As Spring approaches, I often get asked whether people can sue their town over potholes. This question comes from clients, friends, and family, sometimes in a half-joking, half-serious manner.
Legally speaking, municipalities are generally immune from lawsuits over potholes under the Maine Tort Claims Act, 14 M.R.S.A. § 8101, et seq. This statute shields all government entities from any tort claims seeking recovery of damages, with four narrow exceptions:
Ownership, maintenance, or use of vehicles, machinery, and equipment
Public buildings
Discharge of pollutants
Road construction, street cleaning, or repair
While the fourth exception—road construction, street cleaning, or repair—seems promising, it only covers situations where a municipality is actively working on roads, not for general lack of repair.
However, the local highway law, 23 M.R.S.A., Part 3, can provide relief in some situations. Under 23 M.R.S.A. § 3655, a person who is injured or suffers property damage due to a street defect or lack of repair where the municipality has a legal obligation to maintain the street can sue the municipality (or county) for those damages.
If the State is responsible for maintaining the road rather than the municipality, § 3655 does not provide a remedy. See Hodgdon v. State, 500 A.2d 621 (Me. 1985). To recover, the person must prove that municipal officers (or road commissioner) had at least 24 hours’ actual notice of the defect or lack of repair. However, if the person harmed had prior notice of the street’s condition before the injury, they cannot recover from the town unless they previously notified a municipal officer of the defective condition.
It’s insufficient to show that the municipal officers should reasonably have known about the defect—they must have had actual notice, which can be difficult to prove. On the other hand, a person harmed needs only to have “notice” of a defect before an injury—not actual notice—to trigger the requirement to notify a municipal official of the defect to recover. Therefore, a town could defend a claim by arguing that the person drives the same route every day and should reasonably have known about the defect. Since most
people do not make complaints to municipal officers about specific potholes, § 3655 provides only a very limited remedy.
Disclaimer: This article is for informational purposes only and may not reflect the most current legal developments. For up-to-date advice and legal representation, please consult a qualified attorney.
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As Spring approaches, I often get asked whether people can sue their town over potholes. This question comes from clients, friends, and family, sometimes in a half-joking, half-serious manner.
If the State is responsible for maintaining the road rather than the municipality, § 3655 does not provide a remedy. See Hodgdon v. State, 500 A.2d 621 (Me. 1985). To recover, the person must prove that municipal officers (or road commissioner) had at least 24 hours’ actual notice of the defect or lack of repair. However, if the person harmed had prior notice of the street’s condition before the injury, they cannot recover from the town unless they previously notified a municipal officer of the defective condition.
