June 25, 2018
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Close encounters of the crater kind: Can you sue a pothole?

Brian Swartz | BDN
Brian Swartz | BDN
Tire tracks mar a pothole developing on North High Street near its intersection with Hammond Street in Bangor.
By John Hamer, Special to the BDN

I was 10 years old when I first saw the science fiction film “Close Encounters of the Third Kind,” directed by Steven Spielberg. I even had the poster. It depicted a black ribbon of a two-lane highway leading into an area of bright light just over the horizon.

One of the more memorable scenes, at least for me, was of Richard Dreyfuss, playing a utility line worker, studying a map in his truck. As I remember, it’s dark. Suddenly, the crickets go quiet. Without warning, there are bright lights, and the truck begins rocking back and forth uncontrollably. Maps unfurl, the glove box falls open, spilling its contents all over the cab. Junk flies everywhere, and then it stops as suddenly as it started. Yet, the truck hasn’t moved.

I know how Dreyfuss’ character must have felt because just the other night, it happened to me, too. It was dark out, really dark. I decided to take the back road home to avoid some of the traffic that seems to get worse every day on my normal route.

A few miles from home, I pulled up to an intersection. Left blinker on. I checked both ways, not another car in sight. I hit the gas, and that was when it happened. The car started bucking and rocking uncontrollably. My briefcase fell over and papers flew everywhere, followed shortly after by thousands of goldfish crackers flying through the air from my daughter’s car seat in the back.

Choking on goldfish dust, I threw the car in park and dove out the door for fresh air. And I saw it. It was giant. Kind of saucer shaped. So big, it wasn’t possible to see to the center, but the edges were ragged and meant business.

Yes, I had a close encounter with a Maine pothole, and it had my tire firmly within its grasp. Just like Dreyfuss, I wasn’t going anywhere until it was ready to let me go.

The next day, after hitch-hiking to the office, I decided to find out what could be done. Legally speaking, municipalities are generally immune from suit over potholes under the Maine Tort Claims Act. Except as provided in four narrow exceptions, this statute shields government entities from tort claims seeking recovery of damages. None of those exceptions applied to my pothole.

I dug deeper and discovered that Title 23, section 3655, provides that 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 can sue a municipality or county, but not the state, for those damages if the person can prove that municipal officers (or road commissioner) had at least 24 hours actual notice of the defect or want of repair.

I figured there must be a catch, and there was. If the person harmed had notice of the condition of the street prior to the time of the injury, the person cannot recover unless he or she previously notified a municipal officer of the defective condition. However, it is insufficient to show that the municipal officers should reasonably have known about the defect. Only actual notice is good enough.

While this news did not directly help me, as the pothole defect had never been reported, I took solace from the fact that the very existence of the statute pointed to the undeniable conclusion that this must have happened to others as well. I was not alone.

Now, if only I could get my car out of the darn pothole.

John Hamer is a lawyer at Rudman Winchell in Bangor.


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