2025 N.H. 16, Felts v. City of Rochester

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

Carr on the brief, and Brittani L. Pelissier orally), for the plaintiff. Shaheen & Gordon, P.A., of Dover (Brittani L. Pelissier and Anthony M.

Citation: Felts v. City of Rochester, 2025 N.H. 16 Case No. 2024 - 0027 Strafford

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

N.H. 98, 10 p. 2 2 (2015). When a statute ’ s language is plain and unambiguous, we but rather within the context of the statute as a whole. Appeal of Michele, 168 the words used. See i d. We do not consider words and phrases in isolation, the statute, and, where possible, ascribe the plain and ordinary meanings to 13, 17 (2006). When interpreting a statute, w e first examine the language of interpretation, our review is de novo. See Cloutier v. City of Berlin, 154 N.H. [¶5] Because the interlocutory question presents an issue of statutory

moved for reconsideration, and this interlocutory appeal followed. traffic controls alerting motorists to the crosswalk. The City unsuccessfully that the City negligently failed to place crossing signals, warning signs, or other maintained the crosswalk itself and denied the motion as to the allegations negligence claim to the extent the complaint alleged that the City negligently signs or signals. It therefore granted the City’s motion to dismiss t he RSA p. 2 231:92 includes crosswalks but not accompanying pedestrian warning “serve a separate purpose,” the trial court concluded that “highway” as used in highway, whereas pedestrian warning signs “can be placed and removed” and fact that crosswalks are physically and functionally inseparable from the to dismiss on this issue. Based on the plain language of the statute and the [¶4] The trial court granted in part and denied in part the City’s motion

re pair of public highways. See RSA p. 2 231:92, I. liability for personal injury arising out of its construction, maintenance, or should be dismissed because, under RSA 231:92, the City is entitled to limited claims. As relevant here, the City argued that the plaintiff ’ s negligence claim or other signals related to the crosswalk. The City moved to dismiss all three reasonably safe condition, including its failure to install warning signs, lights, the City’s alleged failure to design, monitor, and maintain the crosswalk in a consortium claim on behalf of Felts individually. These claims are premised on negligence and violation of RSA 231:90 -:92 on behalf of the estate and a loss of wife’s estate — filed this suit. The complaint allege s alternative claims of [¶3] In January 2022, the plaintiff — individually and as executor of his

warning signs, signals, or traffic controls. At the time of the collision, the painted crosswalk was not accompanied by any within a painted crosswalk. She later passed away as a result of her injuries. motor vehicle w hile she was walking across North Main Street in Rochester p. 2 2020, the wife of the plaintiff, Raymond Felts, was st r uck and injured by a necessary. Dolbeare v. City of Laconia, 168 N.H. 52, 54 (2015). In December interlocutory appeal statement and rely upon the record for additional facts as [¶2] We accept the statement of the case and facts as presented in the

affirmative and, therefore, vacate and remand. within the meaning of ‘ highway ’ under RSA p. 2 2 p. 3 31:92?” We answer in the “Do pedestrian warning signs, crossing signals, and other traffic controls fall signals. See Sup. Ct. R. 8. We accepted the following question for our review: 3

RSA 2 p. 3 31:92. traffic controls not associated with pedestrian travel fall within the meaning of “highway s” under Given the scope of the interlocutory question, we need not decide whether signs, signals, or other 1

from a highway.” We agree with the City. 1 road itself and not pedestrian warning signs, which are “separa te and apart the plain meaning of “highway s” as denoting only the physical surface of the warning signs). The plaintiff counter s that the trial court correctly interpreted signs, crossing signals, and other traffic controls (hereinafter, pedestrian legislature’s purpose in enacting RSA 2 p. 3 31:90 -: 92, includes pedestrian warning when read in the context of the statutory scheme and in light of the [¶8] On appeal, the City argues that the plain meaning of “highway s,”

N.H. at 20. in other words, “some degree of immunity,” upon municipalities. Cloutier, 154 requirements are met, we have described it as conferring “limited liability” or, not be held liable for certain types of injuries unless certain statutory (emphas e s added). Because RSA 2 p. 3 31:92, I, provides that a municipality shall corrective action related to the insufficiency is established. RSA 231:92, I municipality’s notice, knowledge, or intent and failure to take appropriate was caused by an insufficiency, as defined by RSA 231:90,” and the highways and sidewalks constructed thereupon unless such injury or damage damage arising out of its construction, maintenance, or repair of public held liable for damages in an action to recover for personal injury or property [¶7] RSA 231:92, I, in turn, provides that: “A municipality shall not be

(emphasis added); Dichiara, 165 N.H. at 696. highways shall be limited as provided in RSA 2 p. 3 31.” RSA 507 - B:2 (2010) liability of any governmental unit with respect to its sidewalks, streets, and operation of all motor vehicles, and all premises; provided, however, that the fault attributable to it, arising out of ownership, occupation, maintenance or bodily injury, personal injury, or property damage caused by “its fault or by provides that a governmental unit may be liable in an action to recover for such exception to the immunity granted in RSA 507 - B:5 is RSA 507 - B:2, which unit”); Dichiara v. Sanborn Reg ’l Sch. Dist., 165 N.H. 694, 696 (2013). One RSA 507 - B:5 (2010); see also RSA 507 - B:1, I (2010) (defining “Governmental by [RSA chapter 507 - B] or as is provided or may be provided by other statute.” recover for bodily injury, personal injury or property damage except as provided B:5, g overnmental units, including cities, have immunity for “any action to [¶6] We begin with the statutory context of RSA 231:92. Under RSA 507 -

of the policy sought to be advanced by the entire statutory scheme. Id. apply statutes in light of the legislature ’ s intent in enacting them, and in light legislature did not see fit to include. Cloutier, 15 p. 4 4 N.H. at 17. Our goal is to not consider what the legislature might have said or add language that the need not look beyond it for further indication of legislative intent, and we will 4

obedience to all posted regulations, and in a manner which is upon such highway at posted speeds or upon such sidewalk, in discoverable or reasonably avoidable by a person who is traveling (b) There exists a safety hazard which is not reasonably

any more stringent local ordinance or regulation; or vehicles permitted on such sidewalk or highway by state law or by (a) It is not passable in any safe manner by those persons or

provides that a highway or sidewalk is insufficient only if: I, refers to the definition of “insufficiency” in RSA 231:90, which in turn considered a part of the highway. The limited liability provision in R SA 231:92, th is subdivision reflect legislative intent that pedestrian warning signs be surface of the road. See RSA 231:90 -: 110. To the contrary, other provisions of that reflects legislative intent to narrow the meaning of “highway” to the We see no language in the statutory subdivision governing municipal liability context of the statutory scheme, not in isolation. See Michele, 168 N.H. at 102. [¶11] We must also consider the plain meaning of “highway” in the

omitted). it.” State v. Scott, 82 N.H. 278, 27 8 - 7 9 (1926) (emphasis added; citation thoroughfare, whether road or sidewalk, with its soil and all the space above common law, which defines “highway” as “comprehend[ing] every public fit to do so”). This broad understanding of “highway” is supported by our that we will not “limit the meaning of the terms when the legislature did not se e issue in statutory interpretation question had “broad definitions” and stating the surface of the road. See Michele, 168 N.H. at 103 (observing that words at of the road or exclude f rom its scope pedestrian warning signs existing above are broad: they do not expressly limit the meaning of “highway” to the surface bicycle, or pedestrian public travel.” RSA 229:1 (Supp. 202 p. 4 4). Both definitions “roads which have been constructed for or are currently used for motor vehicle, Similarly, the legislature has elsewhere defined “h ighways” in relevant part as merriam - webster.com/ unabridged/highway (last visited Apr. 2, 2025). way.” Merriam - W ebster’s Unabridged Dictionary, https://unabridged. public road or way (as a footpath, road, or waterway) including the right - of that is open to public use as a matter of right whether or not a thoroughfare : a [¶10] The plain meaning of “highway” is “a road or way on land or water

Michele, 168 N.H. at 102. the statute, we look to its common usage, using the dictionary for guidance. Municipalities.” S ee RSA 2 31:90 -:110 (2009). When a term is not defined in the subdivision of RSA chapter 231 at issue here, which is entitled “Liability of (2009 & Supp. 202 p. 4 4). N or did it define the term specifically for the purposes of “highway s” generally for the purposes of RSA chapter 231. S ee RSA ch. 231 the words used. See Cloutier, 1 p. 5 54 N.H. at 17. T he legislature has not defined [¶9] We look first to the language of the statute and the plain meaning of 5

definition of “sidewalk” did not expressly mention “curbs,” we concluded that walk for foot passengers.” Id. at 4 p. 5 58 (quotation omitted). Even though the grass. See id. at 45 7 - 5 8. We stated that the plain meaning of “sidewalk” is “a and that she failed to see the curb because it was obscured by overgrown over a curb that directly abutted a sidewalk on the school district’s premises applied to her claim. The plaintiff alleged that she was injured after tripping defendant school district’s maintenance of a sidewalk such that RSA 231:92, I, 455, 456 - 58 (2004), we addressed whether the plaintiff’s injury arose out of the buttresses this conclusion. In Richard v. Pembroke School District, 151 N.H. [¶14] Our case law interpreting other language in RSA 231:92 further

that encompasses pedestrian warning signs. read in the context of the statutory scheme supports a construction of the term therefore conclude that the plain meaning of “highway s” in RSA 231:92 when determining whether the highway is “insufficien t” under RSA 231:90. We highway and that their presence or absence should be considered when language that contemplates that pedestrian warning signs are part of the [¶13] In sum, contrary to the plaintif f ’s assertions, there is statutory

highway is insufficient under RSA 231:90, II. See RSA 231:90, II, :94 -:9 p. 5 5. warning signs deemed sufficient under RSA 231:94 -:95 may impact whether a the context of the statutory subdivision, the presence of railings, posts, or other warning signs or structures,” RSA 231:95. Reading these provisions in approval shall serve “as evidence of the sufficiency of such railings, posts, or Department of Transportation, see RSA 231:94 -:95, and that proof of such warning signs erected on the highway that have been approved by the dangerous embankment is sufficient if made by railings, posts, or other together, RSA 231:94 and :95 provide that a municipality’s warning of a construction of “highway” that includes pedestrian warning signs. Read [¶12] The language of RSA 231:94 and:95 is also consistent with a

highway itself, not separate from it. See id. contemplates that warning signs are part of the “condition” or “state” of the warning signs.” Id. In other words, this definition of insufficiency “the condition and state or repair of the highway or sidewalk” “includ[es] any “prevailing visibility and weather conditions.” Id. The statute provides that upon “the condition and state or repair of the highway or sidewalk” and the W hether a person is traveling in a reasonable and prudent ma nn er depends regulations and in a reasonable and prudent manner. See RSA 231:90, II(b). avoidable by a person traveling in compliance with posted speeds and insufficient if there exists a safety hazard that is not reasonably discoverable or RSA 231:90, II (emphasis added). RSA 231:90, II(b) provides that a highway is

and prevailing visibility and weather conditions. or repair of the highway or sidewalk, including any warning signs, reasonable and prudent as determined by the condition and state p. 6 6

unco nstitutional. In response, the legislature drafted legislation limiting from ownership or maintenance of highways, streets, and sidewalks — was which provided complete immunity to municipalities from tort liability arising N.H. 109, 1 19 - 20 (1990), we held that a prior version of RSA 507 - B:2, I — language). In City of Dover v. Imperial Casualty & Indemnity Company, 133 purpose articulated in session law to interpret unambiguous statutory Wilson, 1 p. 6 69 N.H. 755, 763 - 64, 767 (2017) (relying upon legislative statement of statutes in light of the legislature’s intent in enacting them . . . .”); State v. in enacting RSA 231:92. See Cloutier, 154 N.H. at 17 (“Our goal is to apply inclu ding pedestrian warning signs is consistent with the legislature’s purpose [¶17] Finally, we observe that our interpretation of “highway s” as

added)). occasion [] be functionally related to highways, bridges, or sidewalks” (emphasis does not encompass “parking lots” in part because parking lots may only “on (holding that meaning of “highways, bridges, or sidewalks” in RSA 231:92 - a sidewalks. Cf. Johnson v. City of Laconia, 141 N.H. 379, 380 - 81 (199 p. 6 6) would have no functio n if separated from the surface of highways and physically severable from the surface of the road, pedestrian warning signs motorists to the actual or po tential presence of pedestrians. Although perhaps one side of the road to the other by stopping motorist traffic or by alert ing the road, p edestrian warning signs ensure the safe crossing of pedestrians from road to facilitate travel. Like the lines of a crosswalk painted on the surface of highways and sidewalks — they function in tandem with the surface of the [¶16] Pedestrian warning signs are integral to the public’s viatic use of

vehicle, bicycle, or pedestrian public travel”). part, as “roads which have been constructed for or are currently used for motor (summarizing case law); see also RSA 229:1 (defining “[h] ighways,” in relevant Viatic use encompasses both pedestrian and motorist travel. See id. 424, 42 p. 6 6 - 27 (1958) (quoting Lydston v. Co mpany, 75 N.H. 23, 24 (1908)). that is, use of the road “as a means of travel.” Hartford v. Gilmanton, 101 N.H. has a right to use highways for all acts reasonably incident to “‘ viatic use ’” — Webster’s Unabridged Dictionary, supra. It is well established that the public on land or water that is open to public use as a matter of right.” Merriam pedestrian warning signs. As explained above, a “highway” is “a road or way applies here as to the functional relationship between the road surface and sidewalk were physically inseparable, see id. at 458, analogous reasoning [¶15] Although in Richard we focused on the fact that the curb and the

RSA 231:92, I. See id. at 45 p. 6 6 - 58. grass along the curb was an issue of sidewalk maintenance within the scope of Id. We therefore concluded that the school district’s failure to maintain the curb was “essentially inseparable from, and an integral part of, the sidewalk.” such that it formed a part of the walk for foot passengers.” Id. In short, the the curb was part of the sidewalk because it “directly abutted the sidewalk p. 7 7

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

crosswalk where the collision occurred and remand. premised upon the City’s failure to place pedestrian warning signs at the that RSA 231:92 does not apply to the plaintiff ’s claim to the extent that it is the interlocutory question in the affirmative. We vacate the trial court’s ruling used in RSA 231:92 includes pedestrian warning signs and, therefore, answer [¶20] For all these reasons, we hold that t he meaning of “highway s” as

accordingly. See Petition of State of N.H., 1 p. 7 75 N.H. 547, 555 (2022). RSA 231:92, it is free, within constitutional limits, to amend the statute RSA 231:9 0 -:92. Of course, if the legislature disagrees with our construction of claims premised upon insufficiencies in the surface of the traveled way. See warning signs w ill be subject to the same notice and pleading standards as limited recovery: claims arising from insufficiencies related to pedestrian upset the balance struck between protecting municipalities and permitting pedestrian warning signs is consistent with this purpose in that it does not defined circumstances). A broad construction of “highway” that includes that persons injured by such activities have a right to recover under narrowly from liability arising from inherent risks of equine activity while also ensuring statement of intent together to discern legislative purpose of shielding persons Pond Farm, 171 N.H. 350, 356 (2018) (reading statutory language and right to recover under limited circumstances. See id.; cf. Franciosa v. Hidden from highway and sidewalk liability while also ensuring that individuals have a conclude that the legislat ure’s purpose was to maximize municipal protectio n [¶19] Considering the statutory language with this context in mind, we

sidewalk. See id. to injuries arising only from insufficiencies in the surface of the road or legislative statement of purpose evi nces a n intent to limit municipal immunity liability, consistent with the constitution.” Laws 1991, 385:1. Nothing in the municipalities with the greatest possible protection from highway and sidewalk [¶18] The stated purpose of Senate Bill 151 - FN was “to provide

:9; Cloutier, 154 N.H. at 20. 50 p. 7 7 - B:2 and RSA 231:90 -:92 in Senate Bill 151 - FN. S ee Laws 1991, 385:2 -:5, action. See id. at 275 - 77. The legislature then repealed and reenacted RSA notice of an insufficiency in a highway or sidewalk and failed to take corrective limited municipal liability to instances where the municipality received actual proposed amendments largely passed constitutional muster because they Opinion of the Justices, 134 N.H. 266, 268 - 70 (1991). We replied that the municipal liability and asked for our opinion as to its constitutionality. See