Traffic Q&A: Does driver get a pass if he swerves to miss a pothole and hits another car?

Staff writerApril 6, 2014 

Question: Recently I had a close call one evening after dark set in. An oncoming vehicle tried to swerve around a large pothole and came very close to hitting me head on.

Certainly the driver of that vehicle is responsible for their actions while driving. However, would the state or whoever is responsible for maintaining that road have any liability should an accident result because someone tried to avoid an extremely dangerous pothole? — Steve, University Place

Answer: Could be. Washington law requires that the state and municipalities maintain roadways so they’re reasonably safe for ordinary travel. The law doesn’t demand perfect roads, but the Washington Supreme Court has stated that there is a duty to eliminate dangerous conditions.

According to Paul Landry, a Tacoma attorney who specializes in criminal defense and personal injury cases, there’s no “bright line” standard — such as when a pothole reaches a certain size — for determining whether the state has lived up to its duty.

Instead, Landry said, the courts view roadway maintenance issues on a case-by-case basis.

“The more dangerous the hazard, the greater the state’s duty to eliminate it,” Landry said. “ ‘Potzilla’ should get more attention than your average little divot.”

If the court finds there is a duty to repair, he said, the next question is whether that duty was breached.

“Again, a number of different considerations come into play,” Landry said. “How dangerous was the hazard? Did state employees have actual notice of the hazard? If not, had the hazard existed for a long enough period that the state should have known about it? Did the state have a reasonable opportunity to fix the hazard after it developed? Was the hazard obvious to drivers?”

It’s this “totality of the circumstances” analysis that determines liability on the part of the state.

“The actions of the other driver are a separate question,” Landry said, “but if he or she acted in a careless or reckless manner, the state’s neglect may not matter.”

“All these questions would be considered by a judge, who, after reviewing the case, could either dismiss a claim against the state or let it proceed to a jury.”

Rob Carson: 253-597-8693;

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