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Bowden v. Commissioner12/21/1999
The plaintiffs, Craig and Chrisinda Bowden, appeal a decision of the Superior Court (Barry, J.) granting a motion to dismiss filed by the defendants, the Commissioner of the Department of Transportation, the Department of Transportation, and the State of New Hampshire. We affirm.
The plaintiffs alleged the following facts. On April 17, 1993, at approximately 6:40 p.m., Craig Bowden was driving his motorcycle in a southeasterly direction around the Amoskeag Rotary in Manchester. As the plaintiff approached the intersection of the Amoskeag Rotary and Eddy Road, he encountered a defect in the surface of the roadway. The defect was a steel grate-type storm drain extending approximately twenty-four inches into the travel portion of the roadway. The upper surface of the storm drain was approximately four inches below the grade surface of the surrounding roadway. Because of traffic, lack of warning signs or markings, and an inability to see the grate as he drove through the rotary, the plaintiff drove over the steel grate, which caused him to lose control of his motorcycle. Bowden and the motorcycle slid approximately fifty-eight feet until he struck the curb on the opposite side of the road.
Plaintiffs' counsel sent a notice to the defendants on April 26, 1994, informing them that he represented the plaintiffs in a "claim against the State . . . for damages arising out of a motorcycle accident due to an alleged defect in the Amoskeag Rotary." The plaintiffs contend that this letter put the defendants on notice of an insufficiency within the meaning of RSA 230:78, II(b) (1993).
In their first writ filed on March 25, 1996, the plaintiffs alleged that the commissioner and his subordinates had a duty to exercise care in designing, constructing, inspecting, and maintaining the public ways to ensure that they are in a passable condition. They alleged that the defendants personally or through their subordinates failed to exercise reasonable care in the maintenance of these roadways, and that "the Commissioner and the [New Hampshire Department of Transportation] knew or should have known the location and nature, in specific terms, of the insufficient condition and defect existing in the highway." Further, despite receipt of notice of the insufficiency, the defendants "failed to take prompt corrective action as required by RSA 230:79 [(1993)] to eliminate the defect/insufficient condition which failure directly resulted in injury to the plaintiff ."
In July 1996, the Superior Court (Lynn, J.) granted the defendants' first motion to dismiss. After reviewing the statutory requirements before liability may be imposed on the State for damages resulting from a highway insufficiency in RSA 230:80, the court found that the plaintiffs failed to describe "with particularity the means by which the department of transportation received actual notice of the alleged insufficiency" in the roadway "at or about the date of the accident." The court held that " ritten notification of an alleged insufficiency, subsequent to personal injury and property damage, does not comport with RSA 230:80, II. Neither does an assumption that the [department of transportation] possessed actual notice through routine maintenance and repair of the roadway comport with RSA 238:80, II [(1993)]." The court gave the plaintiffs an opportunity to file "an amended writ which sets forth with specificity the manner in which the defendant received actual notice of the insufficiency and the conduct of the defendant which constitutes gross negligence or bad faith."
The plaintiffs filed an amended writ alleging that the State had a practice of conducting "regular and routine visual inspections of all portions of th
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