Be careful, there's a pothole on the road...
Aug 31, 2022
By: Adv. Shlomi Hadar – John Geva, Hadar & Co., Attorneys and Mediators
Introduction:
On a dark night, the plaintiff was driving his vehicle on a road that was under construction at the time. During his drive, he hit a manhole cover located in the middle of the road. The cover struck the underside of his vehicle and was dragged several meters, causing significant damage that even triggered the deployment of the airbags.
The driver sued the Jerusalem Municipality, the construction contractors, and the site supervisor for the damage to his vehicle. However, they argued that the road had been properly blocked with large signage, cones, and a lighted cart, and therefore, according to them, the driver could only blame himself.
The court considered the question: “Who bears responsibility for the occurrence of the accident?”
From: Attorney Shlomi Hadar - John Geva, Hadar & Co. - Lawyers and Mediators
introduction:
On a dark night, the plaintiff was driving his vehicle on a road that was under renovation at the time. During his journey, he hit a manhole cover that was in the middle of the road. The cover hit the bottom of the vehicle and dragged it for several meters, causing extensive damage to the vehicle, which resulted in its airbags deploying. The driver sued the Jerusalem Municipality, the renovation contractors, and the inspector for the damage to his vehicle, however, they claim that the road was blocked by large signage, combined with cones and a light bar. Thus, according to them, the driver has no one to blame but himself. The court discussed the question "Who is responsible for the accident?"
Factual background:
On April 21, 2020, late at night, the plaintiff was driving on the road leading to Hadassah Ein Kerem Hospital, with a tall truck in front of him that obstructed his field of vision, all while scrubbing work was being carried out on the road. The plaintiff encountered a manhole cover with his vehicle (the upper opening of a service compartment, which allows access to underground public infrastructure systems and pipes, hereinafter: a manhole), which entered under the wheels of the vehicle and was dragged, causing significant damage to the vehicle, to the point of deploying the airbags and stretching the belts in its lower part, including in the subframe. In this context, the defendants confirmed the damages, stating that "it is not disputed that the vehicle was declared a total loss." However, according to their claim (which we will refer to below), "the contributory fault of the plaintiff, who caused the accident in bad faith, must be reduced from the damage caused."
On April 21, 2020, late at night, the plaintiff was driving on the road leading to Hadassah Ein Kerem Hospital, with a tall truck in front of him that obstructed his field of vision, all while scrubbing work was being carried out on the road. The plaintiff encountered a manhole cover with his vehicle (the upper opening of a service compartment, which allows access to underground public infrastructure systems and pipes, hereinafter: a manhole), which entered under the wheels of the vehicle and was dragged, causing significant damage to the vehicle, to the point of deploying the airbags and stretching the belts in its lower part, including in the subframe. In this context, the defendants confirmed the damages, stating that "it is not disputed that the vehicle was declared a total loss." However, according to their claim (which we will refer to below), "the contributory fault of the plaintiff, who caused the accident in bad faith, must be reduced from the damage caused."
The plaintiff's claim is that the defendants are liable in light of the "dangerous location of the manhole." According to him, the "status" of the road works warned those turning left, but on the road he was driving, there was "no warning, no cone, no sign." When asked about his speed, he claimed that he was driving "around 30-40 km/h" and that he does not remember the exact speed. The plaintiff's claims were supported by the testimony of his friend who was traveling with him in the car at the time of the accident, who testified that he did not see any cones at the time of the accident, and that the scene of the accident was dark. According to him, "we were driving behind a truck, suddenly we heard a boom after a few meters, and airbags deployed to the chest," which seemingly confirms the plaintiff's claims that he was driving at a speed of about 40 km/h.
On the other hand, the defendants claim, based on the affidavit of the foreman, that the lane where the accident occurred was under renovation, closed, and that the area was well lit and controlled "in a large and prominent manner for the execution of the work, cones and outdoor carts were placed on site, all as stated in accordance with a duly approved traffic arrangement." Accordingly, they claimed that the responsibility for the accident and therefore for the property damage he suffered, lies solely with the plaintiff due to his bursting into the closed lane "with a waste of time speed" and "while throwing the cones," hitting the manhole cover and dragging it several meters.
The parties' claims:
The main dispute between the parties revolved around one main question - who is liable for the accident. Did the driver bear the required burden to prove that it was the defendants' negligence in failing to mark the roadworks appropriately for late at night, or was it the plaintiff's negligent driving that led to it?
On the factual level, the court settled the dispute by relying on the report of the police officers who arrived near the incident and documented a different state of affairs than that presented by the defendants. There, the officer in charge wrote that - during the incident, he noticed more vehicles stuck in the manhole cover until one of the workers moved the cover with a tractor and returned it to the open pit. The police report did not mention scattered cones that were thrown as claimed by the defendants. Accordingly, and based on the evidentiary infrastructure presented to the court, which includes photos of the accident scene as taken near the accident, it was decided that the plaintiff had proven his version regarding the circumstances of the accident and the road conditions.
At the level of damages, the basic rule regarding the burden of proof in tort claims is that the burden of proof regarding the occurrence of the damaging event lies with the plaintiff. In this case, the defendants did not deny the fact that the road was renovated by them, thus, the defendants are in any case responsible for the proper functioning and durability of the sewer cover on the renovated lane. The court also referred to section 41 of the Torts Ordinance, which states that the duty of proof is negligence when the cause of the damage is property over which the defendant has full control, and it seems to the court that the incident is consistent with the conclusion that the defendant did not exercise more reasonable caution than he did. The defendant must prove that it was not his negligence that caused the damage to occur. Thus, the court ruled that the defendants did not present a convincing version according to which the event that caused the damage was not a lack of negligence on their part.
It should be noted that the court believes that if the marking and blocking of the road had been done as required, it would have had before it a completely different evidentiary basis than that presented in the proceedings.
However, the court ruled that the plaintiff was at fault for contributing to the damage. This determination is based on his statement that he was driving behind a tall truck late at night, when renovation work was being done on the road, which required extra caution, caution that the plaintiff (the court held) did not exercise. In other words, the evidentiary basis raises doubt (which the court accepted) regarding the plaintiff's speed at the time of the incident. Therefore, it found it appropriate to reduce the damages for contributory fault by 30%.
In light of the above, the claim was partially accepted.
The court's decision:
Summary:
This ruling proves the great importance of taking extra care when performing work, marking, blocking paths/land in a professional and clear manner to the environment, which constitute an effective and convincing measure in the event of an insurance claim that allows for more effective and better defense in legal claims and in general.
It is also understood that accidents are inevitable even when extreme caution is taken, and therefore it is important to have adequate insurance coverage or response for professional negligence in cases of this type.
This ruling proves the great importance of taking extra care when performing work, marking, blocking paths/land in a professional and clear manner to the environment, which constitute an effective and convincing measure in the event of an insurance claim that allows for more effective and better defense in legal claims and in general.
It is also understood that accidents are inevitable even when extreme caution is taken, and therefore it is important to have adequate insurance coverage or response for professional negligence in cases of this type.
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