Scooters have small, hard wheels. A pothole, sunken drain grate or pavement seam that a car rolls over can stop a scooter dead and throw the rider forward. When the road belongs to a town, county or the State, the claim runs through the New Jersey Tort Claims Act, which has strict rules and a very short first deadline.

The 90-day notice: the deadline that ends the most claims

Before you can sue a New Jersey public entity, you must serve a written notice of claim within 90 days of the accident (N.J.S.A. 59:8-8). The notice goes to the entity responsible for the road, and many towns and counties have their own claim forms. If you miss the 90 days, a court may allow a late notice only within one year and only for "extraordinary circumstances," and only if the public entity hasn't been substantially prejudiced (N.J.S.A. 59:8-9). After the notice is served, you generally must wait six months before suing, and the lawsuit must be filed within two years.

Figure out who owns the road

New Jersey roads may belong to a municipality, a county, the State through the Department of Transportation, or an authority. A pothole on a county road isn't the town's responsibility, and a notice sent to the wrong entity may not protect you. Ownership and maintenance responsibility often have to be researched, which is another reason not to wait.

What you must prove

A public entity is liable for a dangerous condition of its property only if you prove (N.J.S.A. 59:4-2):

  • The property was in a dangerous condition, meaning a substantial risk of injury when used with due care in a reasonably foreseeable way;
  • The condition caused your injury, and the kind of injury was reasonably foreseeable;
  • The entity either created the condition or had notice of it in time to fix it; and
  • Its failure to protect against the condition was "palpably unreasonable."

"Palpably unreasonable" is a high bar, higher than ordinary carelessness. Evidence that the defect had been reported before, appeared in earlier repair records, or had existed for a long time is often what makes these cases.

The limit on pain and suffering

The Tort Claims Act restricts damages for pain and suffering against public entities. You can recover them only for a permanent loss of a bodily function, permanent disfigurement or dismemberment, and only when medical treatment expenses exceed $3,600 (N.J.S.A. 59:9-2(d)). Serious scooter injuries, such as fractures needing surgery, head injuries and dental and facial injuries, often meet that standard, but it requires strong medical proof.

Is a scooter a "foreseeable use" of the road?

A public entity may argue that a road is safe for cars and that a scooter rider wasn't using it with due care. New Jersey law expressly permits low-speed electric scooters on streets, roadways and bicycle paths (N.J.S.A. 39:4-14.16(a)), which supports the argument that scooter riders are a foreseeable use. Bike lanes and paths deserve particular attention, since they are built for exactly this kind of traffic.

Evidence to gather right away

  1. Photograph the defect from several angles, with something for scale such as a shoe, a coin or a tape measure. Defects get patched quickly after an injury.
  2. Note the exact location: street, nearest address or pole number, and lane position.
  3. Find witnesses and cameras nearby.
  4. Request records of earlier complaints and repairs. New Jersey's Open Public Records Act can help, and your lawyer can also request them in the case.
  5. Keep the scooter and your helmet as they are.

Private property is different

If the defect was in a privately owned parking lot, driveway or commercial sidewalk, the Tort Claims Act doesn't apply. Ordinary negligence rules and the normal two-year deadline do. Sidewalk and private-property falls.

For more about claims against government bodies, see New Jersey Tort Claims Act deadlines and our scooter accidents page.