2004-119, APPEAL OF THE NH DEPARTMENT OF TRANSPORTATION

centerline. low speeds, sideswiped one another within a few inches of the double yellow lane in a GMC van. While passing on the b ridge, the two vehicles, traveling at southbound travel lane. The claimant approached from the northbound travel with attached wing was scraping along the bridge’s right - hand curb line of the the accident, the pl ow truck’s yellow lights were activated and the fixed plow plowing operations on the two - lane road across a short bridge. At the time of winter storm. Milton Norcross, a full - time State employee, was engaged in accident on Route 16B in Ossipee. The accident occurred towards the end of a On February 2, 2003, the claimant was involved in a motor vehi cle

Bosch, for damages to her motor vehicle. We reverse. Board of Claims (Board) awarding compensation to the claimant, Mary Van Der BRODERICK, C.J. The State appeals a decision of the New Hampshire

attorney general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Mark P. Hodgdon, senior assistant

orally), for the claimant. Orr & Reno, P.A., of Concord (William L. Chapman on the brief and

No. 2004 - 119 Board of Claims

home page is: http://www.courts.state.nh.us/supreme. 9:00 a.m. on the morning of their release. The direct address of the court's reporter@courts.state.nh.us. O pinions are available on the Internet by goes to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion New Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any Reports. Readers are requested to notify the Reporter, Supreme Court of as well as formal revision before publication in the New Hampshire NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 2

on highways. N.H. RSA p. 2 265:6. 8. The State is subject to civil liability laws for work performed

the following: on the comparative fault o f the claimant. These findings and rulings included the exhibits, and [the] transcript,” and made findings of fact and rulings of law Following remand from this court, the Board “met, reviewed their notes,

(1997); see Appeal of Pritchard, 137 N.H. p. 2 291, 293 (1993). evidence before it, that such order is unjust or unreasonable.” RSA 541:13 errors of law, unless the court is satisfied, by a clear preponderance of the “the order or decision appealed from . . . not be set aside or vacated except for On appeal from the Board’s decision, th e standard of review requires that

identified no negligent act by the plow operator. fault between the parties cannot be rationally justified when the Board erroneous as a matter of law; and (3) that the Board’s finding of proportional the Board’s finding that the plow truck was not an emergen cy vehicle is did not raise the issue of comparative fault at the time of the hearing; ( p. 2 2) that and rulings, including: (1) that the Board erroneously concluded that the State The State’s supplemental brief challeng es several of the Board’s findings

accordingly. We then ordered supplemental briefing. accident and reduced the claimant’s damages pursuant to RSA 507:7 - d The Board determined that the claimant was forty - five percent at fault for the findings of fact and rulings of law on the comparative fault of the claimant. Following oral argument, we remanded the case for the Board to make

operator had crossed the yellow line. the State employee; and (4) whether the Board erred in finding that the plow sustained in the absence of a finding of unreasonable conduct on the part of claims of civil liability; (3) whether the Board’s award of damages could be whether the Board erred by concluding that RSA p. 2 265:6 (2004) did not apply to Board erred when it failed to address the compar ative fault of the claimant; (2) The State appealed, raising several issues including: (1) whether the

the State’s motion for rehearing without comment. come] into contact with and damage the claimant’s vehicle.” The Board denied yellow line while on the bridge and caused the front left portion of the pl ow [to that the State was negligent when the snow plow driver crossed over the double claim based upon a centerline violation, finding “that the Claimant ha[d] proved the damage to the vehicle was $ p. 3 3,000. After a hearing t he Board granted the The claimant filed a claim with the Board. The parties stipulated that 3

authorized under RSA 266:74.” Pursuant to RSA 266:74, I (2004): work upon a highway whenever such vehicle displays emergency lights as the right - of - way to any authorized vehicle obviously and actu ally engaged in RSA 265:6 - a, II (2004) provides that: “The driver of a vehicle shall yield

factor in causing the plow to hit Claimant’s van.” snowplow” a nd that “[t]he driver’s negligence was a substantial contributing “[t]he driver of the State snowplow was negligent in the operation of the State In addition, the Board granted the claimant’s requested rulings of law that

the collision, after observing the plow truck over the center line. 22. The Claimant did not take adequate evas ive action to avoid

. . . .

curbing. prior to the wing plow blade plowing against the right side 19. The State plow truck was across the double yellow line

curb for about two truck lengths before it came to rest. 18. The State plow truck wing blade was against the right side

and administrative rules. light[s] are considered emergency lights under N.H. statutes, 17. No determination is made as to whether yellow warning

. . . .

time of [the] accident. 15. The plow truck had yellow warning li ghts in operation at the

. . . .

to cross [the] bridge while staying within her travel lane. 12. Claimant’s lane had sufficient width for Claimant’s vehicle

. . . .

line. 10. The point of impact of the two vehicles was on the center

contributing factor to the accident. 9. The unreasonable speed of each vehicle was not a p. 4 4

provisions of this chapter relative to civil liability shall apply to reasonably necessary for the completion of such work. The a highway when a violation of any of such provisions is equipment while actually engag ed in work upon the surface of chapter shall not apply to persons, teams, vehicles and other Unless specifically made applicable, the provisions of this

liability as was made in this case.” RSA 265:6 provides: RSA 265:6, “violation of the rules of the road can support a claim for civil Despite these undisputed facts, the Board concluded that pursuant to

lane as was physically possible. right side curbing; thus the snow plow was as far to the right side of its travel sideswiping one another, the snow plow’ s fixed wing blade was scraping the action to avoid the collision. The evidence is clear that prior to the vehicles staying in its lane of travel and that the claimant did not take adequate evasive claimant’s lane had suffi cient width for her vehicle to cross the bridge while impact between the vehicles was on the center line of the roadway, that the 265:6 - a, II. The Board’s express findings reveal, however, that the point of lig hts, the claimant had a statutory obligation to yield the right - of - way. RSA actually engaged in work upon a highway,” displaying authorized emergency Given that the State snowplow was an “authorized vehicle obviously and

determines color of emergency lights by rule). safety rules. See RSA 266:7 p. 4 4, III (department of motor vehicles director emergency lights under the plain language of RSA 266:74 and department of administrative rules,” we hold that such lights are, as a matter of law, light[s] are considered emergency lights under N.H. statutes, and operating. Although the Board did not determ ine “whether yellow warning plow was actively plowing snow on the two - lane bridge with its amber lights There is no dispute that at the time of the accident the State - owned snow

N.H. Admin. Rules, Saf - C 3217.02(b)(9), (d)(3)(a). works department vehicles may be equipped with amber emergency light s. See In addition, rules promulgated by the department of safety provide that public

snow removal . . . . snow removal vehicles, while such vehicle is actively in use in operation except during an emergency, and in the case of private snow removal vehicles . . . . Emergency lights shall not be in town highway or public works departments . . . or . . . private provision shall not apply to vehicles of any . . . state, city, or emergency light to be driven on the ways o f the state. This It shall be unlawful for any motor vehicle equipped with an p. 5 5

NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.

matter of law in finding the State liable for damages. acted unreasonably. For these reasons, we hold that the Board erred as a did not find, nor on this record could it have found, that the plow operator identify any negligent act on the part of the State employee. Further, the Board standard of care owed by the State employee to the claimant, it failed to right - of - way to the State plow truck. Not only did the Board not identify a In this case, it was the claimant who had a statutory dut y to yield the

of the two vehicles was “on the center line.” subsequently found, following remand from this court, that the point of impact caused the plow to strike the claimant’s vehicle. However, the Board initial order that the snow plow driver had crossed the double yellow line an d Presumably, the Board’s finding of liability was based upon the finding in its

from such work. shall apply to such persons and vehicles when traveling to or such persons and vehicles, and all provi sions of the chapter