Potholes in Paradise

TASA ID: 1199

San Diego is one of the best places in the nation for road cycling, beautiful scenery, consistently great weather, wide streets, bike lanes in abundance and drivers generally conditioned to the legions of riders sharing the roadways.  But, like any municipality, the well-traveled roads are constantly in a state of flux.  Let’s take a cursory look at the mix of conditions dealing with dangerous road conditions, the varied equipment used by cyclists and finally outline the conditions of liability from the perspective of this bicycle/ Ebike safety and handling expert.     

The Equipment we use

The most common bike in use today is probably the 700C series road bike with narrow 23-28 mm wide tires on tightly strung aero spoked wheels that offer little active suspension.  Ebikes on the other hand have smaller diameter wheels that put far more rubber on the ground with tires averaging 20”X 4.0”.  In addition to the wider tires, Ebikes are equipped with front suspension forks that allow riders to roll over road irregularities far easier than road bikes.  Road bikes were primarily designed for speedy pedaling on smooth surface roads with a plethora of gear choices to maximize a rider’s strength in the most efficient transfer of energy possible.  Ebikes were designed for the purpose of transportation, and often are seen with both a rider and passenger. Road bikes are equipped with drop handlebars which by their nature, position riders with a lowered torso requiring the head to be lifted slightly making it challenging to hold one’s head up–eyes forward--for an extended duration.  When heads drop, it’s foreseeable the rider’s forward visibility is reduced.  Ebikes are equipped with straight or upturned bars and high head tubes for utility and comfort and allow the rider greater visibility without the continual stress of holding the head up.  Although very different machines, both have been known to fall prey to road potholes. As with all equipment the first order of business for the expert witness is a full inspection of the bike to determine operational soundness.   

Road surface destruction, camouflaging and the element of surprise

Nature, neglected maintenance, automobiles, and heavy service vehicles have systematically compromised our roadways. A pothole on an asphalt road is an accident waiting to happen.  Destruction of asphalt and eventually cement occurs by degree, based on the volume of motor vehicle traffic exasperated by weather conditions. The damaged road base (subbase) underneath the road surface is generally the culprit especially during periods of the poor weather. The deterioration occurs much faster with a combination of increased volume of heavy rolling pressure and the consistency of those afore-mentioned conditions.  A pothole deeper than 1 ½ inch can foreseeably compromise a moving cyclist’s stability and forward motion. Bicyclists have the right to assume the conditions of the roadway in their route or bicycle path will be safe. 

A common problem according to Gary Gsell, Infrastructure Assessment expert, is inferior patches installed quickly when cost-cutting municipalities choose hasty surface area patching as opposed to removal of entire sections and repaving.  Hitting a pothole that was not apparent can destroy a wheel or damage a bike frame, but if the rider goes down, there is the potential for catastrophic injury.  Many times, pavement flaws follow the lines of construction layout. If a road is paved in longitudinal direction with the lane, the movement of heavy traffic will eventually cause the edges of the asphalt seams to separate, crack and split, thus opening the roadway to the elements. As the surface breaks up and starts to crumble with the existence of water, construction debris can interfere with a cyclist’s forward travel. If a repair follows this same pattern, we often see a darker shade of new asphalt preceding a dangerous condition. Accidents are far more frequent if a cyclist is riding in reduced light, shade or distraction from traffic and fails to identify the damaged area lurking just ahead. It is important to ride and walk the accident scene under similar conditions, time of day and lighting. This qualifies the expert with first-hand knowledge.    

 The Value of discovery

Proving a dangerous condition case involves several factors that an expert must consider:  1. The public entity that owned or controlled the property.  2. Property was in a dangerous condition to bicycles.  3. The risk of injury was foreseeable when used with care.

 The Value of the Expert

An expert witness can assist an attorney in addressing pretrial Motions for Summary Judgement or Adjudication and with Declarations from his/her research-based perspective. A well-versed expert can also help an attorney in determining comparative fault, settlement, mediation, depositions, discovery, and of course trial.  Immediate documentation of the accident scene with photos, videos, Google Earth, measurements, GPS coordinates are all essential timely considerations. Teamwork is critical in developing a solid case, working in conjunction with other experts to develop documenting videos, stills, animation, and drone placement, all parts of this process.    

The Lay of the Land

Was there prior notice of an existing problem, a filed formal complaint with the public entity? If yes, then the entity was on notice. If not, informal complaints can be found and strengthen a claim of actual notice. If no proof of prior complaint exists, then an argument of constructive notice may be the next option. Constructive notice simply means that the condition was in existence long enough that the public entity should have known about it, and the repairs should have been made. Public Record requests can help identify helpful evidence.

The Road Ahead 

Cyclists –It is our duty to inform the public municipalities immediately if a threatening condition turns up and use exact coordinates to locate.

Public works—Damaged, dangerous and deteriorating conditions need to be spotted, documented, and repaired by municipalities immediately after notice or after a spell of inclement weather.        

Reference:  Stack City of Lamoore (2023)   FO82994

Amber Webster v. City Hermosa Beach Declaration of Safety/     Handling expert John K. Howard   case No 21STCV26516  

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