As of August, Chicago's claims unit had received 168 claims regarding vehicle damage from potholes.
Takin' it to the streets
Who's on the line when residents start handling repairs? Who
As state and local governments struggle and to balance the cost of services against declining revenues, no program is immune from cuts. Potholes, cracked sidewalks, overgrown tree limbs, clogged catch basins — all public assets within the public right of way — are targets for frustrated residents who rarely have the experience or materials to perform maintenance that meet city, county, or state standards.
This poses two liability issues for public works operations: the safety of the residents performing the work, and the potential damage to vehicles or property owners harmed during the repair or as a result of the repair failing. In general, local governments can't be held responsible in either case unless they fail to repair an asset that employees had deemed a hazard.
In the former scenario, a resident is encroaching on public property.
“First of all, the material and equipment aren't owned by the city,” says John Ehrlich, deputy corporation counsel in Chicago's law department. “They're also not considered an intended and permitted user. Unless you're crossing at a crosswalk or are within immediate distance of a legally parked vehicle, you're not an intended and permitted user of the street according to state law. Even if the city had notice ahead of time that this work was being performed, the city would issue a cease-and-desist order.”
Creative litigants could argue that their services are a gift, but gifts must first be approved by the city council.
If a resident who decides to trim a tree located on a parkway drops a limb onto a parked car, damaging the windshield, an insurance claims investigator and Chicago DOT employee investigate the claim. “I would deny that claim,” says Chicago Claims Manager Don Morris, adding that the victim could seek restitution from the resident who performed the work.
States typically base traffic laws on the Federal Highway Administration's Manual on Uniform Traffic Control Devices, which gives the owner exclusive operational and jurisdictional control over a road. “Because the community members who made repairs are not public employees, they fall outside state immunity statutes,” says Dave Parker, risk manager for the Pima County Sheriff's Office in Tucson, Ariz., and former risk manager for the Arizona DOT.
“However, volunteer protection laws could apply in some jurisdictions, potentially making the entity liable,” adds Parker, who also serves on the board of the Public Risk Management Association.
The Federal Volunteer Protection Act of 1997 defines a volunteer as “an individual performing services for a nonprofit organization or governmental entity who does not receive compensation (other than reasonable reimbursement for expenses) or any other thing of value in lieu of compensation in excess of $500/year.”
Each state defines “volunteer” differently, so each state has its own standard for immunity. The law does, however, state that the resident must be certified or authorized, and must have established responsibilities to receive qualified immunity in the event of injury to others as a result of work performed as a volunteer.
Like Parker, Chicago's Morris is unfamiliar with any claims in which a resident has argued volunteer status. The city issues short-term insurance policies for volunteers, such as interns and seasonal employees, who've been contracted by the city.
“Still, if a resident is construed to be a volunteer under federal law or under a stricter state law, it is possible that the resident could be protected from a lawsuit when performing the work,” Parker adds. “And the entity could ultimately be liable as the result of problems arising from that resident's actions.”