2005-342 DEBRA A. CLOUTIER v. CITY OF BERLIN

The plaintiff, Debra A. Cloutier, sued the defendant, City of

Local Government Center, as amicus curiae. Paul G. Sanderson, staff attorney, of Concord, by brief, for The N.H.

brief and orally), for the defendant. Wadleigh, Starr & Peters, P.L.L.C., of Manchester (John A. Lassey on the

Jr. on the brief, and Mr. Hall orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Hall Stewart, P.A., of Manchester (Michael P. Hall and John B. Kenison,

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2005-342 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Coos Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as was deficient. p. 2 and (2) even if the statute is applicable, the language of the instruction itself erroneous because: (1) RSA 231:92-a is not applicable to the facts of this case;

weather instruction, given pursuant to RSA 231:92-a (Supp. 2005), was

not applicable in this case. Finally, she argues that the trial court’s inclement regardless of the existence of liability insurance coverage, RSA 231:92, I(b) is from asserting because it had liability insurance. Next, she argues that,

followed. 2 favor of the City. The plaintiff’s post-trial motions were denied and this appeal the intersection where the accident occurred. The jury returned a verdict in

provisions of RSA 231:90 through :92 inapplicable to a municipality which has personal injuries and property damage. 2002) (current version at RSA 507-B:7-a (Supp. 2005)), the City was prohibited

heavy rainfall. located on or near long slopes at other locations in the City, usually during officials of partial and complete manhole cover displacement at manholes

should have anticipated and guarded against manhole cover displacement at

The plaintiff first argues that RSA 412:3 renders the municipal liability or collided with the displaced manhole cover. As a result, the plaintiff suffered (1993) are “immunity defenses,” which, pursuant to RSA 412:3 (1998) (repealed plaintiff drove through the intersection, she either drove over the open manhole I. RSA 412:3 rainstorm, excess water displaced a manhole cover in the intersection. As the

this particular intersection. There had, however, been reports made to City

manhole cover displacement at similarly situated manholes and, accordingly, it manhole cover to become displaced. She alleged that the City was aware of resulted from the City’s failure to correct the conditions that caused the :92-a (1993 & Supp. 2005). She argues first that RSA 231:90 through :92 the jury regarding the municipal liability provisions in RSA 231:90 through Rockingham Streets in Berlin. A heavy rainstorm was just ending. During the The plaintiff contends on appeal that the trial court erred by instructing

slope. There had never before been a reported manhole cover displacement at

After the accident, the plaintiff sued the City, alleging that her damages

the plaintiff was traveling in her vehicle through the intersection of Grafton and

The intersection of Grafton and Rockingham Streets is located on a

The record reflects the following facts. On the night of August 7, 2000,

reach the issues raised in the City’s cross-appeal. affirm the trial court’s denial of the plaintiff’s post-trial motion and do not such action to the extent that it exceeds such limit. p. 3 whichever is higher, and the court shall abate any verdict in any the policy limit or the limit specified in RSA 507-B:4, if applicable,

governmental units defined in RSA 507-B, liability shall not exceed

to include.

of coverage specified in the policy of insurance or as to however, that liability in any such case shall not exceed the limits that of [a] private corporation is set forth by statute; provided,

statutory standard of care.”

legislature might have said or add language that the legislature did not see fit

the City to rely upon RSA 231:90 through :92 in its defense.

advanced by the entire statutory scheme. private corporation except when a standard of care differing from

concluded that RSA 231:90 through :92 “establish[] such an applicable statutory standard of care differing from that of a private corporation.” It it for further indication of legislative intent, and we will not consider what the is nonetheless entitled to have its liability determined under an applicable

considered as a whole.

corporation, and thus trigger the exception contained in RSA 412:3 to permit

legislature’s intent in enacting them, and in light of the policy sought to be history to aid our analysis. functions, and its liability shall be determined as in the case of a Id. Our goal is to apply statutes in light of the damages resulting from the performance of governmental Id. If a statute is ambiguous, however, we consider legislative be allowed to plead as a defense immunity from liability for

When a statute’s language is plain and unambiguous, we need not look beyond here, a defendant municipality has procured insurance for the risk at issue, it where possible, ascribe the plain and ordinary meanings to the words used. Id.

final arbiters of the legislature’s intent as expressed in the words of the statute novo. Carlisle v. Frisbie Mem. Hosp., 152 N.H. 762, 773 (2005). We are the 231:90 through :92 set forth a standard of care differing from that of a private The interpretation of a statute is a question of law, which we review de them because it has liability insurance. The City, however, argues that RSA the meaning of RSA 412:3, and thus the City is prohibited from relying upon

of insurance], the insuring company or . . . [municipality] shall not

The trial court interpreted RSA 412:3 to provide that “even where, as

The plaintiff argues that RSA 231:90 through :92 are immunity defenses within

account of a risk [for which the municipality has procured a policy

In any action against . . . [a municipality] to enforce liability on

in pertinent part: liability insurance. RSA 412:3, at the time of the plaintiff’s accident, provided, with its current level of public use. p. 4 other highway or sidewalk, or to a level of service commensurate construct, maintain or repair it to the same standard as some

and weather conditions.

“insufficient” merely by reason of the municipality’s failure to

location of such highway . . . and the nature of such insufficiency. highway . . ., including any warning signs, and prevailing visibility prudent as determined by the condition and state or repair of the posted regulations, and in a manner which is reasonable and

hidden hazard as set forth in paragraph II, be considered

of the relevant provisions in turn. provision is “entangled with prohibited immunity defenses.” We examine each RSA 231:90. notice shall be signed and shall set forth in general terms . . . the establishes a standard of care, it cannot apply under RSA 412:3 because each upon such highway at posted speeds . . ., in obedience to all

more stringent local ordinance or regulation; or vehicles permitted on such . . . highway by state law or by any III. A highway . . . shall not, in the absence of impassability or

officials], and a copy of said notice to the town or city clerk. The plaintiff suggests that even if any provision in RSA 231:90 through :92 notice of such insufficiency to one of the [designated municipal municipality shall be insufficient, any person may give written discoverable or reasonably avoidable by a person who is traveling (b) There exists a safety hazard which is not reasonably

(a) It is not passable in any safe manner by those persons or II. [A] highway . . . shall be considered “insufficient” only if:

:92 set forth a defense of immunity or a statutory standard of care. The I. Whenever any class IV or class V highway . . . in any

231:92, I(a). It provides, in pertinent part, case of a private corporation “insufficiency” and describes the form of written notice required by RSA functions,” and further provides that its liability “shall be determined as in the RSA 231:90, entitled “Duty of Town After Notice of Insufficiency,” defines from liability for damages resulting from the performance of governmental

The parties dispute whether any of the provisions in RSA 231:90 through

of [a] private corporation is set forth by statute.” RSA 412:3 (emphasis added).

municipality with insurance coverage may not “plead as a defense immunity The language of RSA 412:3 is plain and unambiguous. It provides that a the part of the municipality. It is, therefore, not an immunity provision.

p. 5 notice or a lack of a statutory “insufficiency” will result in limited liability on liability. Standing alone, RSA 231:91 does not provide that a lack of written care which establishes municipal liability, but it does not expressly limit such

by RSA 231:90, II.

insufficiency, RSA 231:91, II. At most, RSA 231:91 sets forth a standard of

dispatch until the highway . . . is no longer insufficient, as defined

231:91, I, and, if it fails to do so, will be liable for any injury caused by that municipality is required to respond to a written notice of an insufficiency, RSA does not limit the liability of municipalities; rather, it provides that a

and shall implement such plan in good faith and with reasonable

disagree that RSA 231:91, standing alone, is an immunity statute. RSA 231:91 provides, in pertinent part,

hours thereafter, develop a plan for repairing such highway . . . persons by day or night of such insufficiency, and shall, within 72 immediately cause proper danger signals to be placed to warn notice, subject to [statutory limitations]. damage proximately caused by the insufficiency identified in the

for municipalities which have received written notice of insufficiencies.” We RSA 231:92, entitled “Liability of Municipalities; Standard of Care,”

that no such insufficiency exists, the municipality shall

shall be liable in damages for all personal injury or property

plaintiff concedes, however, that RSA 231:91 “establish[es] a standard of care well as the liability-limiting written notice requirements of RSA 231:90.” The because it relies on the narrow liability-limiting definition of ‘insufficiency’ as The plaintiff argues that RSA 231:91 “is primarily an immunity statute

highway agents or street commissioners determine in good faith

II. If the municipality fails to act as set forth in paragraph I, it

insufficiency,

provision nor an immunity provision.

I. Upon receipt of such notice of insufficiency, and unless the

from a failure to respond as required. RSA 231:91 provides, in pertinent part,

see RSA 231:90, I, and provides for municipal liability resulting

RSA 231:91 describes the municipality’s duty to respond to a notice of

notice,” RSA 231:90, I. Standing alone, it is neither a standard of care does nothing more than define “insufficiency,” RSA 231:90, II, III, and “written (insufficiencies),” thus creating an immunity defense. However, RSA 231:90 care but rather limits a municipality’s liability to narrowly defined hazards The plaintiff argues that RSA 231:90 “does not establish a standard of highways. p. 6 municipalities in the construction, maintenance, and repair of public

RSA 231:92, I, establishes a special standard of care applicable to

response to a municipal official’s actual notice or knowledge of an insufficiency, notice of an insufficiency, or it is grossly negligent or it acts in bad faith in things, it fails to act in accordance with RSA 231:91 upon receipt of a written

immunity provision. By providing that a municipality “

is applicable to municipalities. By providing that a municipality may be liable plain language and the plain language of RSA 412:3 whether the legislature Because RSA 231:92, I, assumes this dual role, it is unclear from its

immunity upon them. RSA 231:92, I (emphasis added).

hazard.

contained in RSA 231:90.” We agree that RSA 231:92, I, is a municipal

establishes a standard of care different from that of a private corporation that However, the plaintiff concedes that RSA 231:92, I, simultaneously

limited liability to municipalities and, in essence, confers some degree of . . . unless” certain statutory requirements are met, RSA 231:92, I, provides acting with gross negligence, or with reckless disregard of the shall not be held liable the scope of his official duty while in the course of his employment, ‘insufficiency’ as well as the liability-limiting written notice requirements by an intentional act of a municipal officer or employee acting in because it, like RSA 231:91, relies on the liability-limiting definition of The plaintiff argues that RSA 231:92, I, “is primarily an immunity statute actual knowledge; or or exercised bad faith in responding or failing to respond to such provisions or whether they set forth a standard of care. written notice pursuant to RSA 231:90, and were grossly negligent 231:92, we do not consider whether the remaining paragraphs are immunity Because the jury in this case was instructed regarding only paragraph I of RSA provided by RSA 231:91; or insufficiency as set forth in RSA 231:90, but failed to act as

by RSA 231:90, and: such injury or damage was caused by an insufficiency, as defined construction, maintenance, or repair of public highways . . . unless (c) The condition constituting the insufficiency was created

notice or knowledge of such insufficiency, by means other than (b) [Certain municipal officials or employees] had actual

(a) The municipality received a written notice of such

to recover for personal injury or property damage arising out of its I. A municipality shall not be held liable for damages in an action that constitutes a breach of such duty. The amount of any insurance available

p. 7 version at RSA 507-B:7-a (Supp. 2005)). We agree with the argument of the be determined as in the case of a private corporation.” RSA 412:3 (1983). include any such exception, providing only that a municipality’s liability “shall

change the legal duty owed to users of highways, or change the type of conduct

231:90 through :92, as part of Senate Bill 151-FN. corporation,” within the meaning of RSA 412:3 (1998) (repealed 2002) (current

by statute.” Laws 1991, 385:8. Prior to this amendment, RSA 412:3 did not the only section of Senate Bill 151-FN which is labeled as a standard of care.

specifically to RSA 231:92. owned airport runways and taxiways. sidewalk liability, consistent with the constitution.” Laws 1991, 385:1. that the legislature intended the exception added to RSA 412:3 to refer premises, except public sidewalks, streets, highways or publicly Senate Bill 151-FN. Viewing the legislation as a whole, however, it appears ownership, occupation, maintenance or operation of . . . [a]ll its intention that “[t]he presence or absence of liability insurance does not amicus that, with the 1991 amendment to RSA 412:3, the legislature expressed

thereafter, the legislature repealed and reenacted RSA 507-B:2, as well as RSA fact, establish “a [statutory] standard of care differing from that of [a] private See Laws 1991, 385:5. We thus conclude that RSA 231:90 through :92 do, in when a standard of care differing from that of [a] private corporation is set forth legislation, entitled “Municipality Standard of Care,” created RSA 231:92 and is

provide municipalities with the greatest possible protection from highway and revision to RSA 412:3 to interact with the other statutory provisions created by caused by its fault or by fault attributable to it, arising out of The legislative record does not reveal how the legislature intended the

and highways violated Part I, Article 14 of the State Constitution. Shortly

Senate Bill 151-FN also amended RSA 412:3 to add the phrase “except

Bill 151-FN prior to its enactment). The purpose of Senate Bill 151-FN was “to see also recover for bodily injury, personal injury or property damage Opinion of the Justices, 134 N.H. 266, 271 (1991) (considering Senate

provided, in pertinent part: (1990), we held that the exception in RSA 507-B:2 for public sidewalks, streets, In City of Dover v. Imperial Casualty & Indemnity Co., 133 N.H. 109, 120

A governmental unit may be held liable for damages in an action to

Prior to 1991, RSA 507-B:2 (1983) (repealed and reenacted 1991)

N.H. at 773. protections. We thus turn to legislative history for guidance. See Carlisle, 152 intended that insured municipalities be able to avail themselves of its addressing the plaintiff’s concerns. p. 8 however, are reserved for the legislature, and we therefore leave to it the task of

protection from highway and sidewalk liability, harshness of the sovereign immunity rule.” Such matters of public policy,

knowledge of the insufficiency. She contends that, pursuant to our holding in negligent or exercised bad faith in responding or failing to respond to its

legislature intended to provide municipalities with “the greatest possible insurance purchased by [municipalities], thus helping to mitigate the and sidewalks: namely, that [injured] citizens . . . can be compensated by recognized justifications for allowing some degree of immunity for highways

from injury, or warn travelers of the hazard. She contends that, because the it has had an adequate opportunity to correct the condition, protect travelers highways and sidewalks may be “illusory and [may] negate one of the long-

regarding RSA 231:92, I(b), which provides that a municipality having actual,

repair of public highways and sidewalks. 231:90, RSA 231:91, and RSA 231:92, I. any circumstances, not only with respect to the construction, maintenance, or highways and sidewalks be held to a standard of ordinary negligence so long as instructing the jury with respect to the municipal liability provisions of RSA applies to an insured municipality’s assertion of an immunity defense under requires that a municipality which has purchased to guard against the risk of injury or damage involving hazardous actual notice of an insufficiency in its City of Dover, 133 N.H. at 120, Part I, Article 14 of the State Constitution

private corporation,”

Next, the plaintiff argues that the trial court erred by instructing the jury

II. Applicability of RSA 231:92, I(b)

In light of the foregoing, we conclude that the trial court did not err in insured municipalities asserting immunity defenses.” We disagree. RSA 412:3 under our interpretation of RSA 231:90 through :92 and RSA 412:3, insurance

147 N.H. 634, 641-42 (2002). lower standard of care with respect to its highways and sidewalks than a Cf. Minuteman, LLC v. Microsoft Corp.,

not set forth a standard of care different from that of a private corporation.

and RSA 412:3 “render[s] meaningless [RSA 412:3]’s prohibition against legitimate public policy concern, as stated by the plaintiff in her brief, that

Although we have clearly stated that “a municipality may be held to a

prohibition remains applicable under circumstances in which a statute does

The plaintiff argues that this interpretation of RSA 231:90 through :92

recoverable from the municipality if it is in fact found to be a tortfeasor.” only serves to determine the amount of damages that may, upon proof, be in good faith by the officials responsible for such policy . . . .

p. 9 instruction.

inclement weather maintenance policy or set of priorities adopted gross negligence or reckless disregard of the hazard, of a winter or mitigating such hazards is the result of its implementation, absent

not afforded an opportunity to consider her current objection to the

the jury that “a municipality may not be held liable for damages arising from

vagueness” because it does not define “gross negligence.” The trial court was instruction itself was deficient. We address each argument in turn. insufficiency under RSA 231:92, I(a); and (3) RSA 231:92, I(b) is “void for inapplicable because the City received “sufficient written notice” of the alleged

such hazards are caused solely by snow, ice, or other inclement sidewalks, even if it has actual notice or knowledge of them, when The trial court, based upon the inclement weather provision, instructed from insufficiencies or hazards on public highways, bridges, or

RSA 231:92-a.

to the facts of this case; and (2) even if it is applicable, the language of the

existence of liability insurance, pursuant to RSA 412:3; (2) RSA 231:92, I(b) is

[A] municipality . . . shall not be held liable for damages arising

The inclement weather provision provides, in pertinent part:

was erroneous because: (1) the inclement weather provision is not applicable instruction, given pursuant to RSA 231:92-a (the inclement weather provision), argued only that: (1) RSA 231:90 through :92 are inapplicable due to the Finally, the plaintiff argues that the trial court’s inclement weather

is grounded in common sense and judicial economy. III. The Inclement Weather Instruction

preserved for our review. See State v. Blackmer, 149 N.H. 47, 48 (2003).

Cf. Broughton, 152 N.H. at 552. Therefore, the issue has not been

plaintiff did object to instructing the jury regarding RSA 231:92, I(b), she

affords the trial court an opportunity to correct any error it may have made and review. Broughton v. Proulx, 152 N.H. 549, 552 (2005). This requirement contemporaneous objection during trial to preserve an issue for appellate It is well established that a party must make a specific and

however, failed to object to the instruction on this basis when it was given. municipality had ample actual notice and opportunity to repair.” The plaintiff, 231:92[, I(b)] would be applied in a case like the present one where the “the legislature did not intend that the gross negligence standard of RSA constitution,” Laws 1991, ch. 385 (emphasis added), we should conclude that support the giving of [the inclement weather] p. 9 instruction.”

p. 10 properly made acquainted.” 89 C.J.S. tending to support the supposed state of facts with which the jurors are 10

evidence supporting the applicability of the instruction to the facts of the case. argument that the hazard of manhole cover displacement was [this] case concerning the rain event at issue and its effect was sufficient to injuries.” We disagree. issue.

trial court is justified in giving the instruction where “there is testimony

by inclement weather, there was also testimony tending to support the

Generally, a trial court may give a jury instruction so long as there is some Here, while there may have been testimony to support the plaintiff’s verdict and for a new trial. The trial court concluded that “the evidence in applicability of the inclement weather instruction in her motion to set aside the also a major cause of the displacement, the resulting collision, and plaintiff’s caused solely by inclement weather. See Lindberg v. Swenson, 95 N.H. 184, 186 (1948). had plenty of time to anticipate.” The plaintiff again raised her objection to the the evidence, however, it is error for the trial court to instruct the jury on the municipal liability is predicated upon a finding that the hazard at issue is 88 N.H. 164, 165-66 (1936). If the predicate factual finding is not supported by

instruction is predicated upon the jury’s finding of a fact that is in dispute, the or not a particular jury instruction is necessary. See Vachon v. New England Towing, 148 N.H. 429, 433-34 (2002). When the

caused solely by inclement weather is a factual issue for the jury to decide.

creating a hazard but rather the situation of a preexisting hazard that the City The applicability of the inclement weather provision’s limitation on

See id. weather instruction in this case for an unsustainable exercise of discretion. 331, 334 (2005). We review the trial court’s decision to give the inclement

It is within the sound discretion of the trial court to determine whether

manhole cover was caused only in part by heavy rain, and the failure of the city of this case because this was not the issue of a sudden ice, snow or rainstorm apply to the facts of this case “because here the hazardous displacement of the that she believed that RSA 231:92-a “does not apply under the circumstances The plaintiff contends that the inclement weather provision does not negligence in failing to remove such hazards.” The plaintiff objected, stating A. Applicability of the Inclement Weather Provision

inclement weather unless there is evidence of reckless disregard or gross hazards on public highways, bridges or sidewalks caused by snow, ice or other disagree.

p. 11 instruction as given was inappropriate to the circumstances of the case.” We inclement weather, was “sufficient to put the trial court on notice that the the instruction was inappropriate because the hazard was not caused solely by

review.

weather be sudden, unpredictable, or difficult to correct promptly. provision contains no requirement that the hazard caused by inclement 11

objection that she did make to the inclement weather instruction, arguing that

review. and contemporaneous objection during trial to preserve an issue for appellate

However, the plain and unambiguous language of the inclement weather

preserved for our review. See Blackmer, 149 N.H. at 48. language of the instruction. Cf. id. Therefore, the issue has not been see fit to include. “solely” when the instruction was given. She argues, however, that the was not afforded an opportunity to consider her current objection to the only the applicability of the inclement weather provision, and the trial court

Broughton, 152 N.H. at 552. Here, the plaintiff’s objection addressed

instruction on this basis, and thus failed to preserve her objection for appellate As stated above, it is well established that a party must make a specific

not the type of sudden weather event RSA 231:92-a was intended to address.” problem of which the [City] was well aware” and, accordingly, the hazard “was evidence showed that . . . displacement of manhole covers was a long-standing

consider what the legislature might have said or add language that it did not The plaintiff concedes that she did not object to the omission of the word

its instruction. The City argues that the plaintiff failed to timely object to the based upon the inclement weather provision by omitting the word “solely” from The plaintiff also argues that the trial court erred in instructing the jury

B. The Language of the Inclement Weather Instruction which do not allow time for corrective action.” She contends that “[t]he

look beyond it for further indication of legislative intent, and we will not 231:92-a. When a statute’s language is plain and unambiguous, we need not unsustainable exercise of discretion. See RSA court’s decision to give the inclement weather instruction was an was caused by heavy rain. Given this testimony, we cannot say that the trial

231:92-a “is to protect municipalities from liability for sudden weather hazards, find it inapplicable to her case. She argues that the rationale behind RSA The plaintiff urges us to consider the policy behind RSA 231:92-a and

Several City employees testified that manhole cover displacement in the City argument that the same hazard was caused solely by inclement weather. the rule.

plain error rule.

the third prong of the plain error rule. Therefore, we do not find error under

the error was prejudicial – that it affected the outcome of the proceeding.”

injuries. The plaintiff appears to have misconstrued the third prong of the appealing party whenever that party is seeking compensation for personal apparently contends that an error affects the substantial rights of the the outcome of the proceeding, and thus failed to satisfy her burden of proof on

affected the substantial rights of the plaintiff, he or she “must demonstrate that BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred.

by the New Hampshire Constitution.” (Quotation omitted.) The plaintiff omission of the word “solely” from the inclement weather instruction affected Emery, 152 N.H. at 787. Here, the plaintiff failed to demonstrate that the to cite to our decision in rights. However, she provides no argument in support of her contention except Generally, for a plaintiff to satisfy the burden of proving that an error

prove that the error affected substantial rights.

reputation of judicial proceedings.” rights; and (4) the error must seriously affect the fairness, integrity or public compensation for personal injuries is an important substantive right protected be an error; (2) the error must be plain; (3) the error must affect substantial to note parenthetically that the decision “recogniz[es] that the right to seek which a miscarriage of justice would otherwise result. Carson v. Maurer, p. 12 120 N.H. 925, 931-32 (1980), and

The plaintiff contends in her brief that the error affected her substantial

783, 787 (2005).

error in this case, and that the error was plain, the burden is on the plaintiff to

N.H. 732, 736-37 (2005). For us to find error under the rule: “(1) there must

the rule should be used sparingly, its use limited to those circumstances in to consider errors not brought to the attention of the trial court. Id. However, instruction for plain error. See Sup. Ct. R. 16-A. The plain error rule allows us Nevertheless, the plaintiff argues that we should review the trial court’s