By: Rudman Winchell Attorney John Hamer

I know Spring is coming when people begin asking me about whether they can sue their town over potholes. Sometimes the question comes from clients, other times from friends and family in a half-joking (and half very serious) manner.

Legally speaking, municipalities are generally immune from suit over pot holes under the Maine Tort Claims Act, 14 M.R.S.A. § 8101, et seq. Except as provided in four narrow exceptions, this statute shields all government entities from any and all tort claims seeking recovery of damages.

The four exceptions are for claims property damage, bodily injury or death for a government’s negligent acts or omissions involving: (1) ownership, maintenance or use of vehicles, machinery and equipment; (2) public buildings; (3) discharge of pollutants; and (4) road construction, street cleaning or repair. While the fourth exception – road construction, street cleaning or repair- appears promising, it only covers situations where a municipality is active working on roads, not for general lack of repair.

Nevertheless, 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 because of a street defect or lack of repair where the municipality has a legal obligation to maintain the street is authorized to 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 Hodgon v. State, 500 A.2d 621 (Me. 1985). In order to recover, the person must be able to prove that municipal officers (or road commissioner) had at least 24 hours’ actual notice of the defect or want of repair. However, if the person harmed had notice of the condition of the street prior to the time of the injury, he or she cannot recover from a town unless that person previously notified one of the municipal officers of the defective condition.

It is insufficient to show that the municipal officers should reasonably have known about the defect- the officers must have had actually notice, which can be difficult to prove. On the other hand, a person harmed need only have “notice” of a defect prior to an injury- not actual notice- in order to trigger the need for the person to have notified a municipal official of the defective condition in order to recover. Therefore, a Town could defend a claim by simply arguing that the person drives the same route everyday and therefore 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.


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