What’s a “POTHOLE” Worth to the City? About a Million Bucks – Crabtree v. City of Columbus By Steven Magas, The Bike Lawyer
Cyclists won a very important battle recently. On November 1, 2011, the Tenth Appellate District decided the case of Crabtree v. City of Columbus – holding that the City of Columbus could be liable for failing to keep streets in good repair… for cycling…
Justin Crabtree was riding his bicycle on Williams Road in Columbus, Ohio on January 4, 2006. He was riding with a friend, Terry Blake. They were riding up an incline near Groveport Road and, after passing under an overpass near Groveport Road when a car, driven by Andre Cook, came from behind the two riders. Mr. Cook passed Terry but hit Justin.
Justin suffered serious injuries and was rendered a quadriplegic. Justin’s lawyer took a very unique approach in this case. He sued the motorist – that’s a no brainer – and the claim against the motorist was resolved. Probably quickly – and probably for the policy limits. But Justin then took on City Hall – he sued the City of Columbus, claiming that the City was negligent in failing to keep the roads in repair and in failing to “remove obstructions from public roads” as required by Ohio Revised Code Section 2744.02(B).
So… just what were the “obstructions” which were not removed from road which contributed to this crash? In a word – POTHOLES.
There were several accounts of the crash in the court record – including two from Terry Blake. Terry was interviewed by an officer following the crash and was also deposed by the City’s lawyers during the lawsuit. He told the officer that they were riding to the right with Justin riding ahead and, when Cook passed at 55-60 mph, he yelled to Justin who turned his head to the right. His bike also went to the right and he was hit by the car.
Later in his deposition, Terry said the two riders had their path impeded by damp, muddy areas and overhanging vegetation. The road was very narrow and potholes were present which impeded their progress. Terry also said he had ridden this route many times and had noticed over the course of a full year that the potholes were allowed to grow and get worse over time – with big, deep potholes under the overpass.
Another independent witness also saw the crash. He was coming the opposite way. He said that Justin was riding near the center of the lane and Terry was riding close to the curb. The witness passed the two riders and saw the crash in his rear view mirror, describing the speeding car passing Terry. He saw Justin turn hard to the right, towards the curb, and then get smacked by Mr. Cook’s car.
Critically, the witness said that Justin had to swerve towards the center of the lane to go around the potholes under the bridge. At the time of impact, the witness said Justin’s rear wheel was “about three and a half feet from the right hand curb.” He also said that mud had accumulated along the curb – and extended out 12 to 14 inches into the lane.
The Court of Appeals Decision
OK… so Justin was hit by a passing, speeding car… sure you can sue the motorist, but how can the CITY be liable?
It is very difficult to sue the city/state and win. Ohio legislators have chosen to write in all kinds of defenses and immunities – which protect cities from liability for doing the type of stupid, careless, negligent things that the rest of us can be sued for.
Here, the City of Columbus argued it was “immune” from liability under Ohio law. The law, in general, charges municipalities with the “care, supervision and control” of public streets. While the City can be liable for failing to keep streets in good repair, that liability can only occur if the elements “are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads”
Prior to 2003, the immunity statute said the City could be liable for failing to keep the roads “free from nuisance.” That language was replaced with “remove obstructions.”
The City argued here that there were no “obstructions,” and argued that, historically, courts have viewed “potholes” as “nuisances,” not “obstructions.” The trial court bought this argument and found that by removing the word “nuisance” the legislature intended to remove liability for “potholes.”
The court of appeals, however, didn’t buy what the city was selling. The court reviewed all the pre-2003 “pothole” cases and agreed that potholes were described as a “nuisance” under the prior law. However, the court wisely noted that “nuisance” was the ONLY category available to courts under the old law – the only descriptive term in the statute.
Prior to the 2003 changes courts clearly pigeon-holed pothole cases into the “nuisance” slot because that was the only slot available. Under the current law, the “obstruction” slot is brand new – and this court found that “potholes” fit right into this new slot!
The court of appeals also looked at the statute from the broader view that roads are not just made for cars and trucks and busses. The court said that the extent to which something might be a hindrance or obstruction may vary depending on the location, circumstances and “…the nature of the road-user encountering it…”
Specifically, the court said that potholes, overhanging vegetation or the presence of a strip of mud along the curb “… might constitute obstructions for purposes of the bicyclists in this case who are, without question, lawful users of the road…”
After the appellate ruling the City of Columbus filed a brief urging the Ohio Supreme Court to hear an appeal of this case. Crabtree’s lawyers fought this and the Court ultimately declined jurisdiction. The Ohio high court only hears the cases it chooses to hear. Given the VERY “anti-plaintiff” make-up of our current court, I was, quite frankly, very happy they chose to NOT take this case.
After the case was returned to the trial court’s docket, the two sides got together to try to resolve it. On the plaintiff’s side, they could win, but they could also lose entirely. If they won, they were likely to get a big number, but it would be very difficult to convince a jury of county residents that the City ought to pay big money in the case.
On the other side, the City had to recognize that a “grand slam” for the plaintiffs here could be huge – possibly an 8-figure award.
In the end the parties reached a solid, amicable settlement an the City of Columbus agreed to pay Mr. Crabtree $1,250,000.00 as full and final settlement. Serious money, to be sure, but a drop in the bucket for a fellow who is paralyzed for life… nonetheless, the offer made it worthwhile for Mr. Crabtree to resolve the litigation and not take the risk of walking out after trial with zero…
Plaintiff’s counsel, John Alton, did a marvelous steering this complex case through the court system and obtaining a marvelous result for his client.
Good Luck & Good Riding!
Steve Magas, The Bike Lawyer