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Bowden v. Commissioner12/21/1999
any person may give notice of such insufficiency to the department of transportation. The notice shall set forth in general terms the location of such highway or highway bridge, and the nature of such insufficiency.
II. For purposes of this subdivision, a highway or bridge thereon shall be considered "insufficient" only if:
(a) It is not passable in any safe manner by those persons or vehicles permitted on such highway or bridge thereon; or
(b) There exists a safety hazard which is not reasonably discoverable or reasonably avoidable by a person who is traveling upon such highway or highway bridge at posted speeds 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 highway bridge, including any warning signs, and prevailing visibility and weather conditions.
III. A highway or highway bridge shall not, in the absence of impassability or hidden hazard as set forth in paragraph II, be considered "insufficient" merely by reason of the department of transportation's failure to construct, maintain or repair it to the same standard as some other highway or highway bridges or to a level of service commensurate with its current level of public use.
RSA 230:79 provides:
I. Upon receipt of such notice of insufficiency, and unless the commissioner determines in good faith that no such insufficiency exists, the department of transportation shall immediately cause proper danger signals to be placed to warn persons by day or night of such insufficiency, and shall, within 96 hours thereafter, develop a plan for repairing such highway or highway bridge, and shall implement such plan in good faith and with reasonable dispatch until the highway or highway bridge is no longer insufficient, as defined by RSA 230:78.
II. If the department of transportation 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 541-B:14.
And finally, RSA 230:80 provides:
I. The department of transportation 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 highway bridges unless such injury or damage was caused by an insufficiency, as defined by RSA 230:78, and:
(a) The department of transportation received a notice of such insufficiency as set forth in RSA 230:78, but failed to act as provided by RSA 230:79; or
(b) The commissioner of the department of transportation who is responsible for maintenance and repair of highways or highway bridges, had actual notice or knowledge of such insufficiency, by means other than notice pursuant to RSA 230:78 and was 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 an 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 construction, repair or maintenance of its public highways or highway bridges shall be dismissed unless the complaint describes with particularity the means by which the department of transportation received actual notice of the alleged insufficiency, or the intentional act which creat
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