Pothole Damage? What to do!

On Friday night May 24th around 7:30PM I was headed home with my kids from a dinner on the plaza.  It was getting dark and it was raining.  We were proceeding south on Ward Parkway and upon crossing the intersection at Belleview there was suddenly a BAM BAM and the entire right side of the car dropped into a pothole with both the front and rear tires.   I did not see the pothole because it was filled with water from the rain and it was getting dark, along with no car in front of me to possibly alert me to the presence of a miniature grand canyon looming ahead.  Almost immediately my tire pressure monitors went off showing air pressure dropping rapidly in both tires on the right side.   I immediately pulled over onto a side street and called Tesla Roadside assistance.

Tesla Roadside assistance answered almost immediately, made sure I was safe, no accident had occurred and logged my location.   A tow truck was dispatched to tow my car and I could either wait with the car or proceed home via some other means.   Given the hour and the fact that the local Tesla Service Center is not open on the weekends I requested that the car be towed to Discount Tire in south Overland Park near where I live.   My assumption was that they had the tires in stock.   Since I had my kids I did not want to wait for the tow truck to arrive so Tesla instructed me to leave my key card in the cup holder and lock the car with my phone.   When the tow truck would arrive the tow driver would call Tesla and they would remotely unlock my car so the driver could load it on the flatbed and take it away.   Meanwhile the kids and I took an Uber home.

The next day I took another Uber to Discount Tire to arrive at just before 8am when they opened.   My car was in their lot with 2 flat tires.   Here are some pictures of the tires and close up of the tire damage to the sidewall of both tires:

You can see that both of the tires have pieces of the pothole stuck in the tires.   Unfortunately, Discount Tire did not stock the 20″ Michelin PS4 tires that I needed for the Performance Model 3.   My next thought was that Tesla might have some at the service center and could someone from Tesla meet me at the service center and sell me a couple of tires.   Sadly, no one from Tesla was available to do so on the holiday weekend.   Fellow club member Chris Minshall suggested that I try Boulevard Tires in KCK.  I know the owner Blake Breeden and he had previously been able to get me a hard to find Michelin tire for one of my other cars so I gave them a call.  Luckily, they had them in stock so I asked them to hold the tires for me while I figured out how to get them.   Thankfully, a neighbor of mine loaned me their SUV to drive to KCK to get the tires and take them over to Discount Tire.  After some running around town I was back at Discount Tire and they were able to dismount my old tires, check that the wheels were not damaged, and mount and balance the new tires.  By mid day I was back on the road again and not stuck for the entire holiday weekend.  The total bill, however, approached almost $750 for the tires, mounting and balancing and uber rides.

I remembered that someone in the Facebook group mentioned getting a check from Missouri for damage to their Tesla from a pothole so I looked that up and it turned out that MODOT had indeed sent them a check.   So the first place I went was the MODOT website and filled out an incident report and file a claim.   Here is the link to file a claim: https://www.modot.org/form/file-a-claim

I heard back from MODOT that they only maintain the highways and since Ward Parkway is not a highway, I would need to contact the city of Kansas City, Missouri and file a claim with them.   OK, good to know.   The KCMO 311 website is at: http://www.kcmo.gov/311/

On the KCMO 311 website you can do multiple things.  One is to report an issue, in this case a pothole, to the city.   I highly recommend that you report the pothole you encountered, but also search the 311 site incidents reported previously to see if anyone else has reported the pothole before you and when.   Why is this important?  Without going into the painful details of the laws governing invitees and trespassers and the duties owed to either, suffice it to say that if a dangerous condition exists on your property and you don’t know about it, then typically you aren’t liable.   This, in essence, gives the city the defense that if they don’t know about the pothole they don’t have to reimburse you, they didn’t have a duty to repair, warn, reimburse, etc.   However, if the city knows about the pothole then they do have to take action in a reasonable amount of time or else a Judge could determine that they breached their duty of care and are liable for your damages.   I searched the 311 database and found that not only had this pothole been reported previously, but multiple times and dating back a couple of months.   I printed out copies of those prior reports to submit with my claim.   The next step is to submit the actual claim, to do so, you will need this form:

http://kcmo.gov/law/wp-content/uploads/sites/17/2013/12/LawDept.ClaimforDamagesform.pdf

The form is pretty self explanatory, but be sure to fill it out completely.   The items I included with my form were:

  1. A letter describing the details of what happened and stating why I thought it was a valid claim and what the total damages were
  2. Copies of all receipts
  3. Pictures of relevant items like the pothole itself, tires, etc.
  4. Copies of the prior 311 reports of the very same pothole showing that the city had notice and thus far had failed to repair it.

I signed all of the items I submitted because their form says to do so and then I made copies of everything for my records, took the papers to the post office and put them in a post office supplied full sized 8-1/2 x 11 envelope and paid for the postage and had the envelope sent with a tracking number and signature request.   The city should be receiving my packet today (5/30/19) and according to their website should log it into their system and provide me a case number within 2 days.   Once you receive a case number you can use that on the 311 website to track the progress of your case.   Speaking of that pothole, I went back and took a picture of it as well as the intersection and here are those pictures:

Now there is some things I want to point out from these pictures.  First, that pothole still has water in it 2 days later (pictures taken on Sunday afternoon) and you can see that not only is the hole deeper than the asphalt, but it goes down into multiple layers of concrete and sub structure.  I did not measure total depth, but I would estimate it at a minimum of 8″ and possibly as much as 12″ or more at the deepest part.   The second item I want to point out is the intersection light traffic light poles and specifically the camera that overlooks that intersection.  The pothole is smack dab in the middle of that camera’s field of view.  Guess who operates the camera?  The city of KCMO.   So let’s say for a moment that this pothole had not been reported previously in the 311 system.   If that were the case, I would make the legal argument that the city’s camera has given the city the required notice of the pothole, a term of art known as “constructive notice”.  For example, if farmer has a damaged fence post that is dangerous but it is somewhere in the back 40 of the farmer’s property then there probably isn’t any notice and no duty of care until the dangerous fence post is discovered.  However, if that dangerous fence post is right next to the farmer’s driveway and every day that farmer drives by that fence post then a judge is likely to say that the farmer should have known about the dangerous situation because the farmer had constructive notice of the problem.   Likewise, if the city had no prior pothole reports for this pothole I would ask to see the video from that camera for say the last 2 months and if you could see the pothole on it, maybe even video of cars hitting the pothole, then I think you could make the argument that they city knew or should have known about the problem, in other words that the city had constructive notice.  After all, what are those cameras there for anyway?  Safety?  That pothole is a safety hazard.   In conclusion, if you run into a situation where you aren’t sure if the city has notice of a pothole, look around and see if there might be a city operated camera nearby to help make your case, or some other way in which constructive notice might have been given.

I should add that if the city or highway department is tearing up a road for resurfacing or repair but having you drive through that area and something happens then you can make a claim and no notice is required because the city or highway department is the one actively creating the hazardous situation that damaged your vehicle.  You still need to submit a claim, but it “should” be paid without resorting to whether or not the government had notice.  Of course, as with anything government related there are no guarantees and the time it takes to get reimbursed may not be very quick.   In my situation, I am hopeful that my thorough documentation and research will persuade the person in the legal department at KCMO to simply pay this one and move on to the next claim, but we shall see how this comes out.   I will report back and update this article in the future once I have a case number and once I have some sort of resolution.   I did hear from someone recently that they had filed a claim over a month ago and that they were still waiting.

I did not include Kansas resources in this article because I assume the situation is the same, that highway are covered by KDOT and city streets by the respective cities.  I also assume you can do an online search and find the websites for respective cities and how to make a claim in each city using my example above.   If someone wants to share their experiences in Kansas please feel free to reply in a comment below to this article.

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