By Jordan W. Charness
I’m sure you’ll all be pleased to know that while the federal government fell in a non-confidence motion and another election looms on the horizon, the city of Montréal declared its war on potholes to be over for the year. I find this to be a curious thing, since just today I’ve noticed about 15 potholes in various states of undress. They range from the tiny bounce-your-head-back sized right up to the swallow-my-car variety.
If this is how the war on potholes ends, it looks like the potholes won!
Actually, there seems to be a never-ending war on potholes in Canada. A quick survey of news media cross the country tells me that there seems to be no city in Canada that is immune to potholes. By now we’ve all been told the potholes just happen as a natural result of melting snow somehow getting under the asphalt and expanding causing it to bust a gut. Yet, somehow it always seems to come as a big surprise whenever we see another one.
Potholes wouldn’t be so bad if it wasn’t for the fact that they cause all kinds of damage to our vehicles. In the old days, when cars were built of a sturdier nature, the most a pothole would do would be to send hubcaps tearing across the road like low-level flying saucers. There used to be whole storefronts dedicated to selling used hubcaps since most hubcaps were car specific.
Nowadays the fancy wheels no longer have coverings at all but are simply mags that don’t fly off when you hit a pothole. Instead they dent and become unusable at a cost of 10 times what a hubcap used to cost.
Your undercarriage and suspension system are also likely to lose in any battle against a large pothole. And your tires, of course, have a great chance of becoming flat, useless pieces of rubber when slamming into even a medium-sized pothole.
There is a general principle in law that people are responsible for damage caused by things under their control. This would normally mean municipalities or governments that are responsible for the road system would be responsible if their roads damaged parts of your car.
You might even think that as Canadians, we have a right to expect that our governments provide us with pothole-free roads as part of services that our taxes go for. Yet it seems to be a big surprise every Spring when potholes pop up like popcorn and the roads never seem to get fixed well enough to last throughout an entire year.
So, can you sue your local road-providing government for damage to your car caused by potholes? Well, maybe.
Although the general legal principle would be that you should be able to sue, many levels of government in many provinces have passed special laws either prohibiting you from suing them for pothole damage or else severely limiting what you can sue them for. For the most part, judges have been hesitant to strictly apply these laws, and almost bend over backwards to help litigants who actually sue the city or province to find a loophole to allow them to succeed.
But even if the law in your area does allow you to successfully sue for pothole damage the chances are that there are lot of strict rules and regulations surrounding this law that may make it difficult for you to prove your case and hold the government responsible.
To make matters worse your insurance company will virtually never pay for pothole damage since it is not strictly considered a collision. Some insurance policies do allow it but you’ll probably be paying a hefty premium for the privilege.
I guess the best thing that you can do during the Spring pothole attack is to slow down and enjoy the warm, sunny weather headed our way, and keep an ever-vigilant eye out for the silent terrors of the road known as potholes.