Cloutier v. City of Berlin

907 A.2d 955, 154 N.H. 13, 2006 N.H. LEXIS 118
CourtSupreme Court of New Hampshire
DecidedAugust 2, 2006
DocketNo. 2005-342
StatusPublished
Cited by18 cases

This text of 907 A.2d 955 (Cloutier v. City of Berlin) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cloutier v. City of Berlin, 907 A.2d 955, 154 N.H. 13, 2006 N.H. LEXIS 118 (N.H. 2006).

Opinion

DUGGAN, J.

The plaintiff, Debra A. Cloutier, sued the defendant, City of Berlin, for personal injuries and economic losses that she suffered while operating her vehicle on one of its streets. The jury returned a verdict for the City. The plaintiff appeals an order of the Superior Court (Houran, J.) denying her post-trial motion to set aside the verdict and for a new trial. The City cross-appeals the denial of its pre-trial motion for summary judgment. We affirm the trial court’s denial of the plaintiff’s post-trial motion and do not reach the issues raised in the City’s cross-appeal.

The record reflects the following facts. On the night of August 7, 2000, the plaintiff was traveling in her vehicle through the intersection of Grafton and Rockingham Streets in Berlin. A heavy rainstorm was just ending. During the rainstorm, excess water displaced a manhole cover in the intersection. As the plaintiff drove through the intersection, she either drove over the open manhole or collided with the displaced manhole cover. As a result, the plaintiff suffered personal injuries and property damage.

The intersection of Grafton and Rockingham Streets is located on a slope. There had never before been a reported manhole cover displacement at this particular intersection. There had, however, been reports made to City officials of partial and complete manhole cover displacement at manholes located on or near long slopes at other locations in the City, usually during heavy rainfall.

After the accident, the plaintiff sued the City, alleging that her damages resulted from the City’s failure to correct the conditions that caused the manhole cover to become displaced. She alleged that the City was aware of manhole cover displacement at similarly situated manholes and, accordingly, it should have anticipated and guarded against manhole cover displacement at the intersection where the accident occurred. The jury returned a verdict in favor of the City. The plaintiff’s post-trial motions were denied and this appeal followed.

The plaintiff contends on appeal that the trial court erred by instructing the jury regarding the municipal liability provisions in RSA 231:90 through :92-a (1993 & Supp. 2005). She argues first that RSA 231:90 through :92 [16]*16(1993) are “immunity defenses,” which, pursuant to RSA 412:3 (1998) (repealed 2002) (current version at RSA 507-B :7-a (Supp. 2005)), the City was prohibited from asserting because it had liability insurance. Next, she argues that, regardless of the existence of liability insurance coverage, RSA 231:92,1(b) is not applicable in this case. Finally, she argues that the trial court’s inclement weather instruction, given pursuant to RSA 231:92-a (Supp. 2005), was erroneous because: (1) RSA 231:92-a is not applicable to the facts of this case; and (2) even if the statute is applicable, the language of the instruction itself was deficient.

I. RSA 4-12:3

The plaintiff first argues that RSA 412:3 renders the municipal liability provisions of RSA 231:90 through :92 inapplicable to a municipality which has liability insurance. RSA 412:3, at the time of the plaintiff’s accident, provided, in pertinent part:

In any action against ... [a municipality] to enforce liability on account of a risk [for which the municipality has procured a policy of insurance], the insuring company or... [municipality] shall not be allowed to plead as a defense immunity from liability for damages resulting from the performance of governmental functions, and its liability shall be determined as in the case of a private corporation except when a standard of care differing from that of [a] private corporation is set forth by statute; provided, however, that liability in any such case shall not exceed the limits of coverage specified in the policy of insurance or as to governmental units defined in RSA 507-B, liability shall not exceed the policy limit or the limit specified in RSA 507-B :4, if applicable, whichever is higher, and the court shall abate any verdict in any such action to the extent that it exceeds such limit.

The plaintiff argues that RSA 231:90 through :92 are immunity defenses within the meaning of RSA 412:3, and thus the City is prohibited from relying upon them because it has liability insurance. The City, however, argues that RSA 231:90 through :92 set forth a standard of care differing from that of a private corporation, and thus trigger the exception contained in RSA 412:3 to permit the City to rely upon RSA 231:90 through :92 in its defense.

The trial court interpreted RSA 412:3 to provide that “even where, as here, a defendant municipality has procured insurance for the risk at issue, it is nonetheless entitled to have its liability determined under an applicable statutory standard of care differing from that of a private [17]*17corporation.” It concluded that RSA 231:90 through :92 “establish!] such an applicable statutory standard of care.”

The interpretation of a statute is a question of law, which we review de novo. Carlisle v. Frisbie Mem. Hosp., 152 N.H. 762, 773 (2005). We are the final arbiters of the legislature’s intent as expressed in the words of the statute considered as a whole. Id. We first examine the language of the statute, and, where possible, ascribe the plain and ordinary meanings to the words used. Id. When a statute’s language is plain and unambiguous, we need not look beyond it for further indication of legislative intent, and we will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. If a statute is ambiguous, however, we consider legislative history to aid our analysis. Id. Our goal is to apply statutes in light of the legislature’s intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme. Id.

The language of RSA 412:3 is plain and unambiguous. It provides that a municipality with insurance coverage may not “plead as a defense immunity from liability for damages resulting from the performance of governmental functions,” and further provides that its liability “shall be determined as in the case of a private corporation except when a standard of care differing from that of [a] private corporation is set forth by statute.” RSA 412:3 (emphasis added).

The parties dispute whether any of the provisions in RSA 231:90 through :92 set forth a defense of immunity or a statutory standard of care. The plaintiff suggests that even if any provision in RSA 231:90 through :92 establishes a standard of care, it cannot apply under RSA 412:3 because each provision is “entangled with prohibited immunity defenses.” We examine each of the relevant provisions in turn.

RSA 231:90, entitled “Duty of Town After Notice of Insufficiency,” defines “insufficiency” and describes the form of written notice required by RSA 231:92,1(a). It provides, in pertinent part,

I. Whenever any class IV or class V highway ... in any municipality shall be insufficient, any person may give written notice of such insufficiency to one of the [designated municipal officials], and a copy of said notice to the town or city clerk. The notice shall be signed and shall set forth in general terms ... the location of such highway... and the nature of such insufficiency.
II. [A] highway... shall be considered “insufficient” only if:

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Cite This Page — Counsel Stack

Bluebook (online)
907 A.2d 955, 154 N.H. 13, 2006 N.H. LEXIS 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cloutier-v-city-of-berlin-nh-2006.