Potholes, Trails, and Claims Against the Government

This is chapter 5 of The DC, Maryland & Virginia Bicycle Injury Guide. Our general guide's chapter on government, Metro, and public property covers the same statutes for every kind of claim.

Key points

• First identify who owns and maintains the road or trail: D.C., a Maryland county or city, the State of Maryland, a Virginia locality, VDOT, a regional park authority, the National Park Service, or a private owner.
• D.C.: written notice to the Mayor within six months (D.C. Code § 12-309).
• Maryland: written notice to a local government within one year (Md. Code, Cts. & Jud. Proc. § 5-304); a written claim to the State Treasurer within one year (Md. Code, State Gov't § 12-106).
• Virginia: a written statement to a county, city, or town within six months (Va. Code § 15.2-209); notice to the Commonwealth within one year, filed with the Commissioner of Highways when VDOT is involved (Va. Code § 8.01-195.6).
• Federal trails and parkways: a written claim to the agency within two years (28 U.S.C. § 2401(b)), and recreational use statutes can limit the duty owed to trail users.

Who is responsible for a pothole or a broken trail?

Whoever owns or controls that stretch of pavement, and in the DMV that takes real work to pin down. A street in the District is usually maintained by D.C., but parkways and many trails in and around the city are National Park Service land. In Maryland, a county road, a city street in a place like Rockville or Takoma Park, a state highway, and an M-NCPPC park trail all belong to different public bodies. In Virginia, VDOT generally does not maintain roads in cities, towns, or Arlington County other than interstates and major primary roads, while in most other counties, including Fairfax, Loudoun, and Prince William, VDOT maintains the secondary roads. The Washington and Old Dominion Trail is owned by NOVA Parks (the Northern Virginia Regional Park Authority). A utility company or a contractor that left a trench, a steel plate, or an uneven patch may be responsible instead of, or along with, the government.

Photograph the defect with something for scale, note its exact location (a pin drop on your phone works), and look for any work-zone signs or contractor names. That identifies the defendant, and the defendant decides the deadline.

How do you make a claim against D.C. for a bike injury?

By giving written notice to the Mayor within six months of the injury, stating the approximate time, place, cause, and circumstances (D.C. Code § 12-309(a)). A written Metropolitan Police Department report made in the regular course of duty can count as notice, but a report about a bike that hit a pothole often does not describe the defect, so we send our own notice. The lawsuit itself must generally be filed within three years. Our page on suing the District of Columbia covers these claims in depth.

How do you make a claim against a Maryland county, city, or the State?

For a county, city, or other local government, written notice must be given within one year after the injury, stating the time, place, and cause, delivered in person or by certified mail, return receipt requested (Md. Code, Cts. & Jud. Proc. § 5-304). In Montgomery County it goes to the County Executive; in Prince George's County, to the county attorney or county solicitor; for a municipality, to its corporate authorities. A court may excuse late notice for good cause unless the government shows prejudice, and notice is not required if the government had actual or constructive notice of the injury or the defect within the year. Do not count on either.

For a state highway or other State property, a written claim must go to the State Treasurer or a designee within one year, the claim must be finally denied, and suit must be filed within three years (Md. Code, State Gov't § 12-106(b)). See our Maryland government claims page.

How do you make a claim against a Virginia locality or VDOT?

For a county, city, or town, a written statement of the nature of the claim, including the time and place of the injury, must be filed within six months with the locality's attorney or its chief executive or mayor (Va. Code § 15.2-209). It is filed when received, and you bear the burden of proving receipt, so send it in a way that produces a signed receipt. A late statement does not bar the claim if the locality's attorney, chief executive, mayor, or insurer had actual knowledge of the claim's nature, time, and place within the six months.

For a claim against the Commonwealth, the written statement must be filed within one year, with the Director of the Division of Risk Management or the Attorney General, or with the Commissioner of Highways when VDOT is the agency alleged to be liable (Va. Code § 8.01-195.6). Notice is only the first hurdle: Virginia localities have immunity for governmental functions, and whether road maintenance falls on the right side of that line is often the main dispute. See our Virginia government claims page.

What if you were hurt on a federal trail like the Mount Vernon Trail or the C&O Canal towpath?

A claim against the United States under the Federal Tort Claims Act must be presented in writing to the responsible agency, usually the National Park Service, within two years, and suit must be filed within six months after the agency mails a final denial (28 U.S.C. § 2401(b)). You cannot sue until the agency denies the claim or six months pass without a decision, and you generally cannot later sue for more than the amount you claimed (28 U.S.C. § 2675). The United States is liable in the same manner as a private individual under like circumstances, but not for punitive damages or prejudgment interest (28 U.S.C. § 2674). See our Federal Tort Claims Act page.

That "private individual" standard brings in state recreational use statutes, which can be a serious obstacle for trail injuries. In Virginia, a landowner owes no duty of care to keep land safe for recreational uses, including "bicycle riding," and need not warn of hazards, but the protection does not cover gross negligence or a willful or malicious failure to guard or warn, or land used for a fee (Va. Code § 29.1-509(B), (D)). Maryland's statute similarly provides that an owner of land owes no duty of care to keep premises safe for recreational use, except for willful or malicious failure to guard or warn and where the owner charges for entry (Md. Code, Nat. Res. §§ 5-1103, 5-1106). Whether one of these statutes applies to a particular trail, owner, and injury is a legal question we analyze at the start of every trail case.

What if a contractor or utility caused the hazard?

Then the claim may be an ordinary negligence claim against a private company, with the normal deadline to sue (three years in D.C. and Maryland, two in Virginia) and no notice requirement. Construction plates, trenches, unmarked lane closures, and gravel left on a bike lane are common examples. Often both the government and a contractor are potential defendants, so we give the government notice on time while we investigate the contractor.

• Previous chapter: Who Pays When a Cyclist Is Hurt
• Next chapter: Capital Bikeshare, Group Rides, and Waivers

Related practice areas

Related reading

• Suing the District of Columbia: the § 12-309 six-month notice
• Maryland's LGTCA notice letter: the one-year trap
• Suing the government in Virginia: the Tort Claims Act's short deadlines
• DMV Injury Guide: government, Metro, and public property

Responsible attorneys: Ryan C. Posey and Jacob M. Lebowitz. Posey Lebowitz PLLC, 3221 M Street NW, Washington, DC 20007.