Bowden v. Commissioner12/21/1999
e turnpikes," and consequently "the defendants have had regular and continuous notice and knowledge of the condition of the steel grate catch basin in question." The plaintiffs alleged that the department of transportation guidelines require these types of drainage grates to be set one inch below pavement level, and that this grate was "nearly two inches lower than that permitted" by the guidelines. The plaintiffs alleged that as a result of these routine inspections, "the tate had notice and knowledge of, in specific terms . . ., well before and after [the date of the accident], the insufficient condition and defect existing in the highway." They allege that the State was given notice of the insufficiency on April 28, 1994, and the State's failure after the notice to determine whether an insufficiency exists and to take corrective action resulted in a waiver of the State's claim of lack of notice.
On September 18, 1997, the Superior Court (Barry, J.) granted the defendants' second motion to dismiss after finding the plaintiffs "failed to amend the writ and set forth with specificity the manner in which the defendant received actual notice of the defect in the storm drain and conduct of the defendant which constitutes gross negligence or bad faith." The court then dismissed the State of New Hampshire and the department of transportation as defendants. The court noted, however, that " his case remains open for trial on 10/20/97 as to [the commissioner of the department of transportation]. If not, please advise the Court." On October 10, 1997, the court issued an order dismissing the remainder of the case because " o party appeared for final pre-trial conference on 10/9/97."
On appeal, the plaintiffs argue that: (1) RSA 230:78 and :80, I(b) violate equal protection, due process, and other rights and privileges conferred under Part I, Articles 2, 8, 12, 14, and 20 of the New Hampshire Constitution, and the Fifth, Seventh, and Fourteenth Amendments to the United States Constitution; and (2) the superior court erred in requiring them to follow substantive pleading requirements greater than or different from those set forth in Morency v. Plourde, 96 N.H. 344, 345-46, 76 A.2d 791, 792 (1950).
We first address the plaintiffs' constitutional questions under our State Constitution, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350-51 (1983), and "because the State Constitution provides at least as much protection as the Federal Constitution in this instance, we need not conduct a separate federal analysis." In re 1994 Chevrolet Cavalier, 142 N.H. 705, 707, 708 A.2d 397, 398 (1998); see Douglas v. Douglas, 143 N.H. ___, ___, 728 A.2d 215, 218-19 (1999).
In Merrill v. City of Manchester, 114 N.H. 722, 728-29, 332 A.2d 378, 382-83 (1974), we held that municipal immunity, a judicially created doctrine that had become outdated and outmoded, should be sharply limited. While abrogating the common law doctrine except for two specific categories of claims, Merrill, 114 N.H. at 729, 332 A.2d at 383, we recognized that "the legislature has authority to specify the terms and conditions of suit against cities and towns, limit the amount of recovery, or take any other action which in its wisdom it may deem proper." Id. at 730, 332 A.2d at 384. In City of Dover v. Imperial Casualty & Indemnity Co., 133 N.H. 109, 575 A.2d 1280 (1990), we held that "municipal immunity, as a judicially created doctrine, no longer exists." Id. at 115, 575 A.2d at 1283. As drafted, the statute at issue in City of Dover violated equal protection under the State Constitution because it was unreasonably broad, was arbitrary, and did not bear a fair and substantial relation to the legislative objective. Id. at 120,
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