Trull v. Town of Conway

• Court: New Hampshire Supreme Court
• Writing for the Court: BROCK
• Citation: Trull v. Town of Conway, 669 A.2d 807, 140 N.H. 579 (N.H. 1995)
• Decision Date: 28 December 1995
• Docket Number: No. 94-869,94-869
• Parties: David TRULL and another. v. TOWN OF CONWAY and another.

Page 807

669 A.2d 807

140 N.H. 579

David TRULL and another. v. TOWN OF CONWAY and another.

No. 94-869.

Supreme Court of New Hampshire.

Dec. 28, 1995.

Cooper, Deans & Cargill, P.A., North Conway (Randall F. Cooper, on the brief and orally), for the plaintiffs.

Cleveland, Waters and Bass, P.A., Concord (Craig L. Staples, on the brief, and Thomas F. Kehr, on the brief orally), for defendant Town of Conway.

Jeffrey R. Howard, Attorney General (Mark P. Hodgdon, Assistant Attorney General, on the brief), for defendant State of New Hampshire Department of Transportation.

BROCK, Chief Justice.

The defendant, the Town of Conway (town), brings this interlocutory appeal from an order of the Superior Court (O'Neill, J.) denying its motion to dismiss. See Sup.Ct.R. 8. We reverse and remand.

The following questions have been transferred to us:

I. Whether, as a matter of law, a municipal police officer possesses any legal duty to warn of icy conditions on a state roadway? See Hartman v. Town of Hooksett, 125 N.H. 34, 480 A.2d 12 (1984).

II. Whether, as a matter of law, a municipal police officer possesses any statutory duty to warn of icy conditions on a state roadway under RSA 105:3; RSA 106-B:15; RSA 230:78 et seq.; RSA 231:90, et seq.; former RSA 231:93 or otherwise?

III. Whether, as a matter of law, it was reasonably foreseeable to the defendant, under the facts of this case, that an accident would occur at this location on this roadway and in this manner?

The plaintiffs allege the following facts. During the evening of February 19, 1991, a Conway police officer, Richard Roderick, was traveling on Route 113 where he observed a Jeep in the breakdown lane with its emergency flashers activated. Upon investigation, the officer was advised that the Jeep had slid on "black ice."

Officer Roderick parked his vehicle on the side of Route 113 and observed a pickup truck slide across the road and strike a snow bank. He activated the blue lights on his police cruiser and pulled into the breakdown lane to assist the pickup truck. The officer spoke to the occupants of the vehicle, learned that they were unharmed, and noticed that the road was difficult to walk on due to the icy condition.

Officer Roderick contacted the radio dispatcher for the Conway Police Department and requested that the State Department of Transportation be notified of the icy conditions on Route 113 so that the State could treat the condition as soon as possible. Officer Roderick then left the area. Shortly after his departure, plaintiff David Trull, who was driving eastbound on Route 113, lost control of his vehicle, which slid across the center line, striking a westbound vehicle driven by plaintiff Bettina Pleau. One passenger in the Trull vehicle was killed and three others seriously injured. Bettina Pleau was seriously injured and a passenger in her car killed.

Trull and Pleau filed suit against the town and against the State of New Hampshire, alleging negligence. The State is not a party to this appeal. The town filed a motion to dismiss which the trial court denied. The court ruled that the holding in Hartman v. Town of Hooksett, 125 N.H. 34, 480 A.2d 12 (1984), that a town owed no duty to the general public to warn of a defect on a State highway, is not dispositive of the plaintiffs' claim because "the plaintiffs do not allege that their accident resulted from the Town's failure to warn of a defect in a State highway." The court also held that because the plaintiffs do not allege that the town's duty arose as a result of a failure to maintain or repair the State highway, the town is not shielded by the immunity set forth in former RSA 231:93 (1982). Finally, the court ruled that the plaintiffs' writ sufficiently alleged that the police officer assumed a voluntary duty of care towards the plaintiffs.

Liability for negligence arises only upon the violation of a duty owed to one person by another. A duty is not created solely because of superior knowledge by one individual over another. See Conway Bank v. Pease, 76 N.H. 319, 326-27, 82 A. 1068, 1072-73 (1912).

In Hartman, we considered 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. We held that "[i]n certain circumstances, a town may be liable for injuries occurring on roads under its control, but not for injuries on roads over which it exercises no control." Hartman, 125 N.H. at 37, 480 A.2d at 14.

The parties do not dispute that Route 113 is a class II highway over which control and responsibility for maintenance rests exclusively with the State. See RSA 231:93 (1982). The plaintiffs argue that they do not allege that the town was negligent in maintaining the State highway but rather that the town owed a duty to warn of a dangerous condition of which it had actual knowledge. The plaintiffs distinguish a defect in the road from an emergent, dangerous condition. Cf. Bergen v. Koppenal, 52 N.J. 478, 246 A.2d 442, 444 (1968) (upholding duty owed by local officer to warn of emergent road conditions on State road if condition unlikely to be discovered by motorist). The essential element in Hartman, 125 N.H. at 37, 480 A.2d at 14, however, was not the nature of the condition, but the fact that responsibility to act is dictated by control. As we explained further inDoucette v. Town of Bristol, 138 N.H. 205, 635 A.2d 1387 (1993), "[b]ecause the road where the accident occurred was a State highway rather than a town road, the town owed no duty to the general public or the plaintiff to warn of defects on that road." Id. at 207, 635 A.2d at 1389.

The plaintiffs also argue that pursuant to Weldy v. Town of Kingston, 128 N.H. 325, 514 A.2d 1257 (1986), police officers are obligated to protect the general public; because Route 113 is under the exclusive police jurisdiction of the town, their duty to protect the general public extends to safety hazards on State highways. Merely because the town's police officers travel and regulate traffic upon this State highway,...