Question: Can Indiana governments be held liable for injuries and damages caused by “potholes” or other defects in the roadway?
Answer: Yes. The principle that a governmental entity has a duty to keep streets in good repair is well settled. Note, road maintenance is a ministerial function for which the governmental entity is not immune, except as specifically provided in the Indiana Tort Claims Act. Someone seeking to make a recovery caused by a pothole or other road defect would have to comply with the Indiana Tort Claims Act’s notice provisions or their claim will be barred.
The threshold question is whether the presence of the pothole or other defect in a roadway is a defect which a governmental entity is obliged to remove. To be held liable for injuries caused by a defective condition in a roadway, the governmental entity must have knowledge of the defect, either actual or constructive. Constructive knowledge will lead to liability for only those defects which the exercise of ordinary care and diligence would have discovered.
