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  1. #1
    Ian Donaldson is offline Junior Member
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    Pothole Damage: Do I have a case?

    What is the name of your state? Minnesota

    My wife hit two large unmarked potholes while entering a parking lot of a place of business. The resulting damage cost approx. $1100. We've contacted the company that owns the property and submitted pictures of the holes, a statement/receipt from the towing company and a receipt from the auto garage. We were told they were going to send them to their insurance company and that the insurance company would contact us.

    Two weeks had passed without contact from neither the insurance nor the company that owns the property so we decide to call them back, and after a few days we receive a call from the property owning company: According to them the insurance company rejected the claim; it was stated that the insurance co feels that the potholes couldn't have caused that much damage and the car was too old to be worth those repairs.

    1. the potholes are both huge and deep, one of them being over 2 feet wide and several inches, as much as 6 inches deep

    2. the car is a 1999 Chevy Malibu, and was in excellent condition

    According to the company, JB Realty Co., they feel bad and are willing to cut us a check for "a couple of hundred dollars". To me this says they recognize their culpability in both neglecting their parking lot and failing to mark the hazardous area. It should also be noted that there were other potholes in the lot that were marked with paint for maintenance; these weren't among those marked.

    One thing that I'm suspicious of is if they ever even contacted their insurance company, never mind submitting my evidence to them.

    So on to the big question: Do I have a case against them? I told them I would accept $550 if they were willing to settle today (to prevent further delay), otherwise I would be filing a case with the small claims court for the full amount, $1100.

    I've been trying to research this matter and I can't for the life of me find any state statutes indicating whether I have a case worth pursuing or not.
    Last edited by Ian Donaldson; 05-25-2006 at 04:28 PM.
  2. #2
    You Are Guilty is offline Senior Member
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    If they're willing to pay anything, I'd jump at it. The reason? Google "open and obvious hazard".
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.
  3. #3
    Ian Donaldson is offline Junior Member
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    I understand how "large gaping pothole" smacks of "open and obvious hazard", but this was actually at the entrance of the lot; a narrow area that became much less open and obvious considering my wife also had sun glare and an on-coming car to watch for while turning into the lot.

    http://snaplocally.com/holes/images/entrance.jpg <-- image of the site

    I added the cones to the site to show how immense the holes are and to show how such a simple precaution could've been taken to avoid a situation like this altogether.
  4. #4
    You Are Guilty is offline Senior Member
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    There's the rub. While a property owner has a duty to maintain their premises in a reasonably safe condition, visitors have a duty to not drive into large, gaping potholes, sun-glare or not. The fact that they are so huge actually works against you - were they less visible, there goes the landowner's defense.

    Then again, in small claims, the actual law only seems to apply a portion of the time so if you're feeling lucky, take your chances there and roll the dice.
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.
  5. #5
    loveumms is offline Member
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    If they offered any money take it since potholes are a hazard of driving. Living in a major city, my car takes a lot of damage from pot holes - I watch out for them and try to avoid them but, the city certainly isn't going to pay for my car damage after driving over one, whether I see it or not. Get my drift?
  6. #6
    xylene is offline Senior Member
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    Quote Originally Posted by loveumms
    If they offered any money take it since potholes are a hazard of driving. Living in a major city, my car takes a lot of damage from pot holes - I watch out for them and try to avoid them but, the city certainly isn't going to pay for my car damage after driving over one, whether I see it or not. Get my drift?
    Generally speaking the city has immunity... The oil companies only buy the politicians. They aren't the government yet.
  7. #7
    justalayman is offline Senior Member
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    Were you entering the parking lot to patronize the business that owns the lot?

    If not, what were you doing in that parking lot?
  8. #8
    BelizeBreeze is offline Senior Member
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    Quote Originally Posted by You Are Guilty
    There's the rub. While a property owner has a duty to maintain their premises in a reasonably safe condition, visitors have a duty to not drive into large, gaping potholes, sun-glare or not. .
    YAG, you have obviously NEVER driving in Chicago.

    It' s not a city, it's a hugh pothole
  9. #9
    You Are Guilty is offline Senior Member
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    [dundee]"That's not a pothole. Now this is a pothole!"[/dundee]
    [url]http://1077sfr.com/images/funnypics/car_in_pothole.jpg[/url]
    (No 'notice' problem with that one!)
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.
  10. #10
    Ian Donaldson is offline Junior Member
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    lovebumms- Your "drift" is that you'd bend over and take it like a Greek. Here's a tip: the next time you're dispensing "advice" make sure your premise is relevant to the conclusion. I specified that I was in a lot owned by a private company, not on city property, and yes, there are documented cases where cities have paid on cases of cars damaged by potholes.

    YAG- Your advice would have gotten me $200 instead of the $550 I asked for. I didn't arbitrarily choose $550; it's slightly more than 50% of the total, the amount I feel they are responsible. As of an hour ago they have agreed to pay it.

    justadouchebag- I see you've amassed quite a few post here. You must be the resident troll that enjoys asking stupid questions. Well, your day is complete now.
  11. #11
    xylene is offline Senior Member
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    Quote Originally Posted by Ian Donaldson
    As of an hour ago they have agreed to pay it.
    Sniff, sniff....
  12. #12
    You Are Guilty is offline Senior Member
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    You know, just because someone pays on a claim in no way indicates that they "had" (were legally responsible) to do so. More often than not, with such small amounts, it's just not worth the time to litigate it, even with a rock solid defense. Lord knows the number of cases I've had where I'll twist the arm of a client to pay nuisance value on a good case. It's just good business sense.

    Having said that, take the $550 and run. And pay close attention to the language of the release they send you before signing.
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.
  13. #13
    Ian Donaldson is offline Junior Member
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    Quote Originally Posted by You Are Guilty
    You know, just because someone pays on a claim in no way indicates that they "had" (were legally responsible) to do so.
    Tell me this: I have reason to believe they hadn't even submitted my claim to their insurance company. When they talked to my wife earlier this afternoon they first tried to talk her into accepting $400 which she rejected, and proceeded to asked them for their insurance information. They denied her, citing they were no obligation to do so, and proceeded to offer her the $550 which I had originally asked for.

    Q: Can they legally deny someone's request for this information, and if I'm correct in my assumption, did they violate any law by not submitting my claim? Of course there's a chance that I'm wrong, but I suspect two things:

    1. they wanted to play "the waiting game"; make me wait until my window of opportunity for filing a court case had expired

    2. that they withheld their information because not only did they not file my claim, but they did so because they don't want their premium to increase


    Having said that, take the $550 and run. And pay close attention to the language of the release they send you before signing.
    Such as?
  14. #14
    justalayman is offline Senior Member
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    Quote Originally Posted by Ian Donaldson
    lovebumms- Your "drift" is that you'd bend over and take it like a Greek. Here's a tip: the next time you're dispensing "advice" make sure your premise is relevant to the conclusion. I specified that I was in a lot owned by a private company, not on city property, and yes, there are documented cases where cities have paid on cases of cars damaged by potholes.

    YAG- Your advice would have gotten me $200 instead of the $550 I asked for. I didn't arbitrarily choose $550; it's slightly more than 50% of the total, the amount I feel they are responsible. As of an hour ago they have agreed to pay it.

    justadouchebag- I see you've amassed quite a few post here. You must be the resident troll that enjoys asking stupid questions. Well, your day is complete now.

    The question was pertinent to the situation. If you were trespassing, they didn't have to give you squat. You see, the only duty the have is to not intentioanlly harm you. Unless you can show that they went and dug the hole just so you could damage your car, you would lose if it went to court. So unless you had a legit reason for driving in the lot, you have no claim.

    O f course you are wrong D A. They do not have to submit it to their insurance company nor are they required to tell you who insures them.

    It is the owner you have the claim against, not the insurance company, D A.

    Have fun with your POS car. If they didn't feel it is worth spending the $1100 to fix it, it must be a real gem. Enjoy.
    Last edited by m martin; 05-26-2006 at 09:33 AM.
  15. #15
    BelizeBreeze is offline Senior Member
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    Quote Originally Posted by Ian Donaldson
    Tell me this: I have reason to believe they hadn't even submitted my claim to their insurance company. When they talked to my wife earlier this afternoon they first tried to talk her into accepting $400 which she rejected, and proceeded to asked them for their insurance information. They denied her, citing they were no obligation to do so, and proceeded to offer her the $550 which I had originally asked for.

    Q: Can they legally deny someone's request for this information, and if I'm correct in my assumption, did they violate any law by not submitting my claim? Of course there's a chance that I'm wrong, but I suspect two things:

    1. they wanted to play "the waiting game"; make me wait until my window of opportunity for filing a court case had expired

    2. that they withheld their information because not only did they not file my claim, but they did so because they don't want their premium to increase




    Such as?
    All of this is irrelevant.

    The $550 is 'go-away' money. If you don't take it then they'll simply ignore you and let you spend even more money to attempt to win a money judgement which you will lose.

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