help your attorney – particularly if you suffered personal injury. These include things like:
- Repair receipts or estimates
- Copy of police report (if one was made)
- Copy of auto insurance policy declaration page
- Any photos of location, damage, or injury
- Contact information of any involved parties or witnesses
5. Ask for Help
Pothole claims can take 3 to 6 months (or longer) to resolve, and payment / reimbursement is not guaranteed. If you have questions about a potential claim, don’t hesitate to ask for help. For questions regarding minor vehicle damages or procedural issues, reaching a public employee may be sufficient in getting the answers you need.
For issues with more serious matters – such as injury, significant damage, or unfair denials / delays – contacting an attorney can help you better understand your rights.
Levinson Axelrod, P.A.: Injury Attorneys Serving NJ Since 1939
A pothole encounter can be inconvenient and costly when vehicles or property are damaged. They can also cause accidents and injuries which create significant economic and non-economic burdens for victims and their loved ones.
If you or someone you love has been injured by a pothole anywhere in New Jersey, our legal team at Levinson Axelrod, P.A. is available to help. Our personal injury lawyers can help you navigate the complexities of TCA claims against public entities, ensure you file your notice and claim properly and with all required information, and assist you in fighting for the compensation you deserve.
With office locations throughout the state and a team of proven trial attorneys, we can help you understand your rights and options for pursuing a potential pothole claim. Call (732) 440-3089 or contact us online to request a free consultation.