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Under Texas law, who is liable for car accidents caused by road defects (pot holes, improper signage, etc.)?

Perhaps the most catastrophic road defect in recent memory was the 2007 I-35 bridge collapse in Minnesota, which killed 13 motorists and injured almost 150 more. In the aftermath of that tragedy, Minnesota ended up paying more than $37 million dollars in compensation to the victims and their families. While most accidents involving poorly maintained highways are not on the scale of the I-35 bridge disaster, it does not mean that they do not result in needless injury to unsuspecting motorists. However, the law regarding what the government is liable for is complex for non-lawyers, and even a bit tricky for less experienced lawyers.

The confusion arises from the fact that there are two separate, but somewhat related areas of law that apply to accidents caused by roadway conditions; The first relates to dangerous conditions that exist on a piece of property, even government property, while the second area deals with a duty owed by the government to ensure that signs and traffic signals are functioning and replaced when stolen or damaged.

This list of dangerous roadway conditions recognized under Texas law has been developed over years of court rulings and is not something that a person without legal training would be able to figure out on their own. That is why it is important to have an experienced car accident attorney, like those at Grossman Law Offices, examine your case to discover if you have an actionable claim against the government for dangerous roadway conditions, which led to your accident.

One other note, if the roadway defect can be traced to poor engineering, construction techniques, or materials, it may be possible to pursue a claim against the contractor who built the road. But in this article, we're going to explain when, under Texas law, the government (city, state, or county) is liable for an accident caused by a road defect.


Questions answered on this page:

  • Under Texas law, which roadway conditions give an injured motorist the legal grounds to pursue a claim and which do not?
  • What criteria must be met for a claim to be actionable?
  • What duties does the state owe as far as maintaining and replacing signs?
  • How can an experienced car accident attorney help you pursue a claim against the state when you have been injured by an accident caused by poorly maintained roadways.

What are considered bad roadway conditions?

There are a number of things that can cause hazardous driving conditions, including:

  • Potholes/Cracked Roads
  • Improper Drainage
  • Poor Road Design
  • Broken/Inadequate Guardrails
  • Narrow Roads/Shoulders
  • Gravel on a Roadway
  • No Reflective Paint
  • Depressions in the Roadway
  • Icy bridges and overpasses
  • Vegetation that obstructs the roadway

Under Texas Law these are not dangerous roadway conditions for which the state has any liability:

  • Legally parked cars
  • Barrel signs on the roadway
  • Uneven pavement where the difference is less than 2"
  • Roadways compromised due to issues with buried water mains
  • Any roadway issue on school property

If your particular situation isn't on one of those lists, it means that, most likely, that particular condition has not yet been litigated in Texas and there is no precedent. Even if there is no precedent, that does not mean that you do not have a valid claim. In fact, the only way to establish precedent is for a Texas court to rule on the issue. At Grossman Law Offices, we have been involved in a number of precedent establishing cases over the years. We're not scared away from helping an injured person pursue their claim, just because the law is silent on a particular issue.

The Elements of a Roadway Defect Case

When pursuing a case caused by a roadway defect, the case proceeds as a premises liability claim. This means that the plaintiff (in this case the injured motorist) has certain things that she must prove in order to win the case. These elements include:

  • The government could foresee the danger of a particular roadway hazard.
  • The government knew about the danger, but did not fix the hazard in a timely manner.
  • The government failed to warn the motorist of the hazard.
  • These failures contributed to the accident and resulting injuries.
  • The injured motorist had no way of anticipating the hazard.

In the first element, to determine foreseeability, the government is held to the reasonable person standard. In essence, the law asks, could a reasonable person have foreseen the danger of X? In this case, X would be the roadway hazard. A good example of this test are small bridges and overpasses on highways. A motorist can travel over such bridges without even noticing that they are on a bridge. We all know that in the winter these bridges can become especially treacherous when they ice over, therefore the government can also foresee the danger and that motorists might not be able to foresee it. As a result, almost every bridge and overpass has a sign warning of potential icing hazards, because if they didn't, and an accident ensued, the government could be held liable for those injuries.

The law also requires that the government have notice of the issue. "Notice" is a legal term of art that means that someone knows or should know something.

Imagine that an 18-wheeler is pulling a flatbed trailer, and on that flatbed trailer is a backhoe. The rear shovel of the backhoe is dragging behind the roadway, leaving a lunar landscape of potholes in its wake. If Bob rides on his motorcycle two minutes later and crashes when he rides into one of these potholes, it would be very difficult for him to argue that the state is at fault, since a two-minute window between the potholes forming and the accident did not give the state enough time to respond. In other words, the state did not have proper notice.

Suppose a period of time elapses and the state receives numerous complaints about giant motorcycle-eating potholes, but does nothing to affect repairs. Bill drives by on his motorcycle, crashes due to the potholes and is killed. Bill would have a very good claim against the state due to the roadway defect, because the government would have had notice in the form of complaints and elapsed time.

Returning to our icy bridge example and the warning signs placed near almost all bridges and overpasses, the government does this to warn motorists of the potential hazard. In most instances, if the government has given a motorist a warning, in the form of a sign, then the government has fulfilled its duty and has no liability. Even in the pothole example from above, if the government puts out a sign that says, "giant motorcycle-eating pothole ahead," then even if a motorcyclist did hit the pothole and sustain injuries, the government would not have any liability since they warned the motorist of the hazard.

Tweaking the pothole scenario just a bit can help illustrate the requirement that the motorist have no way of anticipating the hazard. Suppose our giant motorcycle-eating pothole is in Abilene. If you live in Abilene and drive past the motorcycle-eating pothole everyday on your commute, then even if there is no sign and the government does nothing to fill in the pothole, it would be difficult to pursue an injury claim if the pothole caused the accident, because you knew the pothole was there from driving past it everyday. However, if someone from Dallas was passing through, driving on that same stretch of road, it would be very unlikely that they could know about Abilene's giant motorcycle-eating pothole and if the pothole contributed to their accident, they would have grounds to pursue an injury claim.

The good news is that if you can prove all of these elements, you have a valid injury claim and the potential to hold the government accountable for a portion of your injuries. The bad news is that under the law, you can only recover injury and wrongful death damages, property damages are excluded and you cannot recover those. So even if a motorist wins their case, the costs of repairing their vehicle or purchasing a replacement are on the motorist, not the government.

How the Law Works When Signs Cause an Accident

According to case law, the only duty the government owes regarding traffic signage is a "duty to replace." This duty means that when a sign is damaged, stolen, or malfunctioning the government has a duty to restore the sign so that is conveys the information that it conveyed before the sign was damaged or stolen.

Unlike with the roadway conditions mentioned above, the government has to be given actual notice that a sign or signal is missing or not functioning properly. Whereas no one has to actually let the government know that a bridge is icy because of cold, wet conditions, since it is foreseeable that when it is cold and wet, there will be ice, even if the government hasn't performed maintenance on a traffic light for 30 years, they still have to be notified that the light is not working properly. For this reason if lightning strikes a traffic signal and it goes out, resulting in an accident that injures several people, the motorists would not have an injury claim against the government, because the government did not have notice that the sign was out.

Let's suppose that a bunch of people call the government up, giving them notice that the signal is out and that our previous accident doesn't occur right after the lightning strike, but the next day. Everyone would be able to pursue an injury claim in the scenario, right? The answer is probably not, because the "duty to replace" also means that the government must be given a reasonable amount of time after receiving notification to make repairs. If their were a lot of other signals and signs out because of a typically Texas-sized thunder storm, then it is possible that one day was not a reasonable amount of time to repair all of the signs and traffic signals. However, if instead of a typical Texas-size storm, knocking out lights and signs everywhere, that signal was the only sign or signal in Dallas that had been damaged. In that situation, one day might be a reasonable amount of time to expect the city to repair it and there's a chance that the injured people would have a claim.

Lastly, we can imagine that a month goes by and the traffic signal is still not working after the lightning strike and an accident occurs. The government has received thousands of phone calls, giving it plenty of notice about the broken light. In this case it is quite likely that those injured in the accident would be able to recover damages, because it is reasonable to expect that it should have been repaired faster than one month.

One exception to being able to recovery personal injury damages for poorly maintained and malfunctioning traffic signs and signals is if the damage is physically caused by the disrepair of the sign or signal. For instance, instead of being struck by lightning, suppose our traffic signal was just mounted to an old and rusty pole. One day, this pole falls on a motorist and kills them. One would think that the government would have been warned about the pole and had ample time to fix it, since metal takes time to rust, however this would be incorrect, since the duty to replace only extends to ensuring the traffic signal conveys the information that it was supposed to. Any damage that the sign itself causes is exempt from recovery.

Finally, as with other dangerous roadway conditions, motorists are only able to recover personal injury and wrongful death damages, not property damages.

How Can An Attorney Help?

Even by just looking through our examples, it should be fairly apparent that most people would benefit from the input of car accident attorney, either to save them the trouble of pursuing an unwinnable case, where the law just isn't on their side, or to help prove each of these elements in a case with a better chance of success. While some legal matters are the legal equivalent of an oil change, which anyone with just a bit of knowledge can do, accidents caused by poor roadways is more like trying to change your timing belt, which requires knowledge, experience and tools that the average person just doesn't possess.

We use cutting-edge technology, thorough investigative procedures and extensive contacts/experts to gather all evidence you will need to formulate an accurate, aggressive case and get you the money you deserve for things like medical bills, lost income, disability, loss of companionship, and even pain and suffering. So if you or a loved one have been hurt or worse in a car accident, call us toll-free at (855) 326-0000 and let us help get you back on the road to success.


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