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Latest Danger on DFW Roads: Pot Holes

You may be driving down the street when your car or truck hits a giant pothole or road defect. This happened last week in Fort Worth on West Seventh Street when a 10 foot wide sinkhole sank a Lexus. Fortunately, no one was hurt but with the RAINIEST YEAR IN North Texas history behind us, who knows when the neck road or bridge is going to cave in? The report says the average Pavement Condition Index of Dallas’ is 65.4 — a high C. Who is liable under Texas law if this happens?

It is frightening that Texas’s roads were just rated a D in this report.

Our highways are sometimes designed and maintained poorly and cause crashes. Over the past nearly 40 years, I have seen these road hazards that have led to sometimes catastrophic car and truck wrecks:

  • Huge potholes and cracks
  • Large debris and standing water
  • Inadequate or nonexistent shoulders with steep drop-offs
  • Overgrown trees blocking visibility of signs and other vehicles
  • Missing or malfunctioning traffic signals and signs
  • Poorly designed bridges, curves or grades
  • Inadequate lights
  • Poorly designed or placed signs
  • Dangerous ridging and buckling of pavement

Texas law governing defective roads

Who is liable if a car or truck wreck in Fort Worth or Dallas is caused by a road hazard? This depends on the specific facts of the case because a combination of premises liability, governmental duty, and negligence law applies. There are numerous statutes and court cases that apply.

Different government agencies design, build, and maintain roads at the federal, state, county, and local levels. But they can be shielded from liability due to stringent protections in the Texas and Federal Tort Claims Acts. In addition, construction companies and third parties can be involved, further complicating the issues.

The design of safe roads is made by government agencies that are required to abide by the standards established by the American Association of State Highway and Transportation Officials and the Texas Department of Transportation. Signs must abide by the Manual for Uniform Traffic Control Devices. Other rules and regulations from governments and private companies also apply.

We investigate whether the road design or signs caused or contributed to the auto collision. If so, we investigate and obtain the necessary evidence against the liable government agency or contractor. Sometimes individual drivers are not the only parties that caused the crash to happen.

Here are some examples of improper road design:

  • Blind curves
  • Confusing intersections
  • Too narrow lanes of traffic
  • No or inadequate shoulders
  • Excessive grades of hills

But not all road hazards are legally dangerous conditions including the following:

  • A drop off or uneven pavement that is less than two inches
  • Roads that are under water or damaged due to buried water mains (as what happened in Fort Worth)
  • Barrel signs
  • Cars that are legally parked
  • Any defective road that is on a school’s site

Suing a government agency

If the crash was caused by a defective highway or road hazard, you will usually have to file a lawsuit against the state or county. Note that these lawsuits are intricate and vigorously contested by the Attorney General’s office, often assisted by a private law firm. You need to hire a law firm that has successfully represented injured people in these cases.

The government usually enjoys sovereign immunity from being sued. However the State of Texas has limited exceptions in these cases that may enable you to file suit. There are strict deadlines for filing pre-suit notices and lawsuits and other procedures that must be followed. A personal injury lawyer will explain these specialized procedures to you.

I recently discussed filing a claim against and suing the government in more detail here: How much money can you get if a government vehicle crashes into you?

How an attorney will help

On your own, you will be overwhelmed by the legal process. The state and/or insurance company for the negligent party will know that you do not know how to file a lawsuit and take your case to a jury and not pay you the damages you are seeking.

With an experienced lawyer by your side, you will be guided through the intricate legal system. All questions will be answered. Evidence will be obtained. Documents will be filed. A trial will be scheduled and a jury convened to hear your case and award you compensation. You have a much better chance of recovering the money you are entitled to receive.

If you have been injured in a car or truck accident, we will also examine whether hazardous road design or maintenance was involved. We fight for the safety of our clients and their safe driving is our #1 concern at Berenson Injury Law.


__Texas plaintiffs can have difficulty bringing claims against a governmental entity due to governmental immunity. However, there are many exceptions to governmental immunity that allow plaintiffs to bring claims against governmental entities. In a recent case before a Texas appeals court, the court upheld a claim against the Texas Department of Transportation after the plaintiff was involved in a car accident.

The plaintiff was driving a tractor-trailer on Highway 83 traveling toward Laredo. Another tractor-trailer stopped in front him, and he slowed and went onto the shoulder to avoid colliding with the tractor-trailer. The plaintiff hit an 8 ¾ inch drop-off between the shoulder and the ground. One of the truck’s tires went onto the ground and as the plaintiff tried to bring the tire back onto the shoulder, the tire popped, causing the tractor-trailer to tip over onto its side. The plaintiff brought a premises liability claim against the Texas Department of Transportation, but the Department argued that it was immune from suit. A jury found the Department was negligent, and the court awarded the plaintiff $250,000 in damages. The Department appealed the decision, arguing again it was immune from suit.

Governmental Immunity under Texas Law

Governmental immunity protects the political subdivisions of the state from suit, such as counties, cities, and school districts. A Texas governmental entity is normally immune from lawsuit unless specifically waived under Texas law. The plaintiff has the burden of showing how immunity has been waived. Governmental immunity is waived for certain claims under the Texas Tort Claims Act.

The Court’s Decision

Under the Texas Tort Claims Act, governmental immunity is waived for “special defects such as excavations or obstructions on highways, roads, or streets.” In this case, a Texas Department of Transportation maintenance supervisor testified that the Department’s manual states that three inches is the maximum depth of an acceptable drop-off. He also testified that employees inspect highways conditions and that ten days prior to the accident, employees were repairing potholes on that road and should have been able to see the drop-off. He also testified that as a supervisor he should have had policies and procedures in place so that he would have known about the hazard.

The court found that in this case, the drop-off was an unexpected danger to drivers. The drop-off was greater than the maximum acceptable height, and steep drop-offs can prevent drivers from reentering the roadway and cause them to lose control of their vehicles. Therefore, it concluded that it was a “special defect” and the government could be held liable, thereby upholding the jury’s award in favor of the plaintiff.

Under Texas law, who is liable for car accidents caused by road defects (pot holes, improper signage, etc.)?

Perhaps the most catastrophic road defect in recent memory was the 2007 I-35 bridge collapse in Minnesota, which killed 13 motorists and injured almost 150 more. In the aftermath of that tragedy, Minnesota ended up paying more than $37 million dollars in compensation to the victims and their families. While most accidents involving poorly maintained highways are not on the scale of the I-35 bridge disaster, it does not mean that they do not result in needless injury to unsuspecting motorists. However, the law regarding what the government is liable for is complex for non-lawyers, and even a bit tricky for less experienced lawyers.

The confusion arises from the fact that there are two separate, but somewhat related areas of law that apply to accidents caused by roadway conditions; The first relates to dangerous conditions that exist on a piece of property, even government property, while the second area deals with a duty owed by the government to ensure that signs and traffic signals are functioning and replaced when stolen or damaged.

This list of dangerous roadway conditions recognized under Texas law has been developed over years of court rulings and is not something that a person without legal training would be able to figure out on their own. That is why it is important to have an experienced car accident attorney, like those at Grossman Law Offices, examine your case to discover if you have an actionable claim against the government for dangerous roadway conditions, which led to your accident.

One other note, if the roadway defect can be traced to poor engineering, construction techniques, or materials, it may be possible to pursue a claim against the contractor who built the road. But in this article, we’re going to explain when, under Texas law, the government (city, state, or county) is liable for an accident caused by a road defect.

Questions answered on this page:

  • Under Texas law, which roadway conditions give an injured motorist the legal grounds to pursue a claim and which do not?
  • What criteria must be met for a claim to be actionable?
  • What duties does the state owe as far as maintaining and replacing signs?
  • How can an experienced car accident attorney help you pursue a claim against the state when you have been injured by an accident caused by poorly maintained roadways.

What are considered bad roadway conditions?

There are a number of things that can cause hazardous driving conditions, including:

  • Potholes/Cracked Roads
  • Improper Drainage
  • Poor Road Design
  • Broken/Inadequate Guardrails
  • Narrow Roads/Shoulders
  • Gravel on a Roadway
  • No Reflective Paint
  • Depressions in the Roadway
  • Icy bridges and overpasses
  • Vegetation that obstructs the roadway

Under Texas Law these are not dangerous roadway conditions for which the state has any liability:

  • Legally parked cars
  • Barrel signs on the roadway
  • Uneven pavement where the difference is less than 2″
  • Roadways compromised due to issues with buried water mains
  • Any roadway issue on school property

If your particular situation isn’t on one of those lists, it means that, most likely, that particular condition has not yet been litigated in Texas and there is no precedent. Even if there is no precedent, that does not mean that you do not have a valid claim. In fact, the only way to establish precedent is for a Texas court to rule on the issue. At Grossman Law Offices, we have been involved in a number of precedent establishing cases over the years. We’re not scared away from helping an injured person pursue their claim, just because the law is silent on a particular issue.

The Elements of a Roadway Defect Case

When pursuing a case caused by a roadway defect, the case proceeds as a premises liability claim. This means that the plaintiff (in this case the injured motorist) has certain things that she must prove in order to win the case. These elements include:

  • The government could foresee the danger of a particular roadway hazard.
  • The government knew about the danger, but did not fix the hazard in a timely manner.
  • The government failed to warn the motorist of the hazard.
  • These failures contributed to the accident and resulting injuries.
  • The injured motorist had no way of anticipating the hazard.

In the first element, to determine foreseeability, the government is held to the reasonable person standard. In essence, the law asks, could a reasonable person have foreseen the danger of X? In this case, X would be the roadway hazard. A good example of this test are small bridges and overpasses on highways. A motorist can travel over such bridges without even noticing that they are on a bridge. We all know that in the winter these bridges can become especially treacherous when they ice over, therefore the government can also foresee the danger and that motorists might not be able to foresee it. As a result, almost every bridge and overpass has a sign warning of potential icing hazards, because if they didn’t, and an accident ensued, the government could be held liable for those injuries.

The law also requires that the government have notice of the issue. “Notice” is a legal term of art that means that someone knows or should know something.

Imagine that an 18-wheeler is pulling a flatbed trailer, and on that flatbed trailer is a backhoe. The rear shovel of the backhoe is dragging behind the roadway, leaving a lunar landscape of potholes in its wake. If Bob rides on his motorcycle two minutes later and crashes when he rides into one of these potholes, it would be very difficult for him to argue that the state is at fault, since a two-minute window between the potholes forming and the accident did not give the state enough time to respond. In other words, the state did not have proper notice.

Suppose a period of time elapses and the state receives numerous complaints about giant motorcycle-eating potholes, but does nothing to affect repairs. Bill drives by on his motorcycle, crashes due to the potholes and is killed. Bill would have a very good claim against the state due to the roadway defect, because the government would have had notice in the form of complaints and elapsed time.

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Returning to our icy bridge example and the warning signs placed near almost all bridges and overpasses, the government does this to warn motorists of the potential hazard. In most instances, if the government has given a motorist a warning, in the form of a sign, then the government has fulfilled its duty and has no liability. Even in the pothole example from above, if the government puts out a sign that says, “giant motorcycle-eating pothole ahead,” then even if a motorcyclist did hit the pothole and sustain injuries, the government would not have any liability since they warned the motorist of the hazard.

Tweaking the pothole scenario just a bit can help illustrate the requirement that the motorist have no way of anticipating the hazard. Suppose our giant motorcycle-eating pothole is in Abilene. If you live in Abilene and drive past the motorcycle-eating pothole everyday on your commute, then even if there is no sign and the government does nothing to fill in the pothole, it would be difficult to pursue an injury claim if the pothole caused the accident, because you knew the pothole was there from driving past it everyday. However, if someone from Dallas was passing through, driving on that same stretch of road, it would be very unlikely that they could know about Abilene’s giant motorcycle-eating pothole and if the pothole contributed to their accident, they would have grounds to pursue an injury claim.

The good news is that if you can prove all of these elements, you have a valid injury claim and the potential to hold the government accountable for a portion of your injuries. The bad news is that under the law, you can only recover injury and wrongful death damages, property damages are excluded and you cannot recover those. So even if a motorist wins their case, the costs of repairing their vehicle or purchasing a replacement are on the motorist, not the government.

How the Law Works When Signs Cause an Accident

According to case law, the only duty the government owes regarding traffic signage is a “duty to replace.” This duty means that when a sign is damaged, stolen, or malfunctioning the government has a duty to restore the sign so that is conveys the information that it conveyed before the sign was damaged or stolen.

Unlike with the roadway conditions mentioned above, the government has to be given actual notice that a sign or signal is missing or not functioning properly. Whereas no one has to actually let the government know that a bridge is icy because of cold, wet conditions, since it is foreseeable that when it is cold and wet, there will be ice, even if the government hasn’t performed maintenance on a traffic light for 30 years, they still have to be notified that the light is not working properly. For this reason if lightning strikes a traffic signal and it goes out, resulting in an accident that injures several people, the motorists would not have an injury claim against the government, because the government did not have notice that the sign was out.



CITY OF DENTON V. PAPER   – Cyclist hit potholes, loses at S Ct   11-0596   2012

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