Bar News - August 16, 2017
Workers’ Compensation and Personal Injury Law: Potential Untapped Opportunities in Public Roadway Claims
By: Anthony Carr
The starting point for any potential personal injury claim against a municipality is RSA 507-B:2.
This statue provides that there must be “a nexus between the injury and a governmental unit’s ownership, occupation, maintenance, or operation of a motor vehicle or premises” or there will be no opportunity for recourse. Dichiara v. Sanborn Reg’l Sch. Dist. (NH, 2013).
In Dichiara, the plaintiff’s claims for damages suffered during a basketball practice were dismissed as against the municipality because they did not have a sufficient nexus with the town’s control of the premises. Here, we start with the good news that public roadway claims will almost always meet this nexus, which at least provides the opportunity to meet an evidentiary burden and maintain a viable claim.
As it relates to the evidentiary burden for public roadway claims, RSA 507-B:2 further states: “provided, however, that the liability of any governmental unit with respect to its sidewalks, streets, and highways shall be limited as provided in RSA 231.” Thus, the true threshold issue in public roadway cases is determining whether one or more of a plaintiff’s claims should be subject to RSA 231, and its harsh requirements. Counsel should not concede that RSA 231 applies in every public roadway case.
In many instances, the litigation of a public roadway claim will call for a two-pronged approach:
- Counsel should assume that RSA 231 will apply to all of their plaintiff’s claims and focus pre-suit discovery on meeting RSA 231:92 in order to survive a motion to dismiss;
- Counsel should simultaneously develop claims and arguments that avoid the applications of RSA 231. Counsel may consider pleading multiple claims in the alternative to preserve all available arguments.
Developing a Prima Facie
Case Per RSA 231
When RSA 231:92 applies to a public roadway claim, plaintiffs must establish that: 1) the municipality had “actual notice or knowledge of [the] insufficiency” and was “grossly negligent or exercised bad faith in responding or failing to respond to such actual knowledge;” and/or 2) a municipal employee created the hazardous condition through an intentional act in the scope of his employment, acting with either gross negligence or reckless disregard of the hazard.
Counsel should focus their pre-suit discovery toward meeting these requirements, because RSA 231:92 II further states the complaint “shall be dismissed unless the complaint describes with particularity the means by which the municipality received actual notice of the alleged insufficiency, or the intentional act which created the alleged insufficiency.”
Bowden v. Comm’r, New Hampshire Dep’t of Transp. (NH, 1999) further makes it clear that naked legal conclusions are not enough, and there must be factual allegations of actual notice. In Bowden, a motorcyclist’s claims against the New Hampshire Department of Transportation for injuries resulting from a defect in the roadway were dismissed because the only factual allegations he made were with regard to the municipality’s post-injury knowledge of the insufficiency, as opposed to pre-injury knowledge, which would have carried with it an opportunity to respond.
To establish pre-injury actual notice, counsel should make use of all available pre-suit information. When trying to identify potential intentional acts by a municipal employee that may have contributed to the hazard, consider retaining one or more experts. In order to survive a motion to dismiss, counsel should exhaust all potential sources of pre-suit information, and draft the complaint’s factual allegations regarding RSA 231 as precisely as possible.
Public Roadway Claims That
Fall Outside RSA 231
To develop claims that might fall outside RSA 231, counsel should first appreciate the public policy behind the limited liability afforded by this statute. RSA 231 was first enacted to address “the [municipality’s] limited financial resources, the land area and the scope of responsibility of local communities,” which makes it “impractical to expect that the roads and sidewalks will be routinely patrolled or subject to preventative maintenance.” The court’s decision in City of Dover v. Imperial Cas. & Indem. Co., (NH, 1990) states that “…[W]hen a municipality creates or is aware of a problem which could result in serious injury and then acts irresponsibly in failing to correct the problem,” recourse should still be available.
In the current RSA 231, the NH Legislature trumped up the above language from City of Dover, in particular by requiring gross negligence (as opposed to “acts irresponsibly”) even when the municipality creates the problem or has actual knowledge of it.
It is worth noting that the New Hampshire Supreme Court has not addressed the question as to whether, pursuant to its holding in City of Dover, Part I, Article 14 of the State Constitution requires that a municipality which has actual notice of an insufficiency in its highways and sidewalks be held to a standard of ordinary negligence, so long as it has had an adequate opportunity to correct the condition, protect travelers from injury, or warn travelers of the hazard. This argument was raised in Cloutier v. City of Berlin (NH, 2006), however the issue was not properly preserved for failure to object to the jury instruction at trial.
Similarly rooted in the Supreme Court’s holding in the City of Dover is the argument that it is unconstitutional to deprive an injured plaintiff a right to recover when a municipality creates the insufficiency through its own conduct and fails to cure the hazard it created, even in the absence of gross negligence. Due to the difficulty some plaintiffs may face in establishing actual notice, counsel may only be able to show that one or more intentional, negligent acts by a municipal employee created the hazard. It may be unconstitutional to apply RSA 231 in such cases, especially whereas the NH Supreme Court has stated, “In determining whether municipal liability can be limited, the right of an injured plaintiff to recover must be balanced against the competing interests of the municipality” (Opinion of the Justices; NH, 1991).
This balancing test should form the core of any argument to maintain a viable public roadway claim: Is it fairer to deprive a particular plaintiff of his legal right to a remedy on account of preserving municipal resources, or is it fairer to hold the municipality liable for their case-specific conduct? To advance this argument, counsel should in part investigate the circumstances of the injury to determine if they truly implicate the challenges a municipality faces in trying to rid public roadways of hazards; otherwise, the deprival of a plaintiff’s legal right to a remedy would be arbitrary. In line with RSA 231:92(1)(c), identify any and all intentional acts by the municipality that contributed to the injury, even if they’re not coupled with gross negligence.
Once counsel has finished pre-suit discovery and identified potential claims that could fall outside RSA 231, the final steps are drafting a complaint that can survive a motion to dismiss, and developing a discovery plan that will allow one or more claims to defeat summary judgment.
Anthony C. Carr is a member of the personal injury team at Shaheen & Gordon and is based in the firm’s Manchester, NH, office.