I hit two potholes that are about one foot apart on St. James Road at 52nd Street. It really damaged my car’s alignment. They’re on city of Vancouver property, right in the line of travel, and you couldn’t avoid them unless you’d hit them before and knew where they were at. I got a damage estimate for $305 and filled out a form, but then I got a letter from the city that says they’re really sorry but they’re not liable. My car is an ’86 Nissan and it’s my medical transportation. I’m on Social Security and I don’t know how I’m supposed to come up with all this money. The city should be held accountable.
— Eula Zarling, Hazel Dell
It’s not unheard of for the city to pay out a pothole-damage claim, according to Susan Lindahl, the city’s liability administrator — but it’s pretty rare.
Here’s why, according to standard language in the response Lindahl sent to Zarling: “The City of Vancouver’s insurance is negligence-based. The Courts have consistently held municipalities exempt from liability in cases wherein there was no advance notice of a specific defect and reasonable opportunity to make repairs.”
Lindahl has handled liability claims for numerous cities over the last couple of decades, and she said the policy is pretty consistent across the board: cities aren’t responsible for damage caused by potholes they didn’t know about and didn’t have time to fix.
“If you think about it, cities are responsible for miles and miles of roadway and we can’t possibly know when every defect occurs,” she said. “When the city does receive notice, we are diligent in responding. But we can’t fix something we’re not aware of.”
Potholes can open up quite suddenly, she said, due to fluctuating or extreme weather and traffic conditions — freezing and thawing, sun and rain, rumbling trucks.
Only if the city did have “notice and opportunity” to make a fix, she said, does a second liability test arise: How much real-time responsibility was there on the part of the motorist to avoid the hazard? Lindahl pointed out that state law (RCW 46.61.445) tasks the driver with “due care and caution.”
“The burden is on the motorist to be aware of conditions and hazards,” she said. Even if the city did have time to fix the hole, that doesn’t mean it will automatically assume 100 percent responsibility for a claim. It’s been known to conduct careful evaluations and pay out portions of damage claims, she said.
Lindahl has also worked in the private insurance industry, she said, and its pothole policy is parallel: Pothole damage typically isn’t covered by your “comprehensive” policy (what you couldn’t control) but by your “collision” policy (what you could). So if you file a claim, chances are you’ll pay a deductible, and your rates may rise.
Pothole damage claims are the most common type of liability claim the city faces, Lindahl said, at approximately three per month — more in winter than in summer, and more incidents occurring in darkness than daylight.
Compared to other cities she’s worked for, she added, the city of Vancouver’s roads are in good shape and its road crews quite responsive.
“It’s a very, very small percentage, but every once in a while I’ll receive confirmation that the city did have notice and opportunity, and we dropped the ball,” she said. “With this claim in particular, our road operations department received the call and dispatched a crew the same day.”
— Scott Hewitt
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