2008-649, APPEAL OF THE NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION

The State appeals a decision of the New Hampshire Board

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Edith L. Pacillo, assistant attorney to press. Errors may be reported by E-mail at the following address: Kevin R. Gray, by brief and orally, pro se.

(New Hampshire Board of Claims) APPEAL OF THE NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION page is: http://www.courts.state.nh.us/supreme.

No. 2008-649 editorial errors in order that corrections may be made before the opinion goes Board of Claims Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 motion to reconsider, which was denied. p. 2 negligent. The Board awarded the claimant $1,300.00. The State filed a

would have to navigate around it anyway.

Board thus found that the State was 55% negligent and the claimant 45%

city indicated that the bridge being repaired has a six ton limit, so trucks included two “passenger car only” signs, but at the meeting with the city, the clearance was nine feet six inches ahead. Gosling testified that the initial plan there was inadequate clearance under the railroad bridge for his vehicle.” The of the U-Haul truck and on the bridge itself to have warned the claimant that the railroad bridge[,] . . . [and that] there was ample information within the cab

its detour plan, at the quarter mile and half mile marks, indicating the liability so that our government can govern.” negligent in not observing a sign directing trucks to turn prior to encountering essential, fundamental activities of government must remain immune from tort

unreasonable.” RSA 541:13 (2007). preponderance of the evidence before it, that such order is unjust or accept a jury’s verdict as to the reasonableness and safety of a plan of or vacated except for errors of law, unless the court is satisfied, by a clear judicial interference with legislative and executive decision-making, because to Concord, 157 N.H. 678, 684 (2008) (quotation omitted). “[I]t seeks to limit clearance sign. The State added two additional low clearance signs as part of Tarbell Adm’r, Inc. v. City of clearance bridge and the bridge itself had flashing beacons and another low addition to the detour signs, there were two pre-existing signs indicating a low was unfamiliar with the area.” The Board further found that “the claimant was Discretionary function immunity is “premised upon the notion that certain separation of powers. Gardner v. City of Concord, 137 N.H. 253, 256 (1993). immunity for discretionary functions is fundamental to our system of Initially, we address the State’s immunity argument. The existence of

“[T]he order or decision appealed from [the Board] shall not be set aside

negligent is against the weight of the evidence. discretionary function; and (2) the Board’s finding that the State was 55% consistent with the Manual on Uniform Traffic Control Devices (MUTCD). In fact deficient and did not give clear enough instructions to warn someone who State is immune from liability because the claims arise out of the DOT’s On appeal, the State argues that the Board erred for two reasons: (1) the

The DOT, with the assistance of its Bureau of Traffic, developed a detour plan The Board found that “the detour sign package used by the State was in Bureau, testified that Oak Street was closed because of bridge maintenance. hearing before the Board, Douglas Gosling, from the DOT Bridge Maintenance

were deficient. In response, the State asserted an immunity defense. At the The claimant filed with the Board, arguing that the State’s detour signs not provide for a specific truck route.

p. 3 indicating the bridge clearance. As the claimant testified, the detour plan did

should not be considered. The final detour plan included two additional signs instructed that, as a result, the detour was for passenger cars only and trucks normally use the closed road because of a weight limitation. The DOT was

immune.”);

signs. At the meeting with the City, the City explained that trucks cannot

guardrail on a roadway is conduct characterized by the high degree of

flashing beacon at the intersection of Wellington Road and By-Pass 28 is

additional changes. The initial detour plan included “passenger car only” The initial plan was then brought to the City of Dover, which requested assistance of its Bureau of Traffic, following the MUTCD in placing traffic signs. making choices with respect to public policy,” such that it is protected by discretionary functions and functions that are purely ministerial.” 202, 205 (1992) (“We do not doubt that the decision to place or not to place a discretionary immunity questions, we distinguish between planning or policymaking.”); DiFruscia v. N.H. Dept. of Pub. Works & Highways, 136 N.H. exercise of judgment and discretion and represent planning and (“Decisions regarding traffic control and parking regulations rest on the

Sorenson v. City of Manchester, 136 N.H. 692, 694 (1993)

(“As a discretionary function, the State’s determination whether to install a This is consistent with our cases on this issue. See Bergeron, 140 N.H. at 422

the preferred detour route. The DOT developed the detour plan with the We conclude that a detour plan involves “weighing alternatives and

of his office or employment.” RSA 541-B:19, I(c) (2007). “In resolving

Dover and the Town of Rollinsford. The municipalities provided the DOT with detour plan. He testified that the DOT initially held a meeting with the City of any state agency or a state officer, employee, or official acting within the scope Here, a DOT employee testified to the State’s process in developing the discretionary executive or planning function or duty on the part of the state or involves “the exercise or performance or the failure to exercise or perform a (quotation omitted). immune from liability.” Opinion of the Justices, 126 N.H. 554, 563 (1985) respect to public policy and planning, governmental entities should remain and judgment involved in weighing alternatives and making choices with obstruct normal governmental operations.” which caused the injury is one characterized by the high degree of discretion City of Manchester, 140 N.H. 417, 421 (1995). “When the particular conduct

The State and its agencies are immune from liability for conduct that

brackets omitted).

body which originally considered and passed on the matter would be to governmental services and prefer it over the judgment of the governmental p. 4 4

not address the State’s argument regarding the weight of the evidence.

implementation,

BRODERICK, C.J., and DALIANIS and HICKS, JJ., concurred.

liability. Because we conclude that the State is immune from liability, we need

see DiFruscia, 136 N.H. at 205, the State is immune from

Because the claimant challenges the State’s original plan rather than its

with respect to public policy and planning.” (quotation omitted)). discretion and judgment involved in weighing alternatives and making choices