Hartman v. Town of Hooksett
| Decision Date | 04 May 1984 |
| Docket Number | 83-302,Nos. 83-261,s. 83-261 |
| Citation | 125 N.H. 34,480 A.2d 12 |
| Parties | Dorothy HARTMAN v. TOWN OF HOOKSETT et al. |
| Court | New Hampshire Supreme Court |
Wiggin & Nourie, Manchester (Richard B. McNamara, Manchester, on the brief), by brief for plaintiff.
Brown & Nixon P.A., Manchester (David W. Hess, Manchester, on the brief), by brief for defendants.
The plaintiff brought suit in separate actions against the Hooksett Police Commission and the Town of Hooksett, alleging that the defendants were negligent in failing to warn the plaintiff of a defect in a State highway resulting from frost actions. The defendants filed motions to dismiss on the ground that the pleadings failed to state a cause of action. After a hearing on the motions, the Superior Court (Nadeau, J.) granted defendants' motions to dismiss. Plaintiff appeals from those orders. For the reasons set forth below, we affirm.
"In ruling on a motion to dismiss, all facts properly pleaded by the plaintiff are deemed true, and all reasonable inferences derived therefrom are construed most favorably to the plaintiff." Weld Power Industries, Inc. v. CSI Technologies, Inc., 124 N.H. 121, 467 A.2d 568 (1983).
In the declaration to her writ, the plaintiff alleges: that on October 11, 1980, she was operating her automobile on Route 101B, a State highway, in Hooksett; that her automobile struck a defect in the highway caused by frost action; that Hooksett police officers frequently traveled over this portion of the State highway; that the Hooksett police knew or should have known of the defect's existence; and that she and her automobile were damaged when her automobile struck the defect in the highway.
In addition, in her declaration she posits a duty of the defendants to warn travelers of defects in the roadway. She goes on to allege that a breach of this duty was the proximate cause of the damages she suffered.
In granting the defendants' motion to dismiss the plaintiff's writ for failure to state a cause of action, the superior court ruled, as a matter of law, that the defendants had no duty to warn, under the alleged facts, of a defective condition in a State highway over which the defendants had no control, and which they had no duty to repair. Therefore, the issue before this court is whether, as a matter of law, either a municipality or its police force has a duty to warn travelers about a defect in a State highway.
Plaintiff first argues that the Hooksett police, as conservators of the peace under RSA 105:3, have a duty to the public generally or to the plaintiff specifically to warn of defective conditions in the public ways controlled and maintained by the State.
A majority of courts in other jurisdictions have found that the duty of policemen to act as conservators of the peace is a public duty, and that a violation of that duty is actionable only in particular circumstances. See, e.g., Warren v. District of Columbia, 444 A.2d 1 (D.C.App.1981); Annot. 46 A.L.R.3d 1084. To sustain liability against a municipality or its servants, the duty breached must be more than a duty owing to the general public. Id. at sec. 3. There must exist a special relationship between the municipality and the plaintiff, resulting in the creation of a duty to use due care for the benefit of particular persons or classes of persons. Id. at sec. 4; 18 E. McQuillin, Municipal Corporations, sec. 53.04(b).
The circumstances under which such a duty exists usually involve situations where the defendant fails to discharge a duty voluntarily assumed or fails to give a promised warning. Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969); Florence v. Goldberg, 44 N.Y.2d 189, 404 N.Y.S.2d 583, 375 N.E.2d 763 (1978).
The plaintiff relies upon Florence v. Goldberg, id., to support her theory. In Florence, the police department had voluntarily assumed the service of providing crossing guards at busy intersections for school children. The department had written specific rules and procedures to notify the appropriate authorities when a guard would not be present so that a replacement...
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Jean W. v. Com.
...285-286 (Minn.1981); State v. Sanders, 756 S.W.2d 536, 538 (Mo.1988); Frye v. Clark County, 97 Nev. 632, 633 (1981); Hartman v. Hooksett, 125 N.H. 34, 36, 480 A.2d 12 (1984); O'Connor v. City of New York, 58 N.Y.2d 184, 189-190, 460 N.Y.S.2d 485, 447 N.E.2d 33 (1983); Braswell v. Braswell, ......
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Marsha Sawicki v. Village of Ottawa Hills, 86-LW-3752
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Ford v. N.H. Dep't of Transp., 2011–262.
...on it. Trull, 140 N.H. at 581, 582, 669 A.2d 807; see RSA 231:93. Trull is consistent with an earlier case, Hartman v. Town of Hooksett, 125 N.H. 34, 480 A.2d 12 (1984), in which we held that neither a municipality nor its police force had a duty to warn travelers about a defect in a class ......
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