2011-262, Steven Ford v. New Hampshire Department of Transportation & a .

No. 2011-262 Devine, Millimet & Branch, P.A. Rockingham

the brief and orally), for defendant Town of Windham.

Department of Transportation. memorandum of law, and Mr. O’Neill orally), for defendant New Hampshire general, and Mark P. Hodgdon, senior assistant attorney general, on the Michael A. Delaney, attorney general (Kevin H. O’Neill, assistant attorney ___________________________ for the plaintiff. Law Office, P.C., of Andover, Massachusetts (Thomas C. LaPorte on the brief), and Jay M. Wolman on the brief, and Mr. D’Angelo orally), and Cossingham a.m. on the morning of their release. T D’Angelo & Hashem, LLC of Boston, Massachusetts (Stephen L. D’Angelo reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 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 goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as highways, which the Town neither owned nor had a duty to maintain. See

p. 2 motion, the Town averred that both Route 111 and Route 28 were state

the Town and DOT for negligence. Both defendants moved to dismiss. In its The accident caused the plaintiff to suffer severe injuries, and he sued

outages.”

there were “[n]o working lights at this intersection due to ice storm power

same intersection was reported to Windham police, who later reported that hazard in the area. At approximately 1:08 p.m., a motor vehicle accident at the storm. At approximately 6:42 a.m., Windham police notified DOT of a traffic

received notice that the intersection’s lights were inoperable because of the ice

classified as a class I highway. See Windham, Route 111 is classified as a class II highway, and Route 28 is The Town asserted that at the point where the two highways intersect in a “severe widespread winter weather emergency.” See discretionary function immunity to decide how best to allocate its resources in 2

Several hours before the accident occurred, both DOT and the Town had

that might have existed on them because of the December 2008 ice storm. See that would permit recovery. J & M Lumber & Constr. Co. v. Smyjunas lights at this intersection inoperable.

III, III-a or VI highways, or state maintained portions of class II highways.”).

In its motion, DOT contended, among other things, that it had

N.H. 714, 724 (2011). We assume the plaintiff’s factual allegations to be true

In reviewing a motion to dismiss on appeal, we examine whether the

this appeal followed. Transp., 159 N.H. 72, 74-75 (2009). The trial court granted both motions, and

Trull v. Town of Conway, 140 N.H. 579, 582 (1995); see also RSA 231:93.

highways). Because the accident occurred on these state highways, the Town vehicle at the intersection of Routes 111 and 28 in Windham. Earlier, a severe 2008, the vehicle in which the plaintiff was a passenger was struck by another RSA 229:5 (2009) (defining classification of the plaintiff’s writ as true. At approximately 11:30 p.m. on December 12,

231:93 (2009) (“Municipalities shall not be deemed to have any duty of care

For the purposes of this appeal, we accept the following allegations from

Transportation (DOT). We affirm. Town of Windham (Town) and the New Hampshire Department of Court (Nadeau, J.) dismissing his negligence claims against the defendants, CONBOY, J. The plaintiff, Steven Ford, appeals orders of the Superior maintain.” Id p. 3 conditions on a road over which it had no control and no duty to repair and

the time of the accident, we conclude that the town had no duty to warn of icy

other plaintiff. Id

that where they intersect in Windham, Routes 111 and 28 are class II and

“Under the common law of this State and the statutory scheme in existence at

vehicle, which slid across the center line and into another vehicle driven by the

Similarly here, the Town has averred, and the plaintiff has not disputed,

. at 582. Contrary to the plaintiff’s assertions, Trull the Town. The trial court decided that our decision in Trull

injuries on roads over which it exercises no control.” Hartman ruling that the fact that Route 113 is a class II highway was dispositive: highway. In Hartman. at 581. We disagreed with the Trull plaintiffs’ argument,

I. Negligence Claim Against Town 81. Shortly after the officer left the area, one of the plaintiffs lost control of his observed that a vehicle had slid on Route 113 because of black ice. Id. at 580- N.H. at 581. In Trull deciding this appeal only, we will accept that assumption., before the accident occurred, a town police officer warn of a dangerous condition of which it had actual knowledge. Trull, 140 plaintiff in this case, the Trull plaintiffs argued that the town had a duty to

relief. Id We first address the trial court’s dismissal of the plaintiff’s claim against, 125 N.H. at 37. may be liable for injuries occurring on roads under its control, but not for A. Trull, we reasoned that “[i]n certain circumstances, a town its police force had a duty to warn travelers about a defect in a class I state Hooksett, 125 N.H. 34 (1984), in which we held that neither a municipality nor see RSA 231:93. Trull is consistent with an earlier case, Hartman v. Town of therefore, no duty to warn of icy conditions on it. Trull, 140 N.H. at 581, 582; of a governmental entity’s duty to maintain a road. For the purposes of the town had no control over the road, no duty to repair and maintain it, and, negligence for an accident occurring on Route 113, a class II highway, because of the plaintiff’s claim. In Trull, we ruled that a town could not be held liable in

trial court’s dismissal if the writ’s allegations do not constitute a basis for legal

appear to assume that warning motorists about inoperable traffic lights is part Before addressing the parties’ arguments, we note that the parties

.

that tests the facts in the writ against the applicable law and will affirm the that are merely conclusions of law. Id. We then engage in a threshold inquiry favorable to him. Id. We need not, however, assume the truth of statements and construe all reasonable inferences to be drawn from them in the light most p. 4 4

inoperable traffic lights. Trull

becomes a mere exercise of judicial will with arbitrary and unpredictable

Town undertook the task of warning motorists on Routes 111 and 28 of the

the task of warning motorists about the icy condition. Trull

motorists of the dangerous condition caused by the inoperable lights. The Trull governing legal standards are open to revision in every case, deciding cases the public.” We rejected a comparable claim in Trull stare decisis demands respect in a society governed by the rule of law, for when Alternatively, the plaintiff urges us to overrule Trull. “The doctrine of

dangerous condition on a state highway. Id Likewise, here, on the facts alleged by the plaintiff, we cannot conclude that the (quotation omitted); see Restatement (Second) of Torts, supra § 323, at 135.

alleged by the plaintiffs did not allow us to conclude that the town undertook assumes a duty thereafter has a duty to act with reasonable care,” the facts travel and regulate traffic on Routes 111 and 28, they had a duty to warn “[t]his court has recognized the general tort principle that one who voluntarily At oral argument, he explained further that because the Town’s police officers, explaining that while intersection were inoperable and that the intersection was “heavily travelled.” assumed a duty to motorists on Routes 111 and 28 by “render[ing] services to next argues that the Town had a duty to warn motorists because it voluntarily Relying upon Restatement (Second) of Torts § 323 (1965), the plaintiff Because the plaintiff views Trull

storm. We do not find this distinction to be meaningful. [these] State highway[s] . . . does not create a duty to warn the public” about a Trull, “Merely because the town’s police officers travel and regulate traffic upon plaintiffs made a similar argument, which we rejected. As we explained in

municipal police officers had a duty to “act,” knowing that the lights at the revives two arguments that we rejected in Trull. First, he argues that

intersection of these two state highways were inoperable. See Routes 111 and 28, it also had no duty to warn motorists that the lights at the lights were rendered inoperable because of a power outage caused by an ice Trull, nature directly caused the icy conditions, while in this case, the traffic unavailing. He asserts, for instance, that Trull is distinguishable because in The plaintiff’s attempts to distinguish Trull from the instant case are

Id. (quotation omitted). is no legal duty, there can be no breach of duty, and no finding of negligence.” condition has not been corrected.” Trull, 1 p. 4 40 N.H. at 582. And, “[w]hen there condition[,] there is no actionable duty to warn users of a highway that the 231:93. As we concluded in Trull: “Where there is no duty to correct a

duty to maintain. Accordingly, because the Town had no duty to maintain class I state highways, respectively, which the Town does not own and has no p. 5 5 B. Statutory Bases for Duty to Warn

The interpretation of a statute is a question of law, which we review de

mistaken on all three counts. , the Town had a statutory

application or justification. Id come to be seen so differently, as to have robbed the old rule of significant arbiter of the intent of the legislature as expressed in the words of the statute novo a remnant of abandoned doctrine; and (4) whether facts have so changed, or. Billewicz v. Ransmeier, 161 N.H. 14 p. 5 5, 151 (2010). We are the final has not persuaded us that our decision in Trull

The plaintiff’s sole argument as to why we should overrule Trull analysis. Id RSA 21-P:44 (Supp. 2011) to warn motorists about the inoperable lights. He is precedent or overrule it, but the “well-reasoned” inquiry is not itself part of the duty imposed by RSA p. 5 507-B:2 (2010), RSA 231:90 to :93 (2009), and/or by The plaintiff argues that notwithstanding Trull analysis. Id

was wrongly decided.” Id invitation to do so. Demoulas Super Markets, 1 p. 5 59 N.H. 95, 103 (2009). We, therefore, decline his principles of law have so far developed as to have left the old rule no more than and of itself, justify overruling it. See must be overruled. Cf. Rallis v. which we do not, merely because an opinion is poorly reasoned does not, in Having failed to brief any of the four stare decisis factors, the plaintiff

.

invokes the four stare decisis factors to decide whether to adhere to the stare decisis is not one to be either rigidly applied or blindly followed. Id. Upon concluding that a case was poorly reasoned, the court then an opinion was poorly reasoned is merely the starting point for a stare decisis

the absence of some special reason over and above the belief that a prior case stare decisis requires a court to adhere even to poorly reasoned precedent in

workability; (2) whether the rule is subject to a kind of reliance that would lend in his opinion, it is badly reasoned. Even if we were to agree with the plaintiff, (1) whether the rule has proven to be intolerable simply by defying practical is that,

p. 5 533. was for that very reason doomed.” State v. Quintero

judgment, no single factor is wholly determinative, because the doctrine of

(quotation omitted). Thus, we will overturn a decision only after considering:

whether the ruling has come to be seen so clearly as error that its enforcement question is not whether we would decide the issue differently de novo, but (2003) (quotations omitted). “[W]hen asked to reconsider a holding, the results.” Jacobs v. Director, N.H. Div. of Motor Vehicles, 149 N.H. p. 5 502, 504 the limits on governmental liability set forth in RSA chapter 231. See p. 6 streets, and highways”; rather, RSA 507-B:2 must be read in conjunction with

does not, alone, govern the Town’s liability “with respect to its sidewalks,

occupied and operated them.” By its express terms, however, RSA 507-B:2

respect to the construction, maintenance or repair of class I, III, III-a or VI

argues that “[i]n policing the intersection and the roads, [the Town] both 507-B:2 . . . for operating and occupying the intersection in question.” He The plaintiff contends that “the Town . . . owed him a duty under RSA

provides that municipalities do not “have any duty of care whatsoever with

is set forth in RSA 231:90 through RSA 231:93. RSA 231:93 expressly The liability of municipalities with respect to “sidewalks, streets, and highways” vehicles, and all premises; provided, however, that the liability of Nothing in RSA chapter 231 imposes such a duty upon the Town, either.

(Emphasis added.)

of ownership, occupation, maintenance or operation of all motor

2. RSA chapter 231

with respect to Routes 111 and 28. not, as the plaintiff contends, in and of itself, impose any duty upon the Town v. Pembroke Sch. Dist. runways and taxiways shall be limited as set forth in RSA 422., 151 N.H. 455 (2004). Accordingly, RSA 507-B:2 does

damage caused by its fault or by fault attributable to it, arising out

1. RSA 507-B:2 of any governmental unit with respect to publicly owned airport highways shall be limited as provided in RSA 231 and the liability any governmental unit with respect to its sidewalks, streets, and policy sought to be advanced by the entire statutory scheme.” Id

isolation. Id action to recover for bodily injury, personal injury or property add language the legislature did not see fit to include. Id A governmental unit may be held liable for damages in an

RSA 507-B:2 provides:

omitted).

and therefore better able to understand the statutory language in light of the

. “In so doing, we are better able to discern the legislature’s intent,

interpret statutes in the context of the overall statutory scheme and not in

statute as written and will not consider what the legislature might have said or meanings to the words used. Id. We interpret legislative intent from the examine the language of the statute and ascribe the plain and ordinary considered as a whole. Appeal of Wilson, 161 N.H. 659, 662 (2011). We first highways. RSA 231:90, I, begins, “Whenever any class IV or class V highway p. 7 RSA 231:92, unlike RSA 231:90, do not refer explicitly to class IV and V

upon the Town with respect to Routes 111 and 28 because RSA 231:91 and

The plaintiff argues that RSA 231:91 and RSA 231:92 impose a duty

RSA 231:92-a.

proof to the contrary.

pursuant to such a policy or set of priorities, in the absence of district employees and officials shall be presumed to be acting officials responsible for such policy; and all municipal or school

hours thereafter, develop a plan for repairing such highway persons by day or night of such insufficiency, and shall, within 72 maintenance policy or set of priorities adopted in good faith by the

Upon receipt of such notice (Emphases added.)

immediately cause proper danger signals to be placed to warn reckless disregard of the hazard, of a winter or inclement weather the result of its implementation, absent gross negligence or district’s failure or delay in removing or mitigating such hazards is

sidewalk is no longer insufficient, as defined by RSA 231:90, II.

that no such insufficiency exists, the municipality shall

ice, or other inclement weather, and the municipality’s or school RSA 231:91, I, then provides:

of said notice to the town or city clerk.” (Emphasis added.) and with reasonable dispatch until the highway, bridge, or agents of the town, or the mayor or street commissioners of the city, and a copy bridge, or sidewalk and shall implement such plan in good faith

highway agents or street commissioners determine in good faith

knowledge of them, when such hazards are caused solely by snow, highways, bridges, or sidewalks, even if it has actual notice or damages arising from insufficiencies or hazards on public

may give written notice of such insufficiency to one of the selectmen or highway bridge or sidewalk thereon in any municipality shall be insufficient, any person

a municipality or school district shall not be held liable for

with respect to class IV and V highways: and V highways is set forth in RSA 231:90, :91, :92, and :92-a. However, even

duty of care with respect to the construction, maintenance or repair of class IV highways, or state maintained portions of class II highways.” A municipality’s p. 8 8

inoperable signal[s],” RSA 21-P:44 required it do so. In his reply brief, the

contends that because “[i]t was practicable for the Town to earlier address the

broadest requirements of acting ‘to the maximum extent practicable.’” He “The statute [RSA 21-P:44] uses the mandatory phrase ‘shall’ and imposes the “create[s] structures to enable response to an emergency situation.” He argues:

The plaintiff observes that RSA 21-P:44 is part of a statutory scheme that

emergency management organizations of the state upon request. and extend such services and facilities to the governor and to the

departments, offices, and agencies are directed to cooperate with

extent practicable, and the officers and personnel of all such agencies of the state and its political subdivisions to the maximum supplies, and facilities of existing departments, offices, and

isolation, but must read them in context. See highways in [a] municipality.” However, we cannot read these statutes in subdivisions of the state shall utilize the services, equipment, has no

refer to class IV and V highways, they, unlike RSA 231:90, apply “to all state agencies, and local executive officers of the political interpretation runs afoul of RSA 231:93, which provides that a municipality

The plaintiff argues that because RSA 231:91 and RSA 231:92 do not and Emergency Management”], the governor, executive heads of conditions are met. RSA 231:92, I. “insufficient, as defined by RSA 231:90, II.” Moreover, the plaintiff’s In carrying out the provisions [related to “Homeland Security

by warning motorists of the inoperable traffic lights. RSA 21-P:44 provides:

was caused by an insufficiency, as defined by RSA 231:90,” and certain 231:91 to “such highway” is a reference to the highways, which are insufficiencies in class IV and V highways. Similarly, the reference in RSA RSA 231:90, which, by the plaintiff’s own admission, apply only to respond to the emergency situation created by the ice storm of December 200 p. 8 8 The plaintiff contends that under RSA 21-P:44, the Town had a duty to

classes IV and V and town-maintained portions of class II highways. duty of care whatsoever with respect to highway classes other than

highways and sidewalks constructed thereupon unless such injury or damage damage arising out of its construction, maintenance, or repair of public liable for damages in an action to recover for personal injury or property 231:92, to “an insufficiency” are references to the insufficiencies described in 662. Thus, in RSA 231:91, the reference to “such insufficiency” and, in RSA

Rather, it provides, in pertinent part, that “[a] municipality shall not be held RSA 231:92 likewise does not expressly refer to class IV and V highways. fundamental to our system of separation of powers. Appeal of N.H. Dep’t of p. 9 I(c) (2007). The existence of immunity for discretionary functions is or official acting within the scope of his office or employment.” RSA 541-B:19,

or duty on the part of the state or any state agency or a state officer, employee,

on the matter would be to obstruct normal governmental operations.” Tarbell the judgment of the governmental body which originally considered and passed the failure to exercise or perform a discretionary executive or planning function immune from liability for conduct that involves “the exercise or performance or Under discretionary function immunity, the State and its agencies are

Appeal of N.H. Dep’t of Transp.

II. Negligence Claim Against DOT

state highways.

executive decision-making because to accept a jury’s verdict as to the particular conduct which caused the injury is one characterized by the high DOT was immune from liability. We disagree. remain immune from tort liability so that our government can govern.” Id, 159 N.H. at 74 (quotation omitted). “When the claim concerns DOT’s discretionary function and, on that basis, ruled that planning or discretionary functions and functions that are purely ministerial.” DOT. The plaintiff argues that the trial court erred when it found that his “In resolving discretionary immunity questions, we distinguish between statute, RSA 21-P:44. See conflict, the more specific statute, here RSA 231:93, controls over the general and brackets omitted). Adm’r, Inc. v. City of Concord, 157 N.H. 678, 684 (2008) (quotations, citation

duty of care with respect to class I and State-maintained portions of class II

(quotation omitted). “[I]t seeks to limit judicial interference with legislative and

the notion that certain essential, fundamental activities of government must Transp., 159 N.H. at 74. “Discretionary function immunity is premised upon We now turn to the trial court’s dismissal of the plaintiff’s claim against

is correct, for even if it is, it is a well-settled rule that to the extent two statutes

(Supp. 2011), RSA 231:93 specifically provides that a municipality owes no experienced certain “natural and human-caused disasters,” RSA 21-P:34 to the power, duty and authority of political subdivisions when the State has

We need not decide whether the plaintiff’s interpretation of RSA 21-P:44

facilities” to warn motorists about the inoperable traffic lights.

P governing “Homeland Security and Emergency Management” refer generally 654–55 (2010). Although RSA 21-P:44 and other provisions in RSA chapter 21-

RSA 21-P:44 by failing to use the State’s “services, equipment, supplies and plaintiff changes this argument somewhat by asserting that the Town violated p. 10 Manual on Uniform Traffic Control Devices (MUTCD), see 10

the category of discretionary functions entitled to . . . immunity.” Sorenson v. discretion and represent planning and policymaking. They fit squarely within personnel factors.” Such decisions “rest on the exercise of judgment and DOT was required to abide by section 4D.02D of the 2003 edition of the Federal

operational or ministerial decisions required to implement policy decisions).

choices and alternatives, involving safety, economic, equipment, debris and to carry out a ministerial act, not a discretionary function. He contends that The plaintiff argues that the negligence he alleges concerns DOT’s failure consideration of competing economic, social, and political factors, and

responding to severe winter weather . . . require numerous planning and policy explains: “Decisions regarding the setting of priorities and alternatives to storm is a discretionary function entitled to immunity. We agree. As DOT immunity applies, we distinguish between policy decisions involving the planning.” (quotation omitted)).

failure to do so constitutes a failure to implement State policy. See

resources in response to widespread power outages caused by a severe ice N.H. at 211 (explaining that in assessing whether discretionary function weighing alternatives and making choices with respect to public policy and

http://mutcd.fhwa.dot.gov/pdfs/2003r1r2/coverintrotoc.pdf, and that its page 4D-1 (2003) available at Admin., U.S. Dep’t of Transp., Manual On Uniform Traffic Control Devices, at

making choices with respect to public policy); Bergeron v. City of Manchester

DOT argues that deciding how best to plan and allocate limited State Our conclusion is consistent with our cases on this issue. See characterized by the high degree of discretion and judgment involved in planning.”). that the decision to place or not to place a guardrail on a roadway is conduct Dept. of Pub. Works & Highways, 136 N.H. 202, 205 (1992) (“We do not doubt regulations are discretionary functions entitled to immunity); DiFruscia v. N.H. Sorenson, 136 N.H. at 694 (decisions regarding traffic control and parking beacon at certain intersection is discretionary function entitled to immunity); 140 N.H. 417, 422 (1995) (State’s decision as to whether to install flashing

discretionary function immunity because it involved weighing alternatives and N.H. Dep’t of Transp., 159 N.H. at 75 (DOT’s detour plan protected by

City of Manchester, 136 N.H. 692, 694 (1993). “are limited to discretionary decisions involving . . . policy-making or

entities should remain immune from liability.” Id

falling within the protection of the discretionary function immunity doctrine Everitt v. Gen. Elec. Co., 156 N.H. 202, 220 (2007) (discretionary functions

making choices with respect to public policy and planning, governmental degree of discretion and judgment involved in weighing alternatives and p. 11 MUTCD, supra

. . . .” p. 11 MUTCD, supra statement of recommended, but not mandatory, practice in typical situations traffic control devices. required by traffic volumes or congestion, or by erecting other or manual traffic direction by proper authorities as might be

explains, those portions of the manual that are termed “Guidance” refer to “a hardware, software, and the timing plan(s) should for the maintenance of the signal and all of the appurtenances, during a period of failure, using flashing mode or manual control, Prior to installing any traffic control signal, the responsibility requires [DOT] to use its discretion and . . . judgment.” Dunlap v. W.L. Logan

Johnson v. Agency of Transp., 904 A.2d 1060, 1063 (Vt. 2006) (only MUTCD To this end the agency should specifically prohibitive practice regarding a traffic control device.” Id. at I-2; see are designated “Standards” refer to “a statement of required, mandatory, or

Regulations, Part 655, Section F and has been adopted by the DOT. See (interpreting earlier version of MUTCD). As the introduction to the MUTCD state manual); Lawton v. City of Pocatello, 886 P.2d 330, 337-38 (Idaho 1994) Trucking, Co. D. Provide for alternate operation of the traffic control signal, 829 N.E.2d 356, 361 (Ohio Ct. App. 2005) (interpreting Ohio’s

“[W]hile the word ‘shall’ establishes a mandatory duty, the word ‘should’. . . The plain language of this section does not create a mandatory duty.

at 4D-1 (emphases added). appurtenances in a competent manner.

Transportation’s Federal Highway Administration under 23 Code of Federal

Guidance:

Section 4D.02 Responsibility for Operation and Maintenance:

maintenance of the traffic control signal and all of its established. The responsible agency should provide for the

this provision established a mandatory duty.

the MUTCD provides, in pertinent part: v. Downs, 157 N.H. 695, 696-97 (2008). Section 4D.02 of the 2003 edition of

when traffic lights are rendered inoperable by an ice storm, we disagree that Assuming, without deciding, that section 4D.02D of the MUTCD even applies to overrule precedent, see

p. 12 majority concerning the factors that may be considered in determining whether LYNN, J., concurring specially. While I have a different view from the

Affirmed

specially. DALIANIS, C.J., and HICKS, J., concurred; LYNN, J., concurred

N.H. 579 (1995). With this caveat, I join the opinion of the court. reasons for failing to adhere to our decision in Trull v. Town of Conway, 140 (Lynn, J., concurring specially), I agree that in this case there are no sound the plaintiff’s negligence claims. December 1986. Id For all of these reasons, therefore, we affirm the trial court’s dismissal of State v. Quintero, 162 N.H. 526, 543-47 (2011)

four accidents occurred at the intersection between December 1985 and elected not to install a flashing beacon at the intersection at issue even though severe, winter weather-related widespread power outages. accidents occur at a particular intersection during a one-year period, the State with regard to responding to traffic lights rendered inoperable because of discretion.” Id. Similarly here, the MUTCD does not eliminate DOT’s discretion with regard to traffic control,” but rather “invit[ed] . . . the DOT to exercise rather than mandates.” Id. at 422. It “[did] not eliminate the DOT’s discretion We rejected a similar argument in Bergeron We disagreed, in part, because the manual in Bergeron “provide[d] guidelines beacons, but rather challenged DOT’s implementation of this policy. Id. at 421. challenge the adoption of the DOT’s policy regarding installing flashing Dane County v. O’Malley entitled to discretionary function immunity because the plaintiffs did not recommended practice, not a mandate upon government decision makers.”. at 419-20. The trial court concluded that DOT was not

the manual suggested that a flashing beacon is warranted when three control standards, statutes and policies. Bergeron, 140 N.H. at 419. Although Bergeron, the manual at issue was a State publication setting forth traffic

App. June 19, 2008).

provision upon which the plaintiff relies is “Guidance,” and is, “therefore only a “Standards” are binding on Vermont’s Agency of Transportation). The MUTCD