Government liability for potholes, other road defects, explained

By Jeffrey Tasher, Fort Bliss Claims Office:

(El Paso, Texas, Dec. 7, 2017)

Have you or someone you know ever slipped on a crack in a public sidewalk or run over a pothole with your vehicle on a city or county road and tried to recover for your injury or damage? Most likely, the local government authority asked you to fill out some type of claim form, submit it within a certain timeframe and wait for a reply.

Was your claim allowed? In many cases, the local authority will deny the claim and cite some state law or statute that makes them not liable. In Texas, if your claim involved a pothole, most likely the statute cited was the one dealing with municipal liability for defects in the public roadways. Such statutes, which raise the level of proof required to show liability, are specifically designed to protect municipal governments from the impact of large damage awards from civil lawsuits.

When a premises incident of this type occurs on Fort Bliss property, a person wishing to file such a claim must proceed under one of two statutes enacted by Congress. For a military member seeking to recover for property damage, the statute is the Military Claims Act. For civilians recovering for either property damage or personal injury, their remedy is the Federal Tort Claims Act. Claims by military members for personal injury incident to service are normally not allowed under longstanding decisions by the U.S. Supreme Court.

Claims for damage to personally owned vehicles from driving over potholes on Fort Bliss do occur. Whether the claimant is a military member filing under the MCA or a civilian filing under the FTCA, the analysis is basically the same. Both laws require the presence of a negligent act or omission by a U.S. Army employee (Soldier or Department of the Army civilian) acting within the scope of employment. This “in-scope” element is formally known as the “course and scope of employment” requirement, similar to the line of duty test under many Army regulations. In the case of potholes on Fort Bliss premises, this scope of employment requirement normally presents no major hurdles as the pothole exists on property owned by the Army.

Whether the claim is pursued under the MCA or FTCA, the next step of this liability for potholes analysis is to apply the premises liability law of Texas. Usually, it is this step of the analysis where the claimant cannot meet his or her relatively high burden of proof, as legislators have written the laws in this area to shield governmental units from liability to the greatest extent possible.

In many lawsuits against landowners for defects on their premises, the owner claims the injured person was “only a trespasser” and is therefore not entitled to recover any damages. In Texas, there are three categories of premises liability claimants. One of them is the trespasser, who generally will not recover. The other two categories are the invitee and the licensee. The premises owner owes the higher duty to the invitee, who is normally a person entering the premises to do business with the owner. Basically, the duty owed an invitee requires the owner to investigate his property to make sure it is clear of defects or hazards, and the owner is liable even for unknown defects where a reasonable search of the premises would have disclosed the hazard. Licensees typically include social guests or persons entering the property with the owner’s permission but not for any business reason. For the licensee, the owner is liable only if he actually knew about the defect, failed to take corrective action and the defect was not otherwise obvious.

In Texas, when a pothole is involved in a premises incident, courts first look at the nature and extent of the condition and give it a label of either a “special defect” or a “premise defect.” A special defect under Texas law is defined only as those conditions such as “excavations or obstructions on highways, road or streets.” As the statute itself provides little definition, state courts have devised guidelines for determining what is, or is not, a special defect. Basically, Texas courts require that the pothole or other roadway condition “present an unexpected and unusual danger to ordinary users,” which means the hole must be substantial and not a mere annoyance to users of the road.

How large the pothole must be is left to the court (or fact finder handling an administrative claim) to decide and by reliance upon prior cases finding a special defect. A recent Texas Supreme Court decision summed it up by saying “not every hole or hindrance is special; otherwise, the statutory limitation on the government’s duty would amount to little” and by example stated that “a layer of loose gravel on the roadway surface, while a hindrance, is not a special defect because it does not physically block the road.” Nor are storm flooded streets or icy roads considered special defects as neither are unexpected or unusual, but rather, entirely predictable or something motorists can and should anticipate when the weather is conducive to creation of such conditions. Similarly, metal spikes protruding from curbs in post parking lots are also not considered special defects as, again, they are easily observable and avoidable by a motorist parking a vehicle.

There is no litmus test to solve all cases. Rather, one may say only that the larger, the more unexpected and the more unusual the pothole is, the more likely it will be found to be a special defect. Once a finding of a special defect is made, the claimant acquires the status of an invitee and notice of the hazardous condition by law is attributed to the governmental unit. With potholes qualifying as special defects, the governmental unit has the duty to warn roadway users of their presence by posting signs or taking other reasonable steps to protect the roadway user from potential damage. Absent some other defense, such as contributory negligence, recovery is allowed and the claimant will be paid his reasonable damages. An example of contributory negligence would be that the claimant himself was also negligent in not seeing the hole or was speeding in his vehicle.

On the other hand, when the pothole is not sufficiently large, unexpected, or unusual enough to be considered a special defect, then a court applying Texas law will find the pothole to constitute only a “premise defect.” In this case, the claimant is entitled by law to only licensee status, and he must show that the premises owner actually knew about the existence of the condition in order to recover. For claims of pothole damage at Fort Bliss, this showing requires that the post Directorate of Public Works knew of the presence of the pothole, e.g., it had received a work order to fix the hole before the incident. There may also be third party liability where DPW issued the work request to a contractor and an incident occurs before repairs were made, since, under federal law, the United States is not liable for the alleged negligent acts or omissions of its contractors.

Other common claims involve POV damage from debris found on a post roadway or ejected from a military vehicle traveling either on or off post. With these type claims, the above pothole analysis does not apply. Instead, the claimant’s major hurdle is to show the damage occurred as a result of the negligent act or omission of an “in-scope” Army employee (Soldier or DA civilian) and there must be some evidence connecting the alleged POV damage to that person’s conduct. At a minimum, in “ejected debris” claims, the claimant must provide specific information identifying the military or government vehicle (license plate, description and type of vehicle, direction of traffic headed such as toward a military range, etc.) for Army claims personnel to conduct an investigation. In cases of discarded “military” items such as rounds found on a post roadway, the claimant will be expected to assist in identifying the source of the object as belonging to a post military unit. This showing is required, as the post is not liable for the acts of out of scope military personnel engaging in off duty sport, or for the acts of dependents, retirees or other non-military third parties.

The Office of the Staff Judge Advocate, Claims Division, processes claims filed against the Army for all premises liability incidents and motor vehicle accidents occurring within Fort Bliss and the El Paso area. The division will provide the administrative claim form (SF 95) to potential claimants. The form is also available at

Persons submitting an SF 95 form should carefully follow the instructions on the back of the form. This is important because the statute of limitations is not stopped or “tolled” unless the form is properly completed and filed. The Claims Division is located at Bldg. 113, first floor, Pershing Road. For more information, call 568-5846 or 568-6587.