UPDATE II: Can the Sioux Falls City Council form legislation to help with pothole damages to vehicles?

I actually think the Sioux Falls city council has the power to put a policy into place to create a contingency fund to help citizens and visitors pay for damages endured to vehicles due to the pothole crisis.

So what would this look like and how would it work? I’m not a legal beagle so this is my BASIC recommendation.

The fund could easily be created/estimated by doing a survey of mechanic shops over the past couple of weeks. For estimation sake let’s say it is 1,000 vehicles with an approximate damage rate of $200. The fund could be set at $2 Million and could easily come from reserves. Current city reserves are around $52 million (end of 2018).

How would you stake a claim? The easiest way would be thru a 3.21 notice that would be sent directly to the mayor’s office (which is turned over the city attorney). This form basically says that you were harmed by the city.

FORM: SDCL3.21 Notice of Claim

**SEE BELOW WITH INSTRUCTIONS ON HOW TO FILL OUT THIS FORM

You would have to have a window of time that pothole damages could be reported. With a 3.21 notice that is typically 6 months.

There would also have to be a ‘window’ of when the damages happened. For argument’s sake let’s say February 1, 2019 – April 30, 2019 (or whenever the policy is put into the place by the council).

All receipts of work would have to have a legitimate time stamp or date on them, or would be subject to being thrown out.

Who would review the receipts? An employee board would have to be formed from different departments to review the receipts and determine if the work is ACTUALLY from pothole damage. For example if you had a bill for tire repair, oil change and replacing a windshield wiper, you would only be reimbursed for the tire repair. There would also have to be an open appeal process if you feel you were not compensated correctly.

Like I said, this could all easily be done by the policy makers (the city council) and would go a long way in rebuilding trust with citizens who have endured damages. The city council could choose to do nothing and let the mayor’s office handle the legal fiasco and ramifications, but if they get a head of this and put a fair process in place, this could go a lot smoother, unlike our roads.

UPDATE: Omaha has agreed to pay for pothole damages, full story HERE.

**UPDATE II: Many government entities have special processes which must be followed prior to suing them for damages. These processes are ostensibly created for other reasons but almost always have the effect of creating complex hoops which must be jumped through prior to making a financial claim for damages against them or suing them. You lose if you don’t jump through one of the special hoops. Many of the processes also shorten the statute of limitations which would normally apply. South Dakota has such a process and it is embodied in Chapter SDCL 3-21.

You must provide written notice to certain individuals (SDCL 3-21-x) and you must do so within 180 days of the incident event per SDCL 3-21-x. The actual South Dakota Notice of Claim law is at this link https://sdlegislature.gov/statutes/Codified_laws/DisplayStatute.aspx?Statute=3-21&Type=Statute .

When providing notice of damages, it is always a good business practice to be as specific as possible regarding the location, the time, the date, the persons involved and what happened.

Remember also, like most governments, the South Dakota executive, legislative and judicial branches agree that they should be allowed to lie to you without consequence but that it should be unlawful for you to lie to them. In other words, be as short and very clear with your facts. You do not need to give all detail in this form but do not stretch the truth. Be prepared to supply photos, invoices, medical claims and other information supporting your position.

This form was created by examining several forms filed with the City and using the language. The form provided is a downloadable, fillable Adobe type PDF document. When opened in an Adobe type Reader program you can type in your information. By filling out the form, two copies will be created. Sign both copies and save one for your records.

You may desire to mail the notice using a method that documents the delivery of the notice to protect yourself from a later claim you did not mail the notice. A signed witness statement to the delivery to the mayor’s office or USPS certified mail to the mayor.

There are potentially severe consequences for not providing the required notice correctly. If you have any questions you should contact an attorney.

CLICK TO ENLARGE THUMBNAIL OF WHAT THE FORM LOOKS LIKE, TO FILL OUT THE FORM CLICK ON THE PDF LINK IN THE BEGINNING OF THIS POST, SAVE TO YOUR DESKTOP.