Potholes in Parking Lots and Sidewalks
Potholes are as common as corn dogs, pork tenderloins and basketball in Indiana. It’s a part of life.
And trips in pothole parking lots are nearly as common.
A trip and fall accident can easily occur due to pothole in a parking lot. Owners and managers of retail businesses have a responsibility to take notice of the interior and exterior of their premises in order to discover unsafe conditions and defects. Next, upon learning of unsafe conditions, the business landowners or possessors must take steps to remedy the hazardous condition in order to prevent injuries to customers and patrons.
A pothole in a parking lot might seem like a small thing or an innocuous condition — until a person steps into that pothole and falls down with serious injuries as a result.
When a pothole in asphalt or uneven level of walkway presents a reasonable risk of injury, a landowner is under a duty to remedy the situation or appropriately warn of its potentially dangerous condition.
It does not matter if the landowner caused the pothole, crack in pavement or uneven level, negligence law requires a remedy or warning by the landowner if they are knowledgeable about the situation or should have been knowledgeable.
Simply ignoring the pothole problem is not acceptable behavior by the landowner and if you are injured you might be able to hold the landowner responsible for your damages – which can include medical bills, mental anguish, pain and suffering, lost wages, lost future wages and scars and disfigurement as well as a diminishment in the overall quality of your life.
Why a Pothole Case can be Difficult to Win and Common Defenses
A common defense to these types of claims by landowners include that the pothole of cracked asphalt was “open and obvious” to the customer who should have appreciated its danger. But, this type of defense ignores that it is often impossible for a person – who is walking carefully – to recognize a pothole due to coloring or simply not anticipating a hole where people are expected to walk.
It’s important to remember to establish a claim for “negligence” on the part of a landowner or business like a store or restaurant for your slip and fall, you must show that the duty of “reasonable care” was breached (not met).
This means the property owner must have actual or constructive knowledge (knew or should have known) of the presence of the hazardous condition in order to be held liable. Schulz v. Kroger Co., 963 N.E.2d 1141, 1144 (Ind. Ct. App. 2012). This includes potholes and differences in elevation in areas where people are expected to walk.
And the simple truth is that the vast majority of pothole trip and fall or slip and fall incidents can be avoided with appropriate precaution and maintenance. After all, a pothole is a progressive condition caused over time. A first-time visitor to a business, store or restaurant might not have the same awareness compared to the landowner or business proprietor of the potentially dangerous pothole condition.
Moreover, a reasonable inspection schedule by the landowner should reveal dangerous potholes in parking lots. With that knowledge, the landowner can take the steps necessary to remedy the danger. Blaming the person who tripped and fell is an obvious deflection of who should have the ultimate responsibility for the injury.
What to do After You’ve Been Hurt in a Pothole in a Parking Accident
Gathering evidence from the scene of the incident immediately after the it happens is extremely important. Remember to make an incident report with the landowner or business manager. Take cell phone photographs before the landowner fixes or paves or fills the pothole. If you cannot do it, have a family member or friend do it for you.
If you are not clear about what to do next, then you need to sit down with an experienced Indiana pothole slip and fall lawyer to figure out whether or not you have the necessary grounds to move forward with a legal claim.
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