Raymond Felts et al. v. City of Rochester

Appellee argues that the term “highway, ” as used in RSA §§ 231:90- :92, is limited to a highway’s physical surface or roadbed and does not extend to a highway’s warning signs, crossing signals, or other traffic control devices (hereinafter collectively referred to as “warning signs”). In support of this argument, Appellee advances the following theories: (1) the plain meaning of the term “highway” as used in the statutory scheme compels the conclusion that only the physical surface or roadbed of a highway are implicated; (2) the City, in interpreting the statutory scheme, goes beyond the plain meaning by including a highway’s warning signs; and (3) the Legislature intended to limit municipal immunity for highways rather than provide blanket immunity for all aspects of highway management. For the reasons articulated in the City’s brief and as discussed below, Appellee is mistaken and their arguments should be rejected.

Appellee argues that the plain and ordinary meaning of the term “highway” as used throughout RSA §§ 231:90-:92 means that the limitation of liability within the statutory scheme only applies to the highway surface or roadbed. App. Br. 1 20. Appellee’s method of statutory interpretation— selectively choosing the terms that Appellee contends are most important or should be afforded the most weight—is inconsistent with the canons of statutory interpretation. “When interpreting two statutes that deal with a similar subject matter, [the Court] construe[s] them so that they do not contradict each other, and so that they will lead to reasonable results and effectuate the legislative purpose of the statutes.” Grand China v. United Nat’l Ins. Co., 156 N.H. 429, 431 (2007). The Legislature’s choice of language in RSA § 231:90, including the term “warning signs, ” is meaningful and it must be construed together with the other components of the statutory scheme to be given effect.

This Court has acknowledged that “the legislature’s choice of language is deemed to be meaningful, and that we generally assume that whenever the legislature enacts a provision, it has in mind previous statutes relating to the same subject matter[.]” State Employees Ass’n of New Hampshire, SEIU, Local 1984 (SEA) v. New Hampshire Division of Personnel, 158 N.H. 338, 345 (2009) (cleaned up). The existence of the term “warning signs” within RSA §§ 231:90-:92’s statutory scheme indicates that the Legislature intended to include warning signs in the purpose sought to be advanced by it—i.e., reasonably limiting municipal liability. “Therefore, unless the context indicates otherwise, words or phrases in a provision that were used in a prior act pertaining to the same subject matter will be construed in the same sense.” State Employees Ass’n of New Hampshire, SEIU, Local 1984 (SEA), 158 N.H. at 345 (cleaned up). Here, Appellee’s narrow reading of “highway” within RSA §§ 231:90-:92 fails to take into account the overall statutory scheme. It is an “elementary principle of statutory construction that all of the words of a statute must be given effect and that the legislature is presumed not to have used superfluous or redundant words.” Merrill v. Great Bay Disposal Serv., 125 N.H. 540, 543 (1984). Here, the Legislature explicitly used the term “warning signs” in defining an insufficiency associated with a highway under RSA § 231:90. Accordingly, Appellee’s argument that the Legislature’s use of the term “warning signs” need not be given effect because the perceived meaning of the term “highway” is the only guiding principle in the interpretation of RSA §§ 231:90-:92 is misplaced and should be rejected.

As noted in the foregoing analysis, RSA §§ 231:90-:92 does not define “highway.” While the City agrees with Appellee that the term “highway” is broad, the term “highway, ” as contemplated by the statutory scheme, is not limited solely to the physical surface or roadbed. See Appeal of Michele, 168 N.H. 98, 103 (2015) (“We acknowledge that these are broad definitions. We see no reason, however, to limit the meaning of the terms when the legislature did not see fit to do so.”) On a highway, “[t]ravelers thereon ‘have the right to do all acts reasonably incident to ‘a viatic use of the way[.]’” Hartford v. Town of Gilmanton, 101 N.H. 424, 426 (1958). The viatic use of a municipal highway, like the one at issue in this case, is vehicular and pedestrian travel. Marrone v. Town of Hampton, 123 N.H. 729, 734 (1983) (“Once a public highway is established, absent a valid discontinuation, travelers over it have the right to do all acts reasonably incident to a ‘viatic use’ of the road.”). In interpreting whether RSA §§ 231:90-:92’s definition of highway includes warning signs in this case, the viatic use of a highway should guide the Court’s analysis. It follows that the viatic use of a municipal highway—pedestrian and vehicular travel—supports the City’s interpretation that a highway’s warning signs are a part of the highway itself for the purpose of municipal immunity in RSA §§ 231:90-:92 because warning signs are integral to viatic use.

The City’s interpretation that “highway” as contemplated by RSA §§ 231:90-:92 includes a highway’s warning signs is consistent in the context of the viatic use, the statutory scheme, and the legislative intent. It is reasonable to conclude that the Legislature’s purpose in enacting RSA §§ 231:90-:92 was to limit a municipality’s liability relative to all parts integral to the viatic use of the highway. This conclusion is buttressed by RSA § 231:90, II(b), which plainly provides that warning signs are considered in the statute’s scope. In the context of the overall statutory scheme, it is not reasonable to suggest, as Appellee does, that the Legislature intended to exclude parts of the highway that are beyond the surface or roadbed—i.e., that the Legislature intended only to include immunity for the parts of the highway that are dirt, gravel, or asphalt. Without a highway, there would be no warning sign directing pedestrian and vehicular traffic on the highway. A warning sign would not exist alone and, therefore, forms a component of the highway itself.

In enacting RSA §§ 231:90-:92, the Legislature recognized that “municipalities, in the exercise of their statutory duty to maintain certain highways and sidewalks, should not be held as guarantors or the safety of the traveling public, nor guarantors of any particular condition or standard of construction or maintenance, nor should they be held liable under a standard of ordinary negligence.” Senate Bill 151 (1991). In so doing, the Legislature intended to provide municipalities with the greatest possible protection from highway and sidewalk liability.

The Legislature inserted language into RSA §§ 231:90-92 to modify the legal duty owed to users of highways, and specify the standard of care associated with municipalities as owners of critical public infrastructure. Appellee’s interpretation of the statute, however, seeks to curtail the Legislature’s intent because an aggrieved party, harmed within the context of viatic use of a highway, will simply seek to bypass the text of RSA 231:90-:92 by pleading that a highway’s insufficiency was not caused by the highway’s surface or roadbed. By way of example, if warning signs or the absence of warning signs associated with a highway does not fall within the purview of the statutory scheme then the notice requirements within the statutory scheme would not be applicable. Thus, adopting Appellee’s interpretation would undermine the Legislature’s recognition that “[i]t is.. . unreasonable to expect that all highways... will be routinely patrolled or subject to regular preventative maintenance.” Senate Bill 151 (1991). The Legislature intended RSA §§ 231:90-:92 to be part of a comprehensive statutory scheme that would serve to limit the liability of municipalities relative to highways. Appellee’s interpretation effectively eviscerates the protections afforded by the statutory scheme and would place a municipality in the same position as a private landowner with respect to liability on such an issue.

In sum, Appellee’s proffered interpretation of the term “highway” conflicts with the intent and purpose of RSA §§ 231:90-:92, thereby frustrating the policy that the Legislature sought to advance by the overall statutory scheme. Appellee’s interpretation should be rejected.

When read in the context of the statutory scheme and in light of the apparent legislative intent, the term “highway” encompasses a highway’s warning signs. Based upon the entire statutory scheme and its intended purpose, the Legislature did not intend to limit a municipality’s immunity for highways to only those insufficiencies associated with the surface or roadbed. Reversing and remanding the trial court’s interpretation that “warning signs” are not included in RSA §§ 231:90-:92’s definition of highway is consistent with the statutory scheme and conforms to the legislative intent.

For the foregoing reasons and the reasons outlined in the City’s brief the City of Rochester respectfully requests that this Honorable Court answer the question presented for interlocutory appeal in the affirmative.

I, Keelan B. Forey, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 1, 500 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer program used to prepare this brief.

August 1, 2024 /s/ Keelan B. Forey Keelan B. Forey

I hereby certify that a copy of the City of Rochester’s brief shall be served on Brittani Schastine and Anthony Carr, counsel for Plaintiff, through the New Hampshire Supreme Court’s electronic filing system.

August 1, 2024 /s/ Keelan B. Forey Keelan B. Forey