October 4, 2004
There appear to be a growing number of claims against the City of Richmond for damages to vehicles caused by potholes. All of these are
routinely denied based on the defense that the City had no constructive notice of a pothole (and presumably did not have time to repair it).
The constructive notice defense is based on Government Code Section 835, copied below. The City uses the arbitrary time of 48 hours as the
minimum notice it needs to address a pothole repair.
So, if you ever want to have a prayer of successfully processing a claim through the City for damage caused by a pothole, someone has to
have gone on the record as reporting the existence of the pothole at least 48 hours in advance of the damage occurring. Presumably, this
would also apply to any other potentially dangerous aspect of the City infrastructure such as sewers, public buildings, parks, etc.
Sidewalks are the responsibility of the abutting property owner and not the City, so any claims related to injuries caused by sidewalks are routinely denied.
835. Except as provided by statute, a public entity is liable for
injury caused by a dangerous condition of its property if the
plaintiff establishes that the property was in a dangerous condition
at the time of the injury, that the injury was proximately caused by
the dangerous condition, that the dangerous condition created a
reasonably forseeable risk of the kind of injury which was incurred,
and that either:
(a) A negligent or wrongful act or omission of an employee of the
public entity within the scope of his employment created the
dangerous condition; or
(b) The public entity had actual or constructive notice of the
dangerous condition under Section 835.2 a sufficient time prior to
the injury to have taken measures to protect against the dangerous
835.2. (a) A public entity had actual notice of a dangerous
condition within the meaning of subdivision (b) of Section 835 if it
had actual knowledge of the existence of the condition and knew or
should have known of its dangerous character.
(b) A public entity had constructive notice of a dangerous
condition within the meaning of subdivision (b) of Section 835 only
if the plaintiff establishes that the condition had existed for such
a period of time and was of such an obvious nature that the public
entity, in the exercise of due care, should have discovered the
condition and its dangerous character. On the issue of due care,
admissible evidence includes but is not limited to evidence as to:
(1) Whether the existence of the condition and its dangerous
character would have been discovered by an inspection system that was
reasonably adequate (considering the practicability and cost of
inspection weighed against the likelihood and magnitude of the
potential danger to which failure to inspect would give rise) to
inform the public entity whether the property was safe for the use or
uses for which the public entity used or intended others to use the
public property and for uses that the public entity actually knew
others were making of the public property or adjacent property.
(2) Whether the public entity maintained and operated such an
inspection system with due care and did not discover the condition.
835.4. (a) A public entity is not liable under subdivision (a) of
Section 835 for injury caused by a condition of its property if the
public entity establishes that the act or omission that created the
condition was reasonable. The reasonableness of the act or omission
that created the condition shall be determined by weighing the
probability and gravity of potential injury to persons and property
foreseeably exposed to the risk of injury against the practicability
and cost of taking alternative action that would not create the risk
of injury or of protecting against the risk of injury.
(b) A public entity is not liable under subdivision (b) of Section
835 for injury caused by a dangerous condition of its property if
the public entity establishes that the action it took to protect
against the risk of injury created by the condition or its failure to
take such action was reasonable. The reasonableness of the action
or inaction of the public entity shall be determined by taking into
consideration the time and opportunity it had to take action and by
weighing the probability and gravity of potential injury to persons
and property foreseeably exposed to the risk of injury against the
practicability and cost of protecting against the risk of such