Bancroft v. Town of Canterbury, 7984

• Decision Date: 19 June 1978
• Docket Number: No. 7984,7984
• Citation: 388 A.2d 199,118 N.H. 453
• Parties: Fred L. BANCROFT v. TOWN OF CANTERBURY.
• Court: New Hampshire Supreme Court

Page 199

388 A.2d 199

118 N.H. 453

Fred L. BANCROFT v. TOWN OF CANTERBURY.

No. 7984.

Supreme Court of New Hampshire.

June 19, 1978.

Flynn, McGuirk & Blanchard, Portsmouth (Stephen L. Tober, Portsmouth, orally), for plaintiff.

Devine, Millimet, Stahl & Branch, P.A., Manchester (William S. Gannon, Manchester, orally), for defendant.

BOIS, Justice.

The issue in this case is whether the plaintiff may maintain a tort action for injuries he allegedly sustained on an approach to a discontinued bridge linking the towns of Boscawen and Canterbury. The defendant town of Canterbury moved to dismiss, asserting that the plaintiff failed to comply with the notice requirements of RSA ch. 247 and that the defendant was immunized from liability by RSA 238:6. (Defendant also asserted a third ground for dismissal, but has since waived it.) The Trial Court (Keller, C. J.) denied the motion. Defendant's exception to this denial was reserved and transferred to this court, in advance of trial, by Brock, J. We affirm.

We adopt the plaintiff's factual allegations for purposes of reviewing the motion to dismiss. On the evening of May 8, 1970, plaintiff was operating his motorcycle along Intervale Road in Canterbury when he approached the Boscawen-Canterbury bridge. Unknown to the plaintiff, Canterbury had closed the bridge to motor vehicles by placing a steel I-beam across the bridge's entrance. The town had also placed or allowed to accumulate a quantity of sand at the bridge's entrance. The sun had already set that night and there were no signs or reflectors warning that the bridge was closed, so plaintiff had no way of knowing that he should not attempt to cross the bridge. His motorcycle hit the unmarked sand, causing him to be thrown headfirst against the I-beam. Plaintiff thereafter brought this suit to recover damages for his resulting injuries.

The defendant's first contention in this appeal is that the plaintiff's action should be dismissed as untimely because it was not commenced until April 19, 1974, almost four years after the date of the alleged accident. The defendant in so arguing assumes that the plaintiff's action is predicated on RSA ch. 247 ("NEGLECT BY TOWN TO REPAIR HIGHWAYS AND LIABILITY FOR DAMAGES"). Section 17 of RSA ch. 247 provides that "(t)owns are liable for damages happening to any person, . . . or (his) motor vehicle, traveling upon a bridge . . . by reason of any obstruction, defect, insufficiency, or want of repair of such bridge . . . which renders it unsuitable for the travel thereon." (The approach to a bridge may be regarded as a part of the bridge for the purpose of determining the liability of towns for injuries to highway travelers under RSA 247:17. Saloshin v. Houle, 86 N.H. 132, 164 A. 767 (1933).) The municipal liability imposed by the statute is qualified, however, by the requirement that a claimant

shall, within ten days from the date of receiving injury, file with one of the selectmen and the clerk of such town a written statement, under oath, setting forth the exact place where and the time when the injury was received, a full description thereof, the extent of the same and the amount of damages claimed therefor.

RSA 247:25. Any person "unavoidably prevented from filing such statement" within the ten-day period may petition the superior court for leave to file a late claim. RSA 247:26. However, such petition must be filed with the superior court within six months of the date of the alleged injury, and if the petition is granted the claimant must file his late claim within the time period set by the court. Id.; Simoneau v. Town of Enfield, 112 N.H. 242, 293 A.2d 317 (1972). If a claimant fails to comply with these procedural preconditions, his suit usually must be dismissed. Id.; RSA 247:28.

Plaintiff concedes that he did not file a claim under RSA 247:25-28. He asserts, however, that the statutory scheme of RSA ch. 247 is irrelevant to this case because the statute does not apply to actions for damages arising out of injuries allegedly sustained on discontinued bridges. The superior court agreed, ruling that "(i)n view of the fact that the portion of the bridge with the approach thereto, where the accident allegedly happened, had been discontinued as a public highway, RSA 247:17, and related statutory provisions, are not applicable." This ruling was correct.

RSA 247:17, and ch. 247 in general, applies only to open bridges and highways; nothing in any of our cases has implied that the statute is at all relevant to discontinued bridges. RSA 247:17 makes municipalities liable for personal or property damage sustained by a person "traveling upon a bridge" if a defect or condition renders the bridge "unsuitable for the travel thereon." (Emphasis added.) See Merrill v. City of Manchester, 114 N.H. 722, 727, 332 A.2d 378, 382 (1974). Similarly, RSA 247:1 subjects a town to liability if it neglects to "keep any such highway in good repair suitable for the travel thereon . . . ." (Emphasis added.) The parties have stipulated that the plaintiff incurred his alleged injuries on an approach to a "discontinued" bridge, one closed to motor vehicles. See RSA 230:1 ("highways" include the bridges thereon); RSA chs. 237, 238 (highways may be discontinued). We hold that the notice requirements of RSA 247:25-28, and RSA ch. 247 in general, are irrelevant to a civil action, such as the present one, alleging that injuries were sustained as a result of a town's tortious construction and/or maintenance of a barrier to a discontinued highway or bridge.

The present action is not barred by any doctrine that immunizes municipalities from tort liability. In Merrill v. City of Manchester, 114 N.H. 722, 332 A.2d 378 (1974), this court abolished the judicially-fashioned defense of municipal immunity. However, Merrill 's holding was prospective only; it was to apply only to torts occurring on or after July 1, 1975. Thus, as a general proposition municipalities were immune from tort liability at the time of Canterbury's alleged tort in the case at bar. Nevertheless, the general rule of immunity had exceptions. One such exception was RSA 412:3 (amended July 1, 1975) (hereinafter RSA 412:3), which permitted towns to purchase insurance coverage against certain types of risks. The statute went on to provide that:

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. Provided, however, that liability in any such case shall not exceed the limits of coverage specified in the...