This case involved several important limitations on municipal tort liability. During the December 2008 ice storm, a power outage rendered inoperable a traffic control signal in Windham at the intersection of Route 28, a Class I state highway, and Route 111, a state-maintained Class II highway. On December 12, Windham police notified the state Department of Transportation (DOT) of the traffic hazard at 6:42 a.m., and the police received a report of a motor vehicle accident at the intersection at 1:08 p.m. At 11:30 that night, while the traffic light was still inoperable, the plaintiff Ford was severely injured in another accident at the intersection. He sued both the Town and the DOT for negligence. The Town moved to dismiss, arguing it had no duty to warn the public of any hazardous conditions on the State highways and no duty to maintain the highways. The State moved to dismiss on the grounds that it had “discretionary function immunity” to decide how best to allocate resources in response to the winter weather emergency. The trial court granted both motions to dismiss, and the plaintiff appealed.
No Town duty to warn on State highway. The Supreme Court held that this case was indistinguishable from Trull v. Conway, 140 N.H. 579 (1995). In Trull the Court held that a town could not be held liable in negligence for an accident on an icy State highway because the town had no control over the road or duty to repair it and therefore no duty to warn of icy conditions. The Court declined to overrule Trull.
No Town liability under RSA 507-B:2. RSA 507-B:2 provides that a municipality may be held liable for injuries arising out of “ownership, occupation, maintenance or operation of ... all premises....” The plaintiff contended that the Town “operated” and “occupied” the intersection by providing policing. However, the Court rejected the argument, pointing to the proviso clause of the statute, which states that liability for highways is limited to what is provided by RSA 231.
No Town liability under RSA 231:90 -:93. Although RSA 231:93 expressly states that a municipality has no duty with respect to maintenance or repair of Class I or state-maintained portions of Class II highways, the plaintiff argued that RSA 231:91 and :92 impose maintenance duties on the Town because they are not expressly limited to town-maintained Class IV and V highways. The Court disposed of this argument by invoking the rule of statutory construction that requires statutes to be read in context, not isolation. Taken as a whole, these statutes limit a municipality’s liability to “insufficiencies” on Class IV, V and town-maintained portions of Class II highways.
No Town liability under RSA 21-P:44. Finally, the plaintiff argued that the Town had a duty to respond to the emergency situation under the statute that requires the State and political subdivisions to use resources in emergency management “to the maximum extent possible.” Citing the “well-settled rule that to the extent two statutes conflict, the more specific statute, here RSA 231:93, controls over the more general statute, RSA 21-P:44,” the Court reiterated that “a municipality owes no duty of care with respect to class I and State-maintained portions of class II state highways.”
State discretionary immunity. Under discretionary function immunity, the State and its agencies are immune from liability for conduct that involves “the exercise or performance or the failure to exercise or perform a discretionary executive or planning function or duty on the part of the state or any state agency or a state officer, employee, or official acting within the scope of his office or employment.” RSA 541-B:19, I(c). (Municipalities also have discretionary function immunity.) The plaintiff argued that DOT failed to carry out a ministerial act, not a discretionary function, under section 4D.02D of the 2003 edition of the Federal Manual on Uniform Traffic Control Devices (MUTCD). The MUTCD is published by the United States Department of Transportation’s Federal Highway Administration under 23 Code of Federal Regulations, Part 655, Section F. It has been adopted by the DOT, and municipalities must also follow the MUTCD concerning erection, removal and maintenance of traffic control devices. RSA 47:17, VIII; 41:11. MUTCD Section 4D.02 provides “guidance” that the responsible agency “should” provide for alternative traffic direction during a period of failure. However, the Court held that the “guidance” portions of the document do not create mandatory duties. The MUTCD does not eliminate DOT’s discretion with regard to responding to traffic lights rendered inoperable because of severe, winter weather related widespread power outages. The DOT was protected by discretionary immunity.