Last week, my car went over a pothole the size of a kiddie pool. The result wasn’t pretty: a flat tire and a trip to the tire store where I had to purchase a new tire –which wasn’t cheap. I’m not alone. According to the tire store, this was the busiest month in the store’s history – and this store has been around for as long as I can remember.
Everybody has seen them. The potholes are everywhere and they are only getting worse. Earlier this month, I wrote about potholes and how you can make a claim against the state for vehicle damage from potholes. However, instead of addressing this growing and damaging problem, two senators in Lansing want to grant blanket immunity to the State of Michigan and all municipalities for personal injury and property damage caused by potholes.
This week, the Senators Mike Kowall and Rick Jones introduced Senate Bill 733.
This bill seeks to grant immunity to cities and towns when a person is injured or property damage is caused by an unreasonable defect in the roadway – i.e. potholes.
To be fair, this is not the first time this type of immunity bill has been introduced. But the timing of this bill is absolutely incredible to me. Michigan motorists are spending literally tens of thousands of dollars in the aggregate on vehicle damage due to potholes and roadways that are in complete disrepair. It’s an ongoing problem with no end in sight.
So what does the Senate majority due in Lansing do – they introduce a bill to protect their insurance company friends.
In Michigan, you can’t sue a governmental entity except for a few exceptions. One of those exceptions is the highway exception, which allows a lawsuit for personal injury or property damage if the roadway is not in “reasonable repair so that it is reasonably safe and convenient for public travel.”
Senate Bill 733 seeks to change this. Not only will you have to prove “lack of reasonable repair,” but according to the bill’s language there would be an outright presumption the city or municipality has maintained the road in “reasonable repair.” This means the city wins unless you can rebut this presumption – not an easy task in today’s judicial climate.
To rebut this presumption, an injured person must prove either (1) a vertical discontinuity of 2 inches or more exists in the highway or (2) a dangerous condition in the highway itself of a particular character other than solely a vertical discontinuity.
Proving this is not easy. For example, many potholes are large but not deep. So if you hit a pothole that is 4 feet long, but only an inch-and-a-half deep, you’ll lose.
In addition, you have to prove the city or municipality knew, or reasonably should have known, this vertical discontinuity or dangerous condition existed for at least 30 days.
I just don’t understand the need for this Bill or any type of change to current law. The timing is awful and tone deaf. The current law already severely limits a person’s ability to sue a city or town for personal injury or property damage due to a highway defect. This state has much more pressing issues.
I encourage these two state Senators, and the rest of the Michigan legislature, to leave the current law in place so it can turn its attention to more important issues and problems.