Pothole Law: In Winter, New York State Rejects Drivers’ Claims But In Spring It’s Another Story

potholeAfter this brutal winter, if your car was damaged from hitting potholes on New York State highways, such as I-95 and The Taconic, you are not entitled to file a claim against the state for damages. Whether your car was slightly damaged or even totaled because of a defect on a New York State highway, you cannot claim reimbursement for damages from the state. However, this rule expires at midnight tonight. After midnight, drivers should call their lawyer and pursue a claim. Section 58 of the State Highway Law exempts the state from being liable for damages that occurred from defects in highways, except between May 1st and November 15th. 

Courts have ruled that the state is still liable for obvious negligence, but the “winter not-my-fault waiver” has been in effect since 1935, which was when Albany relieved the state of liability for damages caused by snow and ice on highways. The legislative history dates back even earlier in the 20th century, when asphalt companies closed during the winter because the blacktop that was available back then would not stick in cold weather. However, with new products, asphalt companies can certainly extend the paving season.

Approximately 15 percent of the roads in New York, which is about 15,000 miles, are under state control. New York City is under contract with the state to make minor repairs to about 8,000 miles of state-owned roads within their jurisdictions. Typically New York City becomes liable for defects in highways only after there is a written notice of the defect and after 15 days without making repairs.

Thomas Abinanti, a Democratic assemblyman from Westchester County proposes far less time in his bill. Mr. Abinanti says, “Twenty-four hours or even 12 hours would make sense,” meaning once a pothole was reported, the state would have either 12 or 24 hours to fill it before being liable for damages. State Senator Timothy Kennedy of Buffalo, suggests a bill that would allow motorists to obtain damages from the state for “egregious or unreasonable” defects year-round.

The state has a responsibility to ensure that the roads are safe. Essentially, if a pothole has been reported and the state fails to repair it in a timely manner, motorists should be able to be compensated if their vehicle is damaged.

Published In: Personal Injury Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Schwartzapfel Lawyers P.C. | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »