Richard v. Pembroke School District

859 A.2d 1157, 151 N.H. 455, 2004 N.H. LEXIS 176
CourtSupreme Court of New Hampshire
DecidedOctober 21, 2004
DocketNo. 2004-064
StatusPublished
Cited by4 cases

This text of 859 A.2d 1157 (Richard v. Pembroke School District) 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
Richard v. Pembroke School District, 859 A.2d 1157, 151 N.H. 455, 2004 N.H. LEXIS 176 (N.H. 2004).

Opinion

Broderick, C.J.

The plaintiffs, Debbie and Joseph Richard, appeal an order of the Superior Court (McGuire, J.) granting summary judgment to the defendant, the Pembroke School District (district). We affirm.

The record, taken in the light most favorable to the plaintiffs, supports the following facts. In September 2000, Ms. Richard picked her son up [456]*456from school at Pembroke Academy (academy). While leaving, she followed him across a grassy island in front of the school. The island was surrounded by a curb and, on the side of the island farthest from the school, a sidewalk directly abutted the curb. In some locations along the edge of the island, portions of the curb were higher than the abutting ground. When she reached the far side of the island, Ms. Richard tripped over the curb and fell, landing on the adjacent sidewalk. As a result of her fall, Ms. Richard allegedly suffered a severe injury to her right arm, for which her husband also sought damages for loss of consortium.

The district moved for summary judgment on the basis that it was immune from liability under RSA 507-B:2 and RSA chapter 231. The trial court granted the district’s motion, ruling that these statutes applied because Ms. Richard’s “fall and injuries arose out of the [district’s maintenance of the sidewalk.” The trial court concluded that because the plaintiffs “[did] not dispute that no notice of this condition was given to the [district as required by RSA 231:90 and 92 ... [its] finding that the accident and injury arose out of the maintenance of the sidewalk end[ed] the analysis.” This appeal followed.

The plaintiffs contend that their injuries were caused, not by the district’s failure to maintain the sidewalk, but rather by the overgrown grass that hid the curb. Specifically, although Ms. Richard is not certain as to precisely where along the curb she tripped, she asserts that she tripped where the grass, curb and sidewalk met, and did so because the curb was obscured by overgrown grass. Consequently, the plaintiffs argue that the district is not immune from liability, because their claimed injuries were caused by the district’s negligent maintenance of the grass island or surrounding curb, and not the sidewalk. Additionally, they contend that even if their injuries were caused by negligent maintenance of the sidewalk, the trial court erred in relying upon the district’s affidavits from school officials in determining that they failed to satisfy the notice requirements of RSA chapter 231. The district responds that even if the accident occurred due to an “insufficiency” in the sidewalk, the plaintiffs cannot prevail because they failed to plead that the district had actual notice as required by RSA 231:92, II (1993).

‘When reviewing a trial court’s grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party.” Estate of Joshua T. v. State, 150 N.H. 405, 407 (2003). If our review of the evidence does not reveal any genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the [457]*457trial court’s decision. Id. “We review the trial court’s application of the law to the facts de novo.” Id.

RSA 507-B:2 (1997) provides, in pertinent part:

A governmental unit may be held liable for damages in an action to recover for bodily injury, personal injury or property damage caused by its fault or by fault attributable to it, arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises; provided, however, that the liability of any governmental unit with respect to its sidewalks, streets, and highways shall be limited as provided in RSA 231----

The district does not contest that it is a “governmental unit” for purposes of RSA 507-B:2, see RSA 507-B:l (1997) (governmental unit means any political subdivision within the State, including school districts), or that it is the proper governmental unit against which this lawsuit should have been brought. We assume, without deciding, that the latter is correct.

Under RSA231:92,1 (1993):

A [governmental unit] shall not be held liable for damages in an action to recover for personal injury or property damage arising out of its construction, maintenance, or repair of public highways and sidewalks constructed thereupon unless such injury or damage was caused by an insufficiency, as defined by RSA 231:90

RSA 231:90, II (1993) provides that a sidewalk is “insufficient” only if:

(a) It is not passable in any safe manner by those persons or vehicles permitted on such sidewalk or highway by state law or by any more stringent local ordinance or regulation; or
(b) There exists a safety hazard which is not reasonably discoverable or reasonably avoidable by a person who is traveling upon such highway at posted speeds or upon such sidewalk, in obedience to all posted regulations, and in a manner which is reasonable and prudent as determined by the condition and state or repair of the highway or sidewalk, including any warning signs, and prevailing visibility and weather conditions.

The plaintiffs contend that their injuries were not caused by the district’s maintenance of the sidewalk because Ms. Richard tripped over a curb that was hidden by overgrown grass. We disagree. The term “sidewalk” is not defined in either RSA 507-B:2 or RSA chapter 231. [458]*458Therefore, we construe the word according to its common and approved usage. RSA 21:2 (2000); see also Appeal of Maseoma Valley Reg. School Dist., 141 N.H. 98, 100 (1996). According to its common and approved usage, the term “sidewalk” refers to “a walk for foot passengers [usually] at the side of a street or roadway: a foot pavement.” WEBSTER’S THIRD New International Dictionary 2113 (unabridged ed. 2002).

There is no dispute that Ms. Richard is unsure as to precisely where along the curb she tripped. However, the plaintiffs’ uncontested allegation is that Ms. Richard tripped over a portion of the curb that directly abutted the sidewalk on the side of the island farthest from the school. We conclude that because the portion of the curb over which Ms. Richard tripped directly abutted the sidewalk such that it formed a part of the walk for foot passengers, that portion of the curb was essentially inseparable from, and an integral part of, the sidewalk. Thus, the district’s failure to ensure that the grass along the edge of the island did not obscure the curb for foot traffic is an issue of sidewalk maintenance. Consequently, because it is undisputed that the plaintiffs’ injuries were caused by curbing obscured by overgrown grass, their injuries, assuming liability on behalf of the district, arose out of the district’s maintenance of the sidewalk.

Under RSA 231:92, I, a governmental unit cannot be held liable for damages in an action to recover for personal injuries arising out of its maintenance of a sidewalk unless the injuries were caused by an “insufficiency” in the sidewalk as defined by RSA 231:90. The district argues that even if the plaintiffs’ injuries were caused by an insufficiency in the sidewalk, -it is immune from liability because the plaintiffs failed to satisfy the notice requirements of RSA chapter 231. We agree.

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Bluebook (online)
859 A.2d 1157, 151 N.H. 455, 2004 N.H. LEXIS 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-v-pembroke-school-district-nh-2004.