2024 N.H. 21, Cole v. Town of Conway

defendant. and Keelan B. Forey on the brief, and Matthew V. Burrows orally), for the Gallagher, Callahan & Gartrell, P.C., of Concord (Matthew V. Burrows

and orally), for the plaintiff. Seufert Law Office, PA, of Franklin (Christopher C. Snook on the brief

Citation: Cole v. Town of Conway, 2024 N.H. 2 1 Case No. 2022 - 0648 Merrimack

THE SUPREME COURT OF NEW HAMPSHIRE

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

the sidewalk’s condition. It further concluded that Primex ’s pooled risk in the sidewalk, or that an intentional act by a municip al official had caused with sufficient particularity, that the defendant had received notice of the holes dismiss. In its order, the court concluded that the plaintiff had failed to plead, [¶5] The trial court issued a narrat ive order granting the motion to

proffered additions w ould not cure the defect in the complaint. sidewalk in North Conway.” The defendant objected on the basis that the that [the defendant was] aware of problems with that particular section of he could add reference s to “news articles and minutes of the Selectmen’s board event the court determined the complaint was insufficient. He proffered that hearing, the plaintiff orally addressed his motion to amend the complaint in the [¶4] The trial court held a hearing on the motion to dismiss. During the

discovered facts.” (Capitalization and bolding omitted.) filed a motion for leave to amend the complaint on the “basis of newly The defendant filed a reply to the plaintiff’s objection. In response, the plaintiff RSA 507 - B:7 - a ( p. 2 2010) because it is insured against the risk through Primex. alternative, the defendant is barred from claiming statutory immunity under arguing: (1) the complaint contained sufficient particularity; and (2) in the that, as a result, it was entitled to statutory immunity. The plaintiff objected, received written notic e as required by RSA 231:92. The defendant asserted arguing that the plaintiff had failed to allege with particularity how it had defendant in superior court. The defendant moved to dismiss the complaint, [¶3] T he plaintiff filed a complaint alleging negligence against the

associated with the missing bricks. “no cones, signs or other warnings” alerting pedestrians to potential hazards created by the removal of the bricks.” When the injury occurred, there were “writt en notice of the chipped, cracked or otherwise broken bricks and of holes of the state of disrepair of the sidewalk” prior to his injury and had received shoulder on the ground.” According to the plaintiff, the defendant “was aware his foot in one of these holes, causing him to fall, “striking his right arm and “throughout the walking surface.” While the plaintiff was walking, he caught “chipped, cracked, or otherwise broken.” As a result, there were holes Village, some bricks had been removed from the sidewalk and others were village of the Town of Conway. Pri or to the plaintiff’s visit to North Conway wife were walking on a brick sidewalk in North Conway Village, which is a otherwise supported by the record. In September p. 2 2020, the plaintiff and his [¶2] The following facts are derived from the plaintiff’s complaint or are

part, reverse in part, and remand. denying the plaintiff’s motion for leave to amend his complai nt. We affirm in the defendant was entitled to immunity pursuant to RSA p. 2 2 p. 3 31:92 (2009); and (2) 3

respond to such ac tual knowledge; or grossly negligent or exercised bad faith in responding or failing to actual notice or knowledge of such insufficiency . . . and were responsible for maintenance and repair of . . . sidewalks . . . had any on - duty police or f ire personnel, or municipal officers (b) The selectmen . . . of the municipality, the town or city clerk,

2 p. 3 31:91; or as set fort h in RSA 231:90, but failed to act as provided by RSA (a) The municipality received a written notice of such insufficiency

caused by an insufficiency, as defin ed by RSA 2 p. 3 31:90, and: sidewalks constructed thereupon unless such injury or damage was construction, maintenance, or repair of public highways and recover for personal injury or property damage arising out of its I. A municipality shall not be held liable for damages in an action to

RSA 2 p. 3 31:92 provides, in relevant part: determination as it relates to statutory immunity provided by RSA 231:92. [¶ 7] We begin by examining the plaintiff’s challenge to the trial court’s

Id. th e motion to dismiss if the facts pled do not constitute a basis for legal relief. the pleadings against the applicable law. Id. We will uphold the granting of permit recovery. Id. This threshold inquiry involves testing the facts alleged in plaintiff’s allegations are reasonably susceptible of a construction that would standard of review when considering a motion to dismiss is w hether the the plaintiff. Barufaldi v. City of Dover, 175 N.H. 424, 427 (2022). The pleadings and construe all reasonable inferences in the light most favorable to motion to dismiss, we assume the truth of the fa cts as alleged in the plaintiff’ s statutory immunity under RSA 2 p. 3 31:92. When reviewing an order granting a defendant’s motion to dismiss because the defendant was not entitled to [¶ 6] The plaintiff first argues that the trial court erred i n granting the

reconsideration, which the trial court denied. This appeal followed. could cure his complaint’s deficiencies.” The plaintiff moved for concluding that the plaintiff had “failed to dem onstrate how an amendment addition, the trial court denied the plaintiff’s motion for leave to amend, court concluded that the defendant was entitled to statutory immunity. In insurance policy with in the meaning of RSA 507 - B:7 - a. Accordingly, the trial Supp. 2022) in which the defendant wa s enrolled did not constitute an management program (PRMP) establish ed under RSA chapter 5 - B (2020 & p. 4 4

paragraphs of RSA 231:92. See i d. at 19. Id. at 21 - 22. However, we specifically did not address the remaining defendant had insurance within the meaning of RSA 507 - B:7 - a’s predecessor. of the liability protections afforded by RSA 231:90 -:92, I, even though the that standard of care, we held that the defendant municipality could avail its elf private corporation.” Id. at 20 - 21 (quotation and brackets omitted). Relying on and in establishing a municipal “s tandard of care differing from that of a played a “dual role” in “confer[ring] some degree of immunit y” on municipalities the defendant had insurance. Id. at 15 - 16. We ruled that RSA 231:92, I, “immunity defenses” that the defendant municipality could not assert because (2009). The plaintiff in Cloutie r argued that RSA 231:90 -: 92, I, constituted version of RSA 507 - B:7 - a. Cloutier, 15 p. 4 4 N.H. at 16 - 22; see RSA 231:90 -:92, I addressed the interplay between RSA 231:90 -:92, I, and the predecessor (Emphases added.) In Cloutier v. City of Berlin, 154 N.H. 13 (2006), we

that of a private corporation is set forth by statute. . . . private corporation except when a standard of care differing from functions, and its liability shall be determined as in the case of a damages resulting from the performance of governmental not be allowed to plead as a defense i mmunity from liability for insuring compan y or state or municipal subdivision thereof shall to enforce liability on account of a risk so insured against, the any action against the state or any municipal subdivision thereof . . . to procure the policies of insurance descr ibed in RSA p. 4 412. In It shall be lawful for the state or any municipal subdivision thereof

relevant part: obtained a policy insuring it against the risk. RSA 507 - B:7 - a provides, in relying on RSA 231:92, II because, by enrolling with Primex, the defendant has [¶ 8] T he plaintiff asserts that RSA 507 - B:7 - a prevents the defendant from

(Emphases added.)

intentional act which created the alleged insufficiency. municipality received actual notice of t he alleged insufficiency, or the complaint describes with particularity the means by which the maintenance of its. . . sidewalks . . . shall be dismissed unless the property damage arising out of municipal constructio n, repair or II. Any action to recover damages for bodily injury, p ersonal injury or

hazard. acting with gross negligence, or with reckless disregard of the scope of his official duty while in the course of his employment, intentional act of a municipal officer or employee acting in the (c) T he condition constituting the insufficiency was created by an p. 5 5

Id. Id. Absent an ambiguity, we will not look beyond the language of the statute. light of the policy or purpose sought to be advanced by the statutory scheme. statute as a whole, which enables us to better discern the legislature’s intent in consider words and phrases in isolation, but rather within the context of the overall purpose and to avoid an absurd or unjust result. Id. We do not to include. Id. We construe all parts of a statute together to effectuate its legislature might have said or add language that the legislature did not see fit Id. We interpret the statute as written and will not consider what the possible, construe that language according to its plain and ordinary meaning. interpretation, we first look to the language of the statute it self, and, if N.H. Dep’t of Corr., 173 N.H. 726, 733 (2020). In matters of statutory interpretation, a question of law, which we review de novo. Avery v. Comm’r, within the meaning of RSA p. 5 50 7 - B: 7 - a requires us to engage in statutory the meaning of RSA 507 - B:7 - a. Determining whether Primex offers insurance opposed to a traditional insurance company, it still provides insurance within [¶ 11] Next, the plaintiff asserts that, even if Primex is a PRMP, as

establish that Primex is a PRMP. See id. not disputed, we find no error in the trial court’s reliance on the letter to was attached to the plaintiff’s pleading and its authenticity and accuracy are document or its contents before the trial court. Accordingly, because the letter RSA p. 5 5 - B.” And, the defendant did not dispute the authenticity of this letter head clearly stating “Primex [] is a p ublic entity risk pool established under the motion to dismiss, the plaintiff himself submitted a letter on Primex complaint.” Barufaldi, 175 N.H. at 427. Here, in support of his objection to parties, official p ublic records, or documents sufficiently referred to in the pleadings, or documents, the authenticity of which are not disputed by the pleadings,” it “may also consider documents attached to the plaintiff’s must generally “assume the truth of the facts as alleged in the plaintiff’s PRMP. We disagree. Although, at the motion to dismiss phase, th e trial court that there was “no evidence” for the trial court to conclude that Primex is a risk management provider, like a traditional insurance company. He contends defendant failed to establish that Primex is a PRMP as opposed to some other defendant’ s reliance on RSA 231:92, II, the plaintiff first asserts that the [¶ 10] In support of his position that membership in Primex precludes the

RSA 231:92, II. Primex does not qualify as “insurance,” we need not determine the nature of at 19 - 21. Because we conclude, as explained below, that membership in as “insurance” under RSA p. 5 507 - B:7 - a. See RSA 507 - B:7 - a; Cloutier, 154 N.H. have to determine, first, that the defendant’s members hip in Primex qualifies 507 - B:7 - a prevents the defendant from relying on RSA 231:92, II, we would [¶9] And we need not do so here. In order for us to conclude that RSA p. 6 6

chapter 5 - B constitutes insurance such that a municipality ’s immunity is Hampshire has pre viously considered whether a PRMP established under RSA [¶ 1 5] Similarly, t he United States District Court for the District of New

at 723. ‘insurance’ as that term is usually understood under New Hampshire law.” Id. at 722 - 23. Accordingly, the First Circuit held that PRMPs do not “constitute that the undefined term ‘insurance’ would, without more, include PRMPs.” Id. so doing, [the legislature] abolished any normal expectation in New Hampshire legislature has expressly removed it from the category of insurance,” and “[b]y further opined that “while [a PRMP] may have some insurer - lik e aspects . . . the and treating them differently from providers of traditional insurance.” Id. It protection coverage for political subdivisions by granting PRMPs special status, explained that RSA 5 - B:1 “indicates that the legis lature sought to facilitate risk ordinary meaning of the undefined term ‘insurance’ in New Hampshire.” Id. It RSA chapter 5 - B “suggests that the products of PRMPs are outside of the (emphasis in original). Th e First Circuit rejected this argument, reasoning that treated as insurers for all purposes except ‘regulation or taxation.’” Id. at 722 regulation or taxation,’ implies that the legislature intended PRMPs to be District argued that “the limiting language [in the statute], ‘for purposes of Cir. 1998). Like the plaintiff in this case, the plaintiff in Stratford School Stratford School Dist. v. Employers Reins. Corp., 1 p. 6 62 F.3d 718, 721 - 23 (1st “‘insurance’ for the purposes of an insurer’s ‘other insurance’ clause.” considered, under New Hampshire law, whether a PRMP could be considered [¶ 1 4] The United States Court of Appeals for the First Circuit previously

doing an insurance business for purposes of regulation or taxation. administration of any activities of the plan shall not con stitute reciprocal insurer, or insurer under the laws of this state, and required under this chapter is not an insurance company, Any pooled risk management program meeting the standards

In addition, RSA 5 - B: p. 6 6 (2020) provides:

regulation and taxation by the state. established by this chapter s hould not be subject to insurance [P]ooled risk management programs which meet the standards

[¶13] RSA 5 - B: 1 (2020) states, in relevant part:

not provide traditional insurance under RSA chapter 4 12 (2022). that a PRMP is not an “insurer[] within the laws of this state” and thus does RSA 231:92, II. In response, c iting RSA chapter 5 - B, the defendant assert s sidewalks, the defendant cannot plead immunity from suit under against the risk allegedly created by failing to adequately maintain its public [¶ 12] The plaintiff asserts that, because Primex insures the defendant p. 7 7

whether a ruling made by the trial court is a proper exercise of judicial decision absent an unsustainable exercise of discretion. Id. When reviewing sound discretion of the trial court, and we will not disturb the trial court’s complaint. Id. Whether to allow a party to amend its pleadings rests in the p. 7 76. An amendment may also be denied if it would not cure the defect in the entirely new cause of action, or call for substantially different evidence. Id. at permi tted unless the changes would surprise the opposing party, introduce an 174 N.H. 68, 75 (2021). Accordingly, liberal amendment of pleadings is necessary to prevent injustice. New London Hosp. Ass’n v. Town of Newport, correct technical defects but need only allow substantive amendments when RSA 514:9 (2021). Generally, a court should allo w amendments to pleadings to appear to the court that it is necessary for the prevention of injustice. . ..” upon such terms as the court shall deem just and reasonable, when it shall substance may be permitted in any action, in any stage of the proceedings, plaintiff’s motion for leave to amend the complaint. “Amendments in matters of defendant can rely on RSA 231:92, we turn to the trial court’s denial of the [¶ 1 7] Having determined that the trial court correct ly conclude d that the

barred from relying on RSA 231: 92 as a basis to contest the plaintiff’s claim. legislature. See Cloutier, 154 N.H. at 22. Accordingly, the defendant is not of municipal liability, howeve r, is a public policy decision best reserved for the insurance policies. Whether PRMP - based risk pr otection should a ffect a waiver PRMPs may insure against the same risk s as those covered by traditional meaning of RSA 50 p. 7 7 - B:7 - a. We recognize, as the plaintiff points out, that persuasive. PRMPs, like Primex, do not constitute “insurance” within the [¶ 1 6] We find the reasoning in Stratford School District and Martineau

immunity as a defense.” Id. therefore, “RSA 50 p. 7 7 - B:7 - a does not apply and [the defendant] may claim PRMP, does not constitute a policy of insurance described in RSA 412,” and, 412.” Id. at * 5. Accordingly, the Martineau C ourt concluded that “Primex, a RSA 5 - B differently from providers of ins urance policies regulated under RSA the New Hampshire legislature has chosen to treat PRMPs organized under liability coverage that is comparable to traditional insurance, see RSA 5 - B:3, relevant sta tutory scheme, the court concluded: “Although PRMPs may provide defendant could not plead statutory immunity. Id. at *4. After review of the that, pursuant to RSA 507 - B:7 - a, having obtained a poli cy through Primex, the “governmental unit[s]” under certain circumstances. Id. The plaintiff argued claims pursuant to RSA 507 - B:5 (2010), which grants immu nity to negligence. Id. at * 3. In response, the defendant asserted immunity on both plaintiff asserted t w o common law claims related to the defendant’s alleged LM, 2017 WL 2693491, at *4 - 5 (D.N.H. June 22, 2017). In Martineau, the thereby waived pursuant to RSA 507 - B:7 - a. Martinea u v. Antilus, 16 - cv - 541 - p. 8 8

chipped, cracked or otherwise broken bricks and of holes created by the a lleged that “[o]n information and belief, Defendant had written notice of the sidewalk shall be considered “insufficient”). The plaintiff’s original complaint insufficiency.” RSA 231:92, II; see also RSA 231:90, II (2009) (defining when a alleged insufficiency, or the intentional act which created the alleged particularity the means by which the municipality received a ctual notice of the its... sidewalks. . . shall be dismissed unless the complaint describes with injury... arising out of municipal construction, repair or maintenance of [¶ 20] Under RSA 231:92, II, “[a] ny action to recover damages for bodily

susceptible of a construction that would permit recovery. Id. whether the allegations in the plaintiff’s amended pleadings are reasonably plaintiff’s pleadings that are merely conclusions of law. Id. W e then consider 673 (2017). However, we need not assume the truth of statements in the plaint iff. Cluff - Landry v. Roman Catholic Bishop of Manchester, 169 N.H. 670, be true and construe a l l reasonable inferences in the light most favorable to the in dismissal, we assume the allegations in the plaintiff’s amended pleadings to determine whether the amendment would cure the deficiencies which resulted 0301 (non - precedential order at 2), 2023 WL 57930 p. 8 86 (N.H. Sep t. 7, 2023). To Estate of Michael D. Veilleux & a. v. Demoulas Super Markets, Inc., No. 2022 motion to dismiss standard. See Brenda L. Butkus, Administrator of the recognized that a motion to amend t he complaint should be reviewed under the is whether the amended complaint will survive a motion to dismiss, we have complaint’s deficiencies. See id. In a situation such as this, when the question plaintiff’s prop osed amendments to determine whether they correct his original See ERG, Inc. v. Barnes, 137 N.H. 186, 189 (1993). Therefore, we review the deficiencies before a dismissal for failure to state a claim has preclusive effect. plaintiff must be given leave to amend his complaint to correct perceived concluded that his amendments would not cure the defect in his complaint. A [¶ 1 9] The plaintiff next argues that the trial court erred when it

arguments before it. that the trial court issued its ruling after considering both the written and oral out in its objection, dated after the incident. Thus, the record demonstrates article referred to in the plaintiff’s written motion was, as the defendant pointed problems with the sidewalk. In response, the trial court n oted that the news counsel had found “news articles” showing that the defendant was aware of motion. We dis agree. At the hearing, the plaintiff’s counsel asserted that trial court denied only an “oral motion” and failed to rule o n the written transcript where the plaintiff’s counsel orally argued for leave to amend, the because the trial court’s order denying leave to amend only cited the hearing merits” of his written motion for leave to amend his complaint. He argues that, [¶ 1 p. 8 8] The plaintiff first asserts that the trial court “never considered the

sufficient to sustain the discretionary judgment made. Id. discretion, we determine whether the record establishes an objective basis p. 9 9

M AC DONALD, C.J., and BASSETT and DONOVAN, JJ., concurred.

claim will satisfy any other requirements of RSA 231: p. 9 92 that may apply. requirement. We express no opinion as to whether the plaintiff’s amended minimum, the allegations we have identified as satisfying the particularity opportunity on remand to file an amended complaint that includes, at a plaintiff’s motion for leave to amend the complaint. The plaintiff shall have the insufficiency in the side walk). We reverse the trial court’s ruling denying the maintenance supervisor that it had no written or verbal notice of an alleged summary judgment for school district whe n it established by affidavit of its Richard v. Pembroke Sch. Dist., 151 N.H. 455, 460 (2004) (affirming entry of Th ese allegations are sufficiently “particular[]” to satisfy RSA 231:92, II. Cf. oral notice from the T own engineer at a meeting of the board of selectmen. identify the means by which the defendant received notice of the insufficienc y: [¶ 2 2] The allegations in the plaintiff’s motion and proffer at the hearing

same to the Board of Selectmen at the board’s meeting.” We agree. in such a way that the bricks were cracking and disintegrating and then told knew ‘for years and years’ that the sidewalk where Plaintiff fell was constructed amended Complaint will allege that prior to the incident, the Town [e] ngineer contends that this satisfies the particularity requirement because “the said “we’ve been aware of this issue for years and years.” The plaintiff they were cracking and disintegrating over time,” and that “the Town engineer” “the way that the pavers were installed originally was done in such a way that with that particular section of sidewalk.” Specifically, counsel represented that articles and minutes of the Selectmen’s board that they were aware o f problems complaint, the plaintiff’s counsel represented that he “found through news the court asked what specific allegations the plaintiff would add to his that some of the bricks were “starting to disintegrate.” At the hearing, w hen informed the board that the sidewalk was having issues with “heaving” and from the T own engineer at a board of selectmen’s meeting. The Town engineer The motion included a screenshot of a news article that described statements discovered new facts showing that the defendant had received actual notice. [¶ 2 1] The plaintiff’s motion for leave to amend stated that he had

denied the motion for leave to amend. failed to demonstrate how an amended complaint would cure this defect and about the content of the notice.” T he court then determined that the plaintiff notice, who received the notice, when it was provided or received, or any details that t he complaint did not include “details such as who provided the Town particularity, how the Town received actual notice of the insufficiency,” noting inadequate because the complai nt “failed to allege, with the required removal of the bricks.” The t rial court concluded that this allegation was