Tamre McCrea & a. v. New Hampshire Department of Transportation

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0661, Tamre McCrea & a. v. New
Hampshire Department of Transportation, the court on June 24,
2025, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The
plaintiffs, Tamre McCrea and Brian McCrea, appeal a Superior Court order
(Tucker, J.) granting the motion for summary judgment filed by the defendant,
New Hampshire Department of Transportation (NHDOT). The trial court ruled
that: (1) discretionary function immunity bars the plaintiffs’ claims relating to
NHDOT’s formulation of a traffic control plan; and (2) the plaintiffs’ claims
based on the defendant’s negligence in implementing the traffic control plan
are not supported by the facts. See RSA 541-B:19, I(c) (2021). On appeal, the
plaintiffs challenge only the trial court ruling that NHDOT’s negligence in
implementing the traffic control plan is not supported by the facts. We reverse
and remand.

The record before the trial court for summary judgment purposes
supports the following facts. This case arises from a motor vehicle accident
that occurred at 4:30 p.m. on September 27, 2015 at the intersection of Route
106 and Staniels Road in Loudon (intersection). Plaintiff Tamre McCrae was
traveling south on Route 106 when, while attempting to make a left turn onto
Staniels Road, her vehicle collided with a vehicle also traveling southbound and
traveling to the left of her.

At the time of the accident, a race was being held at the New Hampshire
Motor Speedway (NHMS), and a temporary traffic control plan (TCP) was in
effect to accommodate traffic leaving NHMS. During such races at NHMS,
NHDOT, NHMS, the Town of Loudon and others cooperated to alter traffic lanes
in order to accommodate increased traffic created by the racing event. The
TCP, which includes a traffic control schedule, details the actions required,
responsibilities of each participant, and the related dates and times for each
task. Generally, the TCP is designed to accommodate increased northbound
traffic flow before a race, and increased southbound traffic flow after a race.

When southbound traffic increased due to fans leaving NHMS, additional
southbound lanes were created to accommodate motorists traveling south from
NHMS to I-393. In the areas just north and south of the intersection, where
Route 106 provides only one southbound travel lane and one northbound
travel lane, the TCP called for traffic cones to be placed two feet east of the
white edge line, between the northbound travel lane and the northbound
shoulder. Due to a recent construction project completed in or about
September 2015, Route 106 widens from one southbound lane just north of the
intersection to three — one southbound through-right lane, one southbound
through lane, and a southbound left turn lane. The TCP called for the cones to
taper off of the white edge line and move to the yellow center line, approaching
the intersection. The TCP called for NHMS employees to place traffic cones on
Route 106, including in the area of the relevant intersection.

Pursuant to the TCP, at around 2:30 p.m. NHDOT performed a “sweep”
of a portion of the roadway from I-393 to the south entrance of NHMS. During
the “sweep,” NHDOT employees discovered that NHMS had not properly placed
the cones, and had placed them ten feet east of the location required by the
TCP, resulting in the creation of four southbound travel lanes, rather than the
three called for by the TCP. NHDOT employees met with NHMS
representatives, including the manager of NHMS’ highway crew, and notified
them of the misplaced cones. NHMS crew did not correct the cone placement,
NHDOT did not conduct a “second sweep” to verify that the cones were placed
in the right location, and the road was opened to traffic. NHDOT conceded at
oral argument that it was the party responsible for opening the road. Shortly
after the road was opened, plaintiff Tamre McCrae was in the third southbound
lane when she attempted to turn left and collided with a vehicle to her left in a
lane that had been erroneously created by the improper cone placement.

The plaintiffs filed a complaint in September 2018 seeking a jury trial for
damages for personal injury arising out of the accident, naming a number of
defendants, including NHDOT. The plaintiffs alleged, among other things, that
the traffic cones “were located in such a manner that motorists were not
provided with clearly defined traffic lanes,” that NHDOT failed to delineate a left
turn lane independent from the temporary southbound lanes, and that this
caused a defective condition that resulted in the accident.

On February 10, 2020, NHDOT moved for summary judgment, arguing
that any claims arising out of the TCP are barred because NHDOT is protected
by sovereign immunity, see RSA 541-B:19, I(c), and also that NHDOT could not
be held liable pursuant to New Hampshire’s insufficiency law. See RSA
230:78-:80 (2009). On March 1, 2021, the Trial Court (Schulman, J.) granted
the motion in part and denied it in part. The trial court ruled that claims
arising out of the development and creation of the TCP were barred by
discretionary function immunity, but that “the ministerial implementation of
the traffic control plan is not protected by discretionary function immunity.”
NHDOT filed a motion to reconsider, arguing that there was nothing in the
record to support a claim that it had negligently implemented the TCP. NHDOT
also argued that even if it had negligently implemented some portion of the
TCP, the plaintiffs’ claim based on the response to the misplaced cones on the

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day of the accident is barred under the insufficiency statute. See RSA 230:80,
I(b).

The Trial Court (Tucker, J.) granted NHDOT’s motion on October 1,
2021. After the claims against NHDOT were dismissed, the case proceeded as
to the remaining defendants. After those claims were resolved, the plaintiffs
appealed the October 1, 2021 order.

In its October 1, 2021 order, the trial court noted that in denying the
motion for summary judgment in part, it had concluded that “in [its] view,
liability arose from [NHDOT’s] alleged negligence in omitting to report the traffic
issue caused by the cone placement or to correct it.” It then considered
NHDOT’s argument that the court had “misapprehended the facts when it
found evidence of possible liability based on failures to correct or report issues
with cone placement.” It observed that the summary judgment record
established that the plan required NHDOT to report the issue to NHMS, which
was responsible for cone placement. The court then stated:

The formulation of the traffic plan is protected by discretionary
function immunity. [NHDOT’s] omission to move the cones or act
beyond reporting the issue to the speedway is similarly shielded
from liability where the plan placed responsibility for cone
placement with the speedway.

Where the court denied summary judgment based on [NHDOT’s]
negligence in implementing the traffic plan, that ruling is not
supported by the facts. On reconsideration, therefore, [NHDOT’s]
motion for summary judgment is GRANTED in full.

The plaintiffs concede that discretionary function immunity protects the
State from claims relating to the development and creation of the TCP.
However, they assert that the trial court erred in dismissing the claims against
NHDOT because NHDOT’s “failure to fully implement the plan and ensure
adherence to same” is not protected by discretionary function immunity.

When we review a trial court’s grant of summary judgment, we consider
the affidavits and other evidence, and all inferences properly drawn from them,
in the light most favorable to the non-moving party. Farrelly v. City of
Concord, 168 N.H. 430, 448 (2015). We will affirm the grant of summary
judgment if there is no genuine issue of material fact, and if the moving party
is entitled to judgment as a matter of law. Id. We review the trial court’s
application of the law to the facts, and its immunity rulings, de novo. Id.

As a state agency, NHDOT enjoys the State’s sovereign immunity and is
immune from suit in New Hampshire courts unless a statute waives that
immunity. See Mahan v. N.H. Dep’t of Admin. Services, 141 N.H. 747, 749

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(1997). One such statute is RSA chapter 541-B, which waives sovereign
immunity for tort claims against state agencies in some circumstances. See
RSA ch. 541-B (2021). RSA chapter 541-B provides several exceptions to the
waiver of immunity, including “[a]ny claim based upon the exercise or
performance or the failure to exercise or perform a discretionary executive or
planning function or duty on the part of the state or any state agency or a state
officer, employee or official acting within the scope of his office or employment.”
RSA 541-B:19, I(c). This “discretionary function” exception retains
governmental immunity for acts that can be characterized as “an executive or
planning function involving the making of a basic policy decision which is
characterized by the exercise of a high degree of official judgment or
discretion.” Bergeron v. City of Manchester, 140 N.H. 417, 421 (1995). The
retention of sovereign immunity for discretionary functions stems from the
separation of powers doctrine, and “reflects judicial reluctance to evaluate the
wisdom of an executive or legislative choice of public policy goals or the means
to accomplish those goals.” Mahan, 141 N.H. at 749-50. It recognizes that
“certain essential, fundamental activities of government must remain immune
from tort liability so that our government can govern.” Id. at 750 (brackets
omitted).

When resolving whether discretionary function immunity applies in
particular cases, we distinguish between planning or discretionary functions
and functions that are purely ministerial. See Bergeron, 140 N.H. at 421.

We have declined to draw a bright line between discretionary
planning and the ministerial implementation of plans, however.
Rather, we have stated that it would be possible for workers to
implement a faulty design or plan, for which no tort liability should
result, but that if, on the other hand, workers negligently follow or
fail to follow an established plan or standards, and injuries result,
then a government entity could be subject to tort liability.

Id. (quotations and brackets omitted). Accordingly, certain decisions regarding
traffic control, that is, those that “rest on the exercise of judgment and
discretion and represent planning and policy making,” fall within the category
of discretionary functions entitled to immunity. Id. at 422 (quotation omitted)
(decision of whether to install a flashing beacon at an intersection is
discretionary function); see also Gardner v. City of Concord, 137 N.H. 253, 258
(1993) (setting of road maintenance standards a discretionary, policy function);
DiFruscia v. N.H. Dept. of Pub. Works & Highways, 136 N.H. 202, 205 (1992)
(decision of whether to place guardrails is discretionary function). However,
the negligent implementation of a plan that would otherwise be protected by
sovereign immunity can give rise to a negligence claim. See DiFruscia, 136
N.H. at 205 (while decision whether or where to place a guardrail falls within
discretionary function, the State was not immune from suit for a failure of a
state worker to install a specific guardrail).

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 The essential facts informing the question of whether discretionary
function immunity applies to NHDOT’s actions are not in dispute. Pursuant to
the TCP, prior to the accident, NHDOT employees performed a “sweep” of the
relevant portion of the roadway, during which they discovered that the cones
had been improperly placed. NHDOT employees then notified NHMS’ highway
crew of the misplaced cones, but the NHMS crew did not correct the cone
placement. NHDOT neither corrected the cone misplacement nor conducted a
“second sweep” to verify that the cones were placed in the right location before
it opened the road to traffic. NHDOT concedes that the TCP required NHDOT
to both conduct a sweep and notify the responsible party of any deficiency and
also to determine when to open the road to traffic. In light of this, we disagree
with the trial court that the claims against NHDOT for its negligence in
implementing the traffic plan fall within the category of discretionary functions
entitled to immunity. See Bergeron, 140 N.H. at 422. The plaintiff’s claims
that NHDOT was negligent do not, as NHDOT asserts, amount to an “attack[
on] the discretionary policy-making of NHDOT that went into the design of the
TCP.” Rather, the claims allege that NHDOT negligently followed the
established plan, and those claims are supported by the evidence in the
summary judgment record when that evidence, and all reasonable inferences
properly drawn therefrom, are viewed in the light most favorable to the
plaintiffs.

NHDOT argues that the plaintiffs have failed to identify a “non-
discretionary, ministerial act that NHDOT failed to carry out as required by the
TCP.” NHDOT suggests that because the NHMS crew, and not state workers,
improperly placed the cones and then failed to correct the improper placement
after they were notified about the problem, “any error in implementing the TCP
is attributable to the actions of NHMS’ highway crew, not NHDOT.” We
disagree. The non-discretionary ministerial act that NHDOT performed was to
open the road. Accordingly, we reverse the ruling of the trial court granting
NHDOT’s motion for summary judgment on the ground that discretionary
function immunity bars claims against the NHDOT for its alleged negligence in
implementing the TCP.

We note that NHDOT argued in its motion for summary judgment that it
was entitled to immunity under both RSA 541-B:19, I(c) and the insufficiency
law. See RSA 230:78-:80. The trial court dismissed the claims after finding
that they were barred by RSA 541-B:19, and did not reach the question of
whether the claims were barred by the insufficiency law. Because the trial
court did not make any rulings on the applicability of the insufficiency law, we

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decline to address this issue on appeal, and remand this case for further
proceedings.

Reversed and remanded.

BASSETT, DONOVAN, and COUNTWAY, JJ., concurred; ABRAMSON, J.,
retired superior court justice, specially assigned under RSA 490:3, II,
concurred.

Timothy A. Gudas,
Clerk

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