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Bowden v. Commissioner12/21/1999
ed the alleged insufficiency.
III. The acceptance or layout of a public highway shall not be construed to confer upon the department of transportation 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 of highways and highway bridges by the commissioner, whether accomplished formally or informally, shall be deemed a discretionary, policy function for which the department of transportation shall not be held liable in the absence of malice or bad faith.
When read in concert, RSA 230:78-:80 establish a statutory scheme whereby State liability may arise after the State is put on notice of an alleged insufficiency by any person, see RSA 230:78. Once put on notice of the insufficiency, the State shall immediately place warning signals and shall thereafter develop a plan to repair the insufficiency. See RSA 230:79, I. If the State does not warn motorists and develop a repair plan, the State may be liable for damages "caused by the insufficiency." RSA 230:79, II. By statute, State liability arises only after: (1) the State has been given a notice of insufficiency within the meaning of RSA 230:78, see RSA 230:80, I(a); (2) the commissioner "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," RSA 230:80, I(b) (emphasis added); or (3) the insufficiency was created by a State employee, acting intentionally and within the scope of his official duty while in the course of his employment, acting with gross negligence, or with reckless disregard of the hazard, RSA 230:80, I(c).
After a review of the pleadings and the trial court's orders, we conclude that the trial court dismissed the plaintiffs' case not because the pleadings were insufficient under Morency, but because the pleadings failed to establish a prima facie case under RSA 238:80. While the pleadings sufficiently explain the theory under which the plaintiffs sought recovery, they fail to allege that the State either had a report of an insufficiency, see RSA 230:80, I(a), or had actual knowledge of an insufficiency, see RSA 230:80, I(b), before the motorcycle accident in April 1993.
The plaintiffs' theory of liability under RSA 230:80 arising from a post-injury notice of a roadway insufficiency is fatally flawed in at least two regards. First, the plaintiffs' theory of liability erroneously presupposes that the presence of a defect in the roadway at the time of the notice means that same defect existed when the injury occurred. Second, the plaintiffs' theory wrongly assumes that because that reported defect must have existed for some period of time, the State would, in the course of its construction, inspection, maintenance, and repair functions on public highways, have obtained either actual or constructive notice of the defect. The plaintiffs, however fail to demonstrate that the State had received a notice of insufficiency, see RSA 230:78, I, :80, I(a), or had obtained actual notice of the defect, see RSA 230:80, I(b), prior to the April 1993 injuries. If we assume all facts in the complaint to be true, although the plaintiffs provided the State with notice of an insufficiency within the meaning of RSA 230:78, the facts as pled fail to establish that the State received actual notice of the insufficiency before the April 1993 injuries.
The trial court correctly ruled that the plaintiffs' naked legal conclusion that the State must have had notice based on the State's responsibilit
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