It’s that time of year again: The aftermath of frost-heave and freeze / thaw cycles

It’s that time of year when the frost-heave and freeze-thaw cycles from South Dakota’s blustery winter have wreaked havoc upon our highways* in unpredictable ways. These temperature fluctuations have been especially turbulent this year, contributing to pothole formation literally overnight. While driving thousands of miles across South Dakota this spring, I observed pothole numbers at unprecedented levels. The South Dakota Public Assurance Alliance (SDPAA) receives several calls from our Members when motorists assert claims against local governments for these conditions. This article will briefly discuss the legal landscape of what local governments must do when notified of these conditions.

Historically, counties and townships have been held to the maintenance standards specifically found in state statutes. However, municipalities were treated differently as South Dakota courts imposed upon municipalities a “common law” duty of requiring municipalities maintain streets in a “reasonably safe condition.” The definition and scope of “reasonable” and the resulting duty the court imposed depended upon the unique facts and circumstances of every case. It created a more broad liability exposure and also was more unpredictable for municipalities than other local governments.

The duties for municipalities changed in 2008 when the South Dakota Supreme Court held that the duties of municipalities as to the construction and maintenance of streets are governed solely by state statute, not by common law. The Court overruled almost a century of prior Court decisions. Hohm v. City of Rapid City, 753 N.W.2d 895, 899-900, ¶ 7 (SD 2008). For counties and townships, the Court recognized that it had consistently held that their duties for streets were statutory. Id. at ¶ 8. Now all local governments are held to the same statutory standards.

Local governments’ maintenance standard for streets is contained primarily in SDCL 31-32-10, which provides:

If any highway, culvert, or bridge is damaged by flood, fire or other cause, to the extent that it endangers the safety of public travel, the governing body responsible for the maintenance of such highway, culvert, or bridge, shall within forty-eight hours of receiving notice of such danger, erect guards over such defect or across such highway of sufficient height, width, and strength to guard the public from accident or injury and shall repair the damage or provide an alternative means of crossing within a reasonable time after receiving notice of the danger. The governing body shall erect a similar guard across any abandoned public highway, culvert, or bridge. Any officer who violates any of the provisions of this section commits a petty offense.

(Emphasis added). The essential terms from this statute are that the local government should erect guards over such defects within 48-hours of receiving notice and should repair the damage or provide an alternative means of crossing it within a reasonable time after receiving notice of such danger.

The part of this statute that is sometimes overlooked by claimants is that the local government must first receive notice of the danger before these statutory duties take effect. If a local government had not received any notice of the defect or did not have any knowledge on its own, then it is not responsible.

The ability of a local government to fulfill these statutory requirements is certainly impacted by the resources it has available. Some larger communities may have a “Pothole Hotline,” with a work crew ready to fill in potholes as they appear; smaller communities must rely upon very limited personnel to take action within a reasonable time. It is extremely difficult for a local government of any size to monitor all of its streets and make the required repairs in a timely manner, so the statute provides local governments with a reasonable time after receiving notice to take necessary action.

Every local government should have a policy on regularly and routinely inspecting the roadways within its jurisdiction and then timely taking the required actions. Your entity should keep a log of the time and date and nature of the issue when it receives a call, an email, or any other type of notice (even if Jane Doe simply mentions a specific roadway item when you see her around town) regarding a new danger observed in a highway in its jurisdiction. This log serves two main functions: it creates a “to-do” list for repairs and also creates a timeline for when the local government first received notice. This log may become a vital piece of evidence if a claim about the condition of the road is ever asserted against the local government. By maintaining the log, you are also making a commitment to take actions in a timely manner.

Local governments should encourage their citizens to report any defects they observe in the streets, including potholes. In turn, those local governments receiving such notice will need to be ready to respond within forty-eight hours with necessary signage and/or conduct a repair within a reasonable time. Once a local government becomes aware of a pothole, for instance, it should either repair it or place signage to alert drivers of the danger in the roadway, along with providing an alternate means of crossing it.

The South Dakota Local Transportation Assistance Project (LTAP) provides the following guidance on signage for a pothole in the roadway:

  • Install “Rough Road” (W8-8) 36” X 36” sign in advance of the pothole area. An alternative legend could be “Road Breakup” or “Potholes”. The Potholes sign is more of a special order sign but could be made if done according to the requirements for a warning sign.
  • An advisory plaque “Ahead” (24” X 24”) sign could be installed under the signs mentioned above, but it is optional.
  • If there are major holes in the roadway, a Type 1 object marker “Solid Yellow Diamond Shaped” sign (OM1-3) (18” X 18”) should be installed along the roadway at the location of the hole.

Additional information about this signing can be found in the Manual on Uniform Traffic Control Devices, (MUTCD), 2009 edition, Chapter 2C – Warning Signs and Object Markers. This manual can be found at:

David Pfeifle
Executive Director

  • Footnote: State statutes refer to streets, roads and highways, collectively as “highways.” SDCL 31-1-1. This article will refer to them as “streets” or “roads” as those are the terms we use in everyday language.