Pothole and pavement defect claims against California municipalities turn on two distinct questions referring attorneys must evaluate separately: whether the city had notice of the hazard, and whether the city can show its response, or lack of one, was reasonable. Understanding both halves of pothole city liability California analysis, and how easily the second half can be lost through a pleading error, is essential to valuing these claims.
835
Government Code section setting the notice requirement
835.4
Reasonableness defense the city can waive by failing to plead it
Government Code section 835 requires a plaintiff to show the entity had actual or constructive notice of the dangerous condition long enough before the injury to protect against it, or that an employee created the condition. In pothole cases, actual notice can come from prior complaints, 311 entries, prior repair requests nearby, or evidence that employees regularly observed the location. Constructive notice can come from a defect obvious and longstanding enough that a reasonable inspection program would have found it.
When a plaintiff can show city employees regularly visited or worked at the exact location, that often proves notice more effectively than a formal inspection record, because it shows repeated exposure to the hazard over time rather than a single inspection event. Discovery should target employee work schedules, service routes, and assignment logs showing who had reason to be at the defect location, and how often.
Even where notice is established, an entity can avoid liability by showing its action, or decision not to act, was reasonable given the practicality and cost of protective measures against the likelihood and gravity of injury. It is a fact-intensive showing that needs evidentiary support.
Like most affirmative defenses, it must be pleaded in the entity's Answer. An entity that fails to raise 835.4 risks having the defense deemed waived, removing what is often its strongest trial argument.
Review the entity's Answer specifically to confirm the defense was adequately pleaded, rather than assuming it will appear at trial because it is commonly available.
Build the notice record early and broadly.
The case behind this page
Employee presence at the hazard for over a year proved notice, and the City's failure to plead 835.4 removed the defense.
Read the pothole verdict storyRelated evidence
How to request the municipal records that build a notice case.
The records discovery guideRelated breakdowns from this case and our dangerous-condition practice.
We take public-entity dangerous-condition cases as counsel or co-counsel and pay statutory referral fees.
Refer a caseThe plaintiff must show the city had actual or constructive notice of the dangerous condition with sufficient time to correct it before the injury, or that a city employee created the condition through negligent or wrongful conduct, under Government Code section 835.
Notice can be established through prior citizen complaints, repair requests, or evidence that city employees regularly visited or worked at the specific location, which demonstrates ongoing exposure to the hazard even without a documented inspection.
Yes. Like other affirmative defenses, the reasonableness defense under section 835.4 must be properly raised in the entity's Answer, and a court can find the defense waived if it was not adequately pleaded.
