4/16/91 2186s 0623L
6/12/91 3295s 91-0820
1991 SESSION 05
SENATE BILL - FINAL VERSION
SENATE BILL NO. 151-FN (CHAPTER 385, LAWS OF 1991)
INTRODUCED BY: Sen. Fraser of Dist. 4
REFERRED TO: Transportation
AN ACT to protect municipalities against liability in the construction and maintenance of highways, streets and sidewalks.
ANALYSIS
This bill defines insufficient class IV and V highways and bridges and clarifies the method of notice of insufficiency.
This bill also limits the liability of municipalities for personal injury or property damage arising out of the construction, maintenance or repair of public highways and sidewalks.
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EXPLANATION: Matter added appears in bold italics.
Matter removed appears in [brackets].
Matter which is repealed and reenacted or all new appears in regular type.
0623L
91-0820
05
SB 151-FN
STATE OF NEW HAMPSHIRE
In the year of Our Lord one thousand
nine hundred and ninety-one
AN ACT
to protect municipalities against liability in the construction
and maintenance of highways, streets and sidewalks.
Be it Enacted by the Senate and House of Represen-
tatives in General Court convened:
1 Statement of Purpose. The New Hampshire Supreme Court, in the case of City of Dover v. Imperial Casualty & Indemnity Company (April 30, 1990), declared unconstitutional existing RSA 507-B:2, I, insofar as it provides immunity to municipalities in the ownership, occupation, maintenance or operation of public sidewalks, streets and highways. The purpose of this act, in light of that decision, is to provide municipalities with the greatest possible protection from highway and sidewalk liability, consistent with the constitution. The general court hereby recognizes that municipal highways and sidewalks, unlike other property interests, are open to constant unsupervised public use, subject to interruption only in limited circumstances; that their condition for public use is subject to the ever-changing, unpredictable effects of sun, rain, wind, ice, snow and
frost; that the number, length, and degree of use of highways and sidewalks in a community is not necessarily related to that community's population or financial resources; and that the existing construction standard or state of repair of any highway or sidewalk is a product of its unique history of capital investments, made at different times, in response to differing and evolving needs of the traveling public. It is, therefore, unreasonable to expect that all highways and sidewalks will be routinely patrolled or subject to regular preventive maintenance, or that all such highways and sidewalks should be constructed and maintained to any uniform standards. The general court finds, therefore, that municipalities, in the exercise of their statutory duty to maintain certain highway and sidewalks, should not be held as guarantors of 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.
2 New Subdivision Heading; Liability of Municipalities. Amend RSA 231 by inserting before section 90 the following new subdivision heading:
Liability of Municipalities
3 Notice of Insufficiency; Insufficiency Defined. RSA 231:90 is repealed and reenacted to read as follows:
231:90 Duty of Municipality after Notice of Insufficiency.
I. Whenever any class IV or class V highway or bridge or sidewalk thereon in any municipality shall be insufficient, any person may give written notice of such insufficiency to one of the selectmen or highway agents of the town, or the mayor or street commissioners of the city, 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, bridge, or sidewalk and the nature of such insufficiency.
II. For purposes of this subdivision, a highway or sidewalk shall be considered "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 of repair of the highway or sidewalk, including any warning signs, and prevailing visibility and weather conditions.
III. A highway or sidewalk shall not, in the absence of impassability or hidden hazard as set forth in paragraph II, be considered "insufficient" merely by reason of the municipality's failure to construct, maintain or repair it to the same standard as some other highway or sidewalk, or to a level of service commensurate with its current level of public use.
4 Liability of Municipality. RSA 231:91 is repealed and reenacted to read as follows:
231:91 Municipality to Act; Liability.
I. Upon receipt of such notice of insufficiency, and unless the highway agents or street commissioners determine in good faith that no such insufficiency exists, the municipality shall immediately cause proper
danger signals to be placed to warn persons by day or night of such insufficiency, and shall, within 72 hours thereafter, develop a plan for repairing such highway, bridge, or sidewalk and shall implement such plan in good faith and with reasonable dispatch until the highway, bridge, or sidewalk is no longer insufficient, as defined by RSA 231:90, II.
II. If the municipality fails to act as set forth in paragraph I, it shall be liable in damages for all personal injury or property damage proximately caused by the insufficiency identified in the notice, subject to the liability limits under RSA 507-B:4.
5 Municipality Standard of Care. RSA 231:92 is repealed and reenacted to read as follows:
231:92 Liability of Municipalities; Standard of Care.
I. A municipality 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, and:
(a) The municipality received a written notice of such insufficiency as set forth in RSA 231:90, but failed to act as provided by RSA 231:91; or
(b) The selectmen, mayor or other chief executive official of the municipality, the town or city clerk, any on-duty police or fire personnel, or municipal officers responsible for maintenance and repair of highways, bridges, or sidewalks thereon had actual notice or knowledge of such insufficiency, by means other than written notice pursuant to RSA 231:90,
and were grossly negligent or exercised bad faith in responding or failing to respond to such actual knowledge; or
(c) The condition constituting the insufficiency was created by an intentional act of a municipal officer or employee acting in the scope of his official duty while in the course of his employment, acting with gross negligence, or with reckless disregard of the hazard.
II. Any action to recover damages for bodily injury, personal injury or property damage arising out of municipal construction, repair or maintenance of its public highways or sidewalks constructed on such highways shall be dismissed unless the complaint describes with particularity the means by which the municipality received actual notice of the alleged insufficiency, or the intentional act which created the alleged insufficiency.
III. The acceptance or layout of a private road as a public highway shall not be construed to confer upon the municipality any notice of, or liability for, insufficiencies or defects which arose or were created prior to such layout or acceptance.
IV. The setting of construction, repair, or maintenance standards of levels of service for highways and sidewalks by municipal officials with responsibility therefor, whether accomplished formally or informally, shall be deemed a discretionary, policy function for which the municipality shall not be held liable in the absence of malice or bad faith.
6 New Section; Liability for Weather Hazards. Amend RSA 231 by inserting after section 92 the following new section:
231:92-a Snow, Ice and Other Weather Hazards. Notwithstanding RSA 231:90-92, a municipality shall not be held liable for damages arising from insufficiencies or hazards on public highways, bridges, or sidewalks, even if it has actual notice or knowledge of them, when such hazards are caused by snow, ice, or other inclement weather, and the municipality's failure or delay in removing or mitigating such hazards is the result of its implementation, absent gross negligence or reckless disregard of the hazard, of a winter or inclement weather maintenance policy or set of priorities adopted in good faith by the officials responsible for such policy; and all municipal employees and officials shall be presumed to be acting pursuant to such a policy or set of priorities, in the absence of proof to the contrary.
7 When Municipalities Are Not Liable. RSA 231:93 is repealed and reenacted to read as follows:
231:93 When Municipalities Not Liable. Municipalities shall not be deemed to have any duty of care whatsoever with respect to the construction, maintenance or repair of class I, III or VI highways, or state maintained portions of class II highways, or highways to public waters laid out by a commission appointed by the governor and council. Upon any highway or other way with respect to which a municipality is found to have a duty of care of any kind, its liability shall be limited as set forth in this subdivision.
8 Municipality Insurance Coverage; Reference Added. Amend RSA 412:3 to read as follows:
412:3 Procured by Governmental Agency. It shall be lawful for the state or any municipal subdivision thereof, including any county, city, town, school district, supervisory union or other district, to procure the policies of insurance described in RSA 412:1. In any action against the state or any municipal subdivision thereof to enforce liability on account of a risk so insured against, the insuring company or state or municipal subdivision thereof 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 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.
9 Liability; Reference Added. RSA 507-B:2 is repealed and reenacted to read as follows:
507-B:2 Liability for Negligence. 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 and the liability of any governmental unit with respect to publicly owned airport runways and taxiways shall be limited as set forth in RSA 422.
10 Repeal. The following are repealed:
I. RSA 231:82-89, relative to neglect of highways.
II. RSA 231:96-104, relative to liability of towns.
III. The subdivision heading preceding RSA 231:92, relative to liability of towns.
IV. RSA 507-B:2-a, relative to municipal immunity.
11 Effective Date. This act shall take effect January 1, 1992.
LBAO
LSR 91-0820
1/16/91
FISCAL NOTE for an act to protect municipalities against liability in the construction and maintenance of highways, streets and sidewalks.
FISCAL IMPACT:
The Departments of Transportation and Insurance both agree that local expenditures would decrease by an undeterminable amount because of fewer liability cases. There is no impact upon local revenues or state or county revenues or expenditures.
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