Totaled van, bank denies claim

jadzia · #1 01-15-2007, 10:23 AM

What is the name of your state? SC

On Oct 6th,2006 around 10pm I was following my husband in my van through the ATM machine at my bank. I went around a median and the front tire (passenger side) hit a pot hole that was covered by water (it was raining). I heard a thunk but didn't really think anything of it, so kept driving home. At the entrance of my subdivision (5 miles from bank) the van cut off. I had it towed to the mechanic and they found that the oil pan was bent and the oil filter had been punctured, motor seized. The van is a total loss. After a few days we found out the bank was responsible for maintaining the parking/access areas. I filed a ProSe, but the bank is denying the claim stating it was my own negligence. What can I do? Where do I go from here? Please help...thank you so very much for your time.

seniorjudge · #2 01-15-2007, 10:25 AM

Quote:

Originally Posted by jadzia

What is the name of your state? SC

On Oct 6th,2006 around 10pm I was following my husband in my van through the ATM machine at my bank. I went around a median and the front tire (passenger side) hit a pot hole that was covered by water (it was raining). I heard a thunk but didn't really think anything of it, so kept driving home. At the entrance of my subdivision (5 miles from bank) the van cut off. I had it towed to the mechanic and they found that the oil pan was bent and the oil filter had been punctured, motor seized. The van is a total loss. After a few days we found out the bank was responsible for maintaining the parking/access areas. I filed a ProSe, but the bank is denying the claim stating it was my own negligence. What can I do? Where do I go from here? Please help...thank you so very much for your time.

You haven't given any facts showing that the bank was negligent.

Do you have any facts showing the bank's negligence?

CraigFL · #3 01-15-2007, 11:00 AM

I'm sure they are thinking that before a vehicle runs out of oil the red oil light is on and it's making a lot of noise...

ecmst12 · #4 01-15-2007, 11:51 AM

Exactly, at MOST they would be responsible for the cost to replace the oil pan and filter. And you may need to show that they were aware of the pothole and negligently failed to fix it prior to your accident, in order for them to be responsible for even that much.

jadzia · #5 01-15-2007, 03:57 PM

It was a large hole, which definitely did not pop up over night. There were no pilons or anything cording off the area to avoid anyone from falling into that pot hole. Is that not negligence?
Yes, the panel it up and it started making some noise when I reached the subdivision, then it died.

seniorjudge · #6 01-15-2007, 04:00 PM

Quote:

Originally Posted by jadzia

It was a large hole, which definitely did not pop up over night. There were no pilons or anything cording off the area to avoid anyone from falling into that pot hole. Is that not negligence?

That could possibly be negligence, depending on lots of things, one of which is how long it had been there.

Of course, the bank's attorney will ask you that seeing as how you thought that was such a large hole and you ran into it and heard a thunk, then why did you not check your car for damage?

jadzia · #7 01-15-2007, 04:09 PM

Quote:

Originally Posted by seniorjudge

That could possibly be negligence, depending on lots of things, one of which is how long it had been there.

Of course, the bank's attorney will ask you that seeing as how you thought that was such a large hole and you ran into it and heard a thunk, then why did you not check your car for damage?

It was after 10pm, cold, raining, the pot hole was covered with water, it was dark and from where I turned into the lane there was no way of viewing it. I actually did not see the hole until that next Monday when my husband and I went to speak with the bank manager and take pictures.

moburkes · #8 01-15-2007, 04:17 PM

Quote:

Originally Posted by jadzia

It was after 10pm, cold, raining, the pot hole was covered with water, it was dark and from where I turned into the lane there was no way of viewing it. I actually did not see the hole until that next Monday when my husband and I went to speak with the bank manager and take pictures.

So it was the bank's fault that it was dark, COLD, and the pot hole had water in it?

And, now, you're saying that you're blaming a hole that you didn't even know existed until "that next Monday"?

fairisfair · #9 01-15-2007, 04:26 PM

Quote:

Originally Posted by moburkes

So it was the bank's fault that it was dark, COLD, and the pot hole had water in it?

And, now, you're saying that you're blaming a hole that you didn't even know existed until "that next Monday"?

why am I picturing some guy, in the dark, in a driving storm, carrying a pick axe??? oh, and I think it might be the NEXT day too!! LOL

stephenk · #10 01-15-2007, 04:27 PM

The bank has a duty to maintain its premises in a safe manner. A pothole deep enough to crush out an oil pan and filter can strongly be argued to be negligent. The defense of "open and obvious" condition can be defeated with the argument that it was at night, raining, and the pothole was filled with water that would mask its depth or even that it was a pothole.

Do research on "premises liability" and "notice of defect".

Remember, the bank is going to deny liability. That doesn't mean they aren't willing to negotiate. have you been able to get the name of their liability insurance carrier?

fairisfair · #11 01-15-2007, 04:29 PM

stephen, didn't something in the first post pique your interest?? There is something there that is very telling.

jadzia · #12 01-15-2007, 04:30 PM

No and no...I had not been to the bank for weeks. Yes, the bank should have better lighting to protect its clients. When my husband and I spoke with the bank manager he stated that he had contacted the company in charge of maintainance the day before to cover the hole. When we asked him why there were no signs or anything to avoid someone or something falling into the hole he stated..." It is not the banks responsibility." It took us weeks to find out that the bank was responsible after all for fixing the hole, after calling many offices..etc. So, I feel that there is definitely negligence involved by the bank.

seniorjudge · #13 01-15-2007, 04:32 PM

Quote:

Originally Posted by stephenk

The bank has a duty to maintain its premises in a safe manner. A pothole deep enough to crush out an oil pan and filter can strongly be argued to be negligent. The defense of "open and obvious" condition can be defeated with the argument that it was at night, raining, and the pothole was filled with water that would mask its depth or even that it was a pothole.

Do research on "premises liability" and "notice of defect".

Remember, the bank is going to deny liability. That doesn't mean they aren't willing to negotiate. have you been able to get the name of their liability insurance carrier?

Steve, it was not on the bank's real estate....

jadzia · #14 01-15-2007, 04:35 PM

Yes it was on the bank's real estate. I have pics of the hole. Would anyone care to see them?

fairisfair · #15 01-15-2007, 04:35 PM

I am sure you do. Sorry I don't believe your story and this is why.

"I went around a median "

If there was enough water to fill a large hole and prevent your ability to see it, the street or parking lot would have been flooded. Chances are that you DID not go around the median, but rather up ,onto and OVER the median, thereby damaging your own oil pan. Either there was so much water that you could not see the street or the huge pothole thereby also obscuring your view of the median, or there wasn't. It can't be both.