During a vacation while I was upstate, I was injured in a bicycle accident. I fell from my bicycle when I ran over a pothole in the roadway. Do I have a claim for my injuries?

You might have a claim. In a prior post, there was a discussion of claims against municipalities. Through General Municipal Law section 50-g, local municipalities can avoid liability for personal injuries for defects on roadways and sidewalks. The municipality is not liable for defects on roadways and sidewalks without written notice.

Most New York municipalities take advantage of the statute. Counties and cities have local ordinances on the books which require the municipality receive prior written notice of a roadway defect. I will assume that the particular county or city in which you were vacationing has such an ordinance.

Highway Law

But there may be a law that can help. Highway Law § 139(2), provides that “. . .no civil action shall be maintained against such county for damages to . . . person . . sustained by reason of any highway, bridge or culvert being defective, out of repair, unsafe, dangerous or obstructed unless written notice of such defective, unsafe, dangerous or obstructed condition was actually given to the clerk of the governing body of such county or the county highway superintendent . . . [or] unless such defective, unsafe, dangerous or obstructed condition existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence. . . .” So you might recover for your injuries. Phillips v Nassau, 50 AD3d 755 (2d Dept 2008); Loughren v Ulster, 75 AD3d 976 (3d Dept 2010).

But the statute does not define what it means about notice of unsafe conditions. You will probably end up having to hire an expert on roadway conditions.

You will have to have an expert evaluate the pothole which caused your accident and have them give an opinion how long this pothole had existed prior to your accident. But it is probably safe to say that if the pothole was only a few weeks old, you would not have a case. The expert would have to evaluate the pothole — take measurements on its depth and width — in order to render an opinion about how long that it had existed prior to your accident.

So depending on the roadway expert, you might have a claim.

By James Santner, Esq.

If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.