Fort Bliss Monitor

Post liability explained for damage to POVs from potholes, road

Jefferey J. Tasher
Claims Division

Recently there has been an increase in claims filed with the post Claims Division, Office of the Staff Judge Advocate, for damage to privately owned vehicles from driving over potholes or other road conditions.

To better understand this subject, some essential background on the law of premises liability is helpful. 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, you were asked by the local government authority to fill out some type of claim form, submit it within a certain time frame, and then wait for a reply. Was your claim allowed or was it denied? In many cases, the claim will be denied, with the local authority citing some state law or statute that makes them not liable under the facts of your case. 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.

Where 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 Congress enacted. For a military member seeking to recover for property damage, the statute is known as the Military Claims Act. For civilians recovering for either property damage or personal injury, their remedy is under the Federal Tort Claims Act. Claims by military members for personal injury suffered while serving are normally not allowed under longstanding decisions by the United States Supreme Court.

Claims for damage to POV’s from driving over potholes on post frequently 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 an on-duty U.S. Army employee (Soldier or civilian), which act or omission resulted in damage to the claimant. This “on-duty” factor is known as the “scope of employment” requirement, similar to a “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 U.S. Army.

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

You probably have heard about lawsuits against landowners for defects on their premises, where the owner claimed the injured person was “only a trespasser” and so he or she was not entitled to recover any damages. In Texas, there are three categories of premises liability claimants, one of whom 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 normally consists of persons 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 he is liable even for unknown defects where a reasonable search of the premises would have disclosed the hazard. 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. Licensees typically include social guests or persons entering the property with the owner’s permission but not for any business reasons.

In Texas, where 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 further guidelines for determining what is, or is not, a special defect. Basically, Texas courts require that the pothole “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. No litmus test may be offered in this regard; one may say only for purposes here that the larger the hole is, the more likely it will be found to be a special defect. Once a finding is made of a special defect, the claimant acquires the status of an Invitee and notice of the condition is by law attributed to the governmental unit. Absent some other defense, such as the claimant himself was also negligent in not seeing the hole or speeding in his vehicle (known in the law as “contributory negligence”), recovery is allowed and the claimant will be paid his or her reasonable damages.

On the other hand, where the pothole is not sufficiently large 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 Department of Public Works and Logistics 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 DPWL 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 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 types of claims, the above pothole analysis is not applicable. 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 as above defined. In other words, there must be some evidence connecting the alleged POV damage to an in-scope negligent Soldier or Army civilian employee. 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) in order for Army claims personnel to conduct an investigation to verify the scope of employment and negligence issues. 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, Bldg. 113, processes claims for damage or injury involving pothole incidents occurring on post roadways or other types of POV damage described above. This Claims Division provides the administrative claim form (SF 95) to persons seeking to file such claims. You may also obtain the SF 95 at www.usdoj.gov/civil/forms/sf95.pdf.

A person submitting a SF 95 claim should carefully follow the instructions on the back of the form before submitting it. This is important because the statute of limitations is not stopped or “tolled” unless the form is correctly completed and filed. In cases involving property damage to POV’s, the claimant will be asked to submit with his SF 95 claim packet a copy of the vehicle title or registration, the Military Police or civilian police report and written damage estimates from reputable auto repair shops.

Where a person has sustained damage or loss attributable to an encounter with a pothole on a Fort Bliss roadway, the mere showing that he or she drove over a pothole with his or her POV and sustained damage will not by itself make the claim payable. Rather, the claimant will need to satisfy the specific criteria as outlined above in order to recover on his or her claim.

For more information, call 568-5650 or 568-7141.



www.bliss.army.mil	Published for the Fort Bliss/El Paso, Texas Community	Aug.3, 2006

	Post liability explained for damage to POVs from potholes, road Jefferey J. Tasher Claims Division Recently there has been an increase in claims filed with the post Claims Division, Office of the Staff Judge Advocate, for damage to privately owned vehicles from driving over potholes or other road conditions. To better understand this subject, some essential background on the law of premises liability is helpful. 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, you were asked by the local government authority to fill out some type of claim form, submit it within a certain time frame, and then wait for a reply. Was your claim allowed or was it denied? In many cases, the claim will be denied, with the local authority citing some state law or statute that makes them not liable under the facts of your case. 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. Where 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 Congress enacted. For a military member seeking to recover for property damage, the statute is known as the Military Claims Act. For civilians recovering for either property damage or personal injury, their remedy is under the Federal Tort Claims Act. Claims by military members for personal injury suffered while serving are normally not allowed under longstanding decisions by the United States Supreme Court. Claims for damage to POV’s from driving over potholes on post frequently 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 an on-duty U.S. Army employee (Soldier or civilian), which act or omission resulted in damage to the claimant. This “on-duty” factor is known as the “scope of employment” requirement, similar to a “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 U.S. Army. The next step of this “liability for potholes” analysis, whether the claim is pursued under the MCA or FTCA, is to apply the premises liability law of the State of Texas. Usually, it is this step of the analysis where the claimant cannot meet his or her relatively high burden of proof, as the laws in this area have been written to shield governmental units from liability to the greatest extent possible. You probably have heard about lawsuits against landowners for defects on their premises, where the owner claimed the injured person was “only a trespasser” and so he or she was not entitled to recover any damages. In Texas, there are three categories of premises liability claimants, one of whom 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 normally consists of persons 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 he is liable even for unknown defects where a reasonable search of the premises would have disclosed the hazard. 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. Licensees typically include social guests or persons entering the property with the owner’s permission but not for any business reasons. In Texas, where 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 further guidelines for determining what is, or is not, a special defect. Basically, Texas courts require that the pothole “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. No litmus test may be offered in this regard; one may say only for purposes here that the larger the hole is, the more likely it will be found to be a special defect. Once a finding is made of a special defect, the claimant acquires the status of an Invitee and notice of the condition is by law attributed to the governmental unit. Absent some other defense, such as the claimant himself was also negligent in not seeing the hole or speeding in his vehicle (known in the law as “contributory negligence”), recovery is allowed and the claimant will be paid his or her reasonable damages. On the other hand, where the pothole is not sufficiently large 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 Department of Public Works and Logistics 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 DPWL 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 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 types of claims, the above pothole analysis is not applicable. 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 as above defined. In other words, there must be some evidence connecting the alleged POV damage to an in-scope negligent Soldier or Army civilian employee. 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) in order for Army claims personnel to conduct an investigation to verify the scope of employment and negligence issues. 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, Bldg. 113, processes claims for damage or injury involving pothole incidents occurring on post roadways or other types of POV damage described above. This Claims Division provides the administrative claim form (SF 95) to persons seeking to file such claims. You may also obtain the SF 95 at www.usdoj.gov/civil/forms/sf95.pdf. A person submitting a SF 95 claim should carefully follow the instructions on the back of the form before submitting it. This is important because the statute of limitations is not stopped or “tolled” unless the form is correctly completed and filed. In cases involving property damage to POV’s, the claimant will be asked to submit with his SF 95 claim packet a copy of the vehicle title or registration, the Military Police or civilian police report and written damage estimates from reputable auto repair shops. Where a person has sustained damage or loss attributable to an encounter with a pothole on a Fort Bliss roadway, the mere showing that he or she drove over a pothole with his or her POV and sustained damage will not by itself make the claim payable. Rather, the claimant will need to satisfy the specific criteria as outlined above in order to recover on his or her claim. For more information, call 568-5650 or 568-7141.