Damage caused by a pothole: who is liable?

If you drive your car through a pothole, you risk damage to the wheel and axle. In the event of damage, the question arises whether the public body responsible for maintenance must pay for the repair.

The most important facts in brief

  • Depending on the type of road, the local authority, the state or the federal government is responsible for road maintenance.
  • Anyone who wants to hold the building owner liable due to pothole damage must prove that the owner has violated his duty to ensure traffic safety.

When to expect potholes particularly frequently?

There is a high risk of damage to the car due to potholes, especially at the end of the winter season, when the asphalt can become brittle due to the interaction of frost, moisture and road salt. The resulting cracks allow further water to penetrate, which at temperatures below freezing can cause the road surface, which has already become unstable, to crack open. Within a short period of time, the notorious potholes are caused by the stress of road traffic.

In the case of concrete road surfaces, summer heat can also lead to dangerous potholes, because concrete can burst open at high temperatures. Particularly on highways, where concrete is often used as a base material under the asphalt, such road damage can pose a risk of damage and accidents for motorists.

What damage motorists risk when driving through potholes?

The extent of the damage depends on both the depth of the pothole and the speed at which it is made. The faster the car is traveling, the higher the risk of damage. Axles, bearings and rims can be particularly badly affected.

If the pothole is so deep that the car sits on it, further damage can occur, for example to the oil pan or the underbody of the vehicle.

Damage caused by potholes: What is the legal situation??

First of all, it is the so-called owner of the road that is responsible for the perfect condition of the roads. The law regulates who is responsible for which roads:

  • Roads within built-up areas are usually the responsibility of the local authority as municipal roads.
  • For rural and district roads, the district is usually responsible.
  • In the case of interurban roads and highways, the federal or state governments take care of maintenance and repair.

As part of their duty to ensure road safety, the responsible authorities must ensure that potholes are either repaired quickly or the damaged area is made safe – for example, in the form of warning signs or speed limits.

Double burden of proof for motorists

Anyone who wants to hold the road authority liable after damage caused by a pothole must provide two forms of evidence:

  1. that the damage resulted from driving over the pothole, and
  2. that the road owner has violated his duty to maintain road safety.

The best way for drivers to prove that the pothole caused the damage is to document the damage directly at the scene of the accident. So it makes sense to take a photo of the pothole. To record its size, it is advisable to place an object with standardized dimensions, such as a parking disc, next to it when taking the picture. Afterwards, the vehicle owner should visit a vehicle workshop as soon as possible to assess the extent of the damage.

It is more difficult to prove fault on the part of the road authority. As a general rule, drivers must drive carefully enough to bring their vehicles to a halt in good time if they detect an obstacle. In addition, the driver would have to prove that the road owner had not taken care of the maintenance of the road for a longer period of time. In the case of freshly formed potholes, a municipality is usually not liable if it regularly checks the condition of its roads.

What has been the verdict of the courts in the case of pothole damage so far??

The results of case law depend heavily on the individual circumstances of each case.

The Halle Regional Court ruled in favor of a driver who had hit a pothole at a speed of 120 km/h on the highway. The responsible federal state had to compensate for the resulting damage because the road traffic authority had not erected a warning sign. In doing so, the judges ruled, the company had violated its duty to ensure road safety.

On the other hand, a Berlin vehicle owner whose car was damaged by a pothole did not receive any compensation. The city was able to prove before the Berlin Court of Appeal that it had regularly checked the roads. Thus, the pothole could have occurred at short notice – and consequently, there was no airtight proof of liability on the part of the city.

Tip: Who has a traffic legal protection insurance, a process can risk, if the insurance gives a cover promise. Otherwise, motorists should bear in mind that in the event of a negative ruling for them, they must bear not only their own legal costs, but also the court costs and the legal costs of the opponent in the case.

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