As a heavy rainstorm was ending in August 2000, the plaintiff was driving through an intersection in Berlin. The heavy rain had displaced a manhole cover in the intersection, which the plaintiff either drove over or collided with, causing personal injury and property damage. The intersection is located on a slope. Heavy rain had never displaced the intersection’s manhole cover before, but other manhole covers near long slopes in the city had been displaced, usually by heavy rain.
The plaintiff sued the city, claiming that its failure to correct the conditions that caused the manhole cover to be displaced resulted in her injury. She alleged that the city was aware of the problem with similarly situated manhole covers and should have guarded against the manhole cover displacement at the intersection where the accident occurred.
After a trial, the jury returned a verdict in favor of the city. The plaintiff appealed to the Supreme Court. She argued that RSA 231:90 through 92-a are immunity defenses and that pursuant to RSA 412:3 the city was prohibited from asserting them because it had liability insurance. RSA 412:3 (which was repealed in 2002 and reenacted as RSA 507-B:7-a) provides that a municipality with liability insurance coverage cannot “plead as a defense immunity from liability for damages resulting from the performance of governmental functions” and that its liability “shall be determined as in the case of a private corporation except when a standard of care differing from that of [a] private corporation is set forth by statute.”
The Court discussed the difference between a “standard of care” and an immunity defense. At issue was whether RSA 231:90, 91, 92 and 92-a set forth a municipality’s standard of care regarding its highways, bridges and sidewalks, or whether they provide immunity defenses for municipalities.
The Court said that RSA 231:90, standing alone, is neither a standard of care or an immunity defense. It “does nothing more than define ‘insufficiency’ … and ‘written notice.’” When a highway is not passable in a safe manner or there is a safety hazard not reasonably discoverable, an insufficiency exists. The Court also said RSA 231:91 was not an immunity defense. It “describes a municipality’s duty to respond to a notice of insufficiency and provides for municipal liability resulting from a failure to respond as required.”
The Court said RSA 231:92 is both a standard of care provision and an immunity defense. It provides that a municipality shall not be liable for damages arising out of its construction, maintenance or repair of public highways unless the damage was caused by an insufficiency and the municipality failed to respond to notice of the insufficiency, or the insufficiency was created by an intentional act of a municipal officer or employee acting with gross negligence or reckless disregard of the hazard.
The Court examined the legislative history of the statutes and concluded that the legislature intended the exception provided in RSA 412:3 to refer specifically to RSA 231:92. “We thus conclude that RSA 231:90 through :92 do, in fact, establish ‘a statutory standard of care differing from that of a private corporation,’ within the meaning of RSA 412:3 … (current version at RSA 507-B:7-a).”
In addition, the Court said it agreed with the New Hampshire Local Government Center’s amicus that “the legislature expressed its intention that ‘the presence or absence of liability insurance does not change the legal duty owned to users of highways, or change the type of conduct that constitutes a breach of such duty. The amount of any insurance available only serves to determine the amount of damages that may, upon proof, be recoverable from the municipality if it is in fact found to be a tortfeasor.’” The prohibition against a municipality asserting immunity defenses when it has liability insurance coverage remains applicable to circumstances where a statute does not set forth a standard of care different from that of a private corporation, which RSA 231:90 through 92-a do regarding highways and sidewalks.
The plaintiff also argued that the inclement weather provision of RSA 231:92-a did not apply to the circumstances of this case. The statute provides that a municipality shall not be liable for damage arising from insufficiencies or hazards on public highways, bridges or sidewalks, even if it has actual notice of them, when such hazards were caused solely by snow, ice or other inclement weather.
The plaintiff argued that the statute doesn’t apply to her circumstances because there was no “sudden” snow, ice or rainstorm that created the manhole cover hazard and the insufficiency was not caused “solely” by the rainstorm but also by the city’s failure to correct manhole cover displacement, which it knew occurred in other locations.
The Court said, however, the language of the statute is plain and unambiguous and does not require that a hazard caused by inclement weather be sudden. It also said the trial court heard conflicting testimony about whether the rainstorm was the sole cause of the manhole cover displacement, therefore, it didn’t abuse its discretion when it instructed the jury on how to apply the inclement weather statute.