If a pothole damages my car, who pays?

Question

José Manuel Alburquerque · Accepted Answer

Normally, the public authority that owns the street or road, if the pothole was significant, was not marked with warning signs and was not repaired within a reasonable time. In towns and cities it is usually the town council and, on a road, the State, the Generalitat de Catalunya (the Catalan government), a provincial council or a town council, depending on who owns it. You claim against it under the “responsabilidad patrimonial” of the public authorities, which is their obligation to compensate for damage caused by their services, within one year of the day of the damage. If you have fully comprehensive cover, you can be paid sooner by your own insurer, which will then claim from whoever is responsible. Who is liable The owner of the road, which must keep it in good condition and mark any hazards with warning signs. On a toll motorway run under a concession, also the motorway operator, which is the company that runs it. If the pothole or trench was left by roadworks, also the company that carried them out, for example a water, gas or telephone company or a contractor working for the town council. If in doubt, claim against both the public authority and the company. Not every pothole entitles you to compensation. What is assessed is its size, whether it was visible, whether it was marked with warning signs and how long it had gone unrepaired. How you were driving also counts. If you were going too fast or were distracted, the compensation may be reduced. How to prove it Photos of the pothole with something that shows its size and depth. Take others showing where it is, with the address or the kilometre marker. Photos of the damage to the car. The garage's report linking the damage to the impact, for example to the wheel, the rim or the suspension. Keep the invoice too. The witnesses' details and, if the police attended, their report. Any evidence that other drivers suffered the same thing or that residents had already reported the pothole. How to get paid The claim to the public authority is free and does not require a lawyer or a prior attempt to reach an agreement. But if it is rejected and you want to go to court, you will need a lawyer in the administrative court, which may not be worth it for minor damage. Another possible route is to sue only the town council's insurer in the civil courts, where up to 2.000 euros you need neither a lawyer nor a court agent (“procurador”). In that case you must first try to reach an agreement with the insurer. As it is not clear what time limit applies to that claim, count on one year from the day of the damage. If you have fully comprehensive cover, you can ask to be paid by your own insurer, which will then claim from whoever is responsible. Any excess your insurer deducts, you can claim yourself from the public authority. As well as the repair, you can claim the towing costs and, if the vehicle is how you earn your living, such as a taxi or a delivery van, the earnings you lost while it was off the road, if you can prove them.