Felts v. City of Rochester

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford
Case No. 2024-0027
Citation: Felts v. City of Rochester, 2025 N.H. 16

RAYMOND FELTS

v.

CITY OF ROCHESTER

Argued: September 25, 2024
Opinion Issued: April 16, 2025

Shaheen & Gordon, P.A., of Dover (Brittani L. Pelissier and Anthony M.
Carr on the brief, and Brittani L. Pelissier orally), for the plaintiff.

Gallagher, Callahan & Gartrell, P.C., of Concord (Keelan B. Forey and
Matthew V. Burrows on the brief, and Matthew V. Burrows orally), for the
defendant.

BASSETT, J.

¶1 In this interlocutory appeal, the defendant, the City of Rochester
(City), challenges orders of the Superior Court (Will, J.) ruling that the City is
not entitled to limited liability under RSA 231:92, I (2009) for injuries sustained
by a pedestrian who was using a crosswalk that lacked warning signs or
signals. See Sup. Ct. R. 8. We accepted the following question for our review:
“Do pedestrian warning signs, crossing signals, and other traffic controls fall
within the meaning of ‘highway’ under RSA 231:92?” We answer in the
affirmative and, therefore, vacate and remand.

¶2 We accept the statement of the case and facts as presented in the
interlocutory appeal statement and rely upon the record for additional facts as
necessary. Dolbeare v. City of Laconia, 168 N.H. 52, 54 (2015). In December
2020, the wife of the plaintiff, Raymond Felts, was struck and injured by a
motor vehicle while she was walking across North Main Street in Rochester
within a painted crosswalk. She later passed away as a result of her injuries.
At the time of the collision, the painted crosswalk was not accompanied by any
warning signs, signals, or traffic controls.

¶3 In January 2022, the plaintiff — individually and as executor of his
wife’s estate — filed this suit. The complaint alleges alternative claims of
negligence and violation of RSA 231:90-:92 on behalf of the estate and a loss of
consortium claim on behalf of Felts individually. These claims are premised on
the City’s alleged failure to design, monitor, and maintain the crosswalk in a
reasonably safe condition, including its failure to install warning signs, lights,
or other signals related to the crosswalk. The City moved to dismiss all three
claims. As relevant here, the City argued that the plaintiff’s negligence claim
should be dismissed because, under RSA 231:92, the City is entitled to limited
liability for personal injury arising out of its construction, maintenance, or
repair of public highways. See RSA 231:92, I.

¶4 The trial court granted in part and denied in part the City’s motion
to dismiss on this issue. Based on the plain language of the statute and the
fact that crosswalks are physically and functionally inseparable from the
highway, whereas pedestrian warning signs “can be placed and removed” and
“serve a separate purpose,” the trial court concluded that “highway” as used in
RSA 231:92 includes crosswalks but not accompanying pedestrian warning
signs or signals. It therefore granted the City’s motion to dismiss the
negligence claim to the extent the complaint alleged that the City negligently
maintained the crosswalk itself and denied the motion as to the allegations
that the City negligently failed to place crossing signals, warning signs, or other
traffic controls alerting motorists to the crosswalk. The City unsuccessfully
moved for reconsideration, and this interlocutory appeal followed.

¶5 Because the interlocutory question presents an issue of statutory
interpretation, our review is de novo. See Cloutier v. City of Berlin, 154 N.H.
13, 17 (2006). When interpreting a statute, we first examine the language of
the statute, and, where possible, ascribe the plain and ordinary meanings to
the words used. See id. We do not consider words and phrases in isolation,
but rather within the context of the statute as a whole. Appeal of Michele, 168
N.H. 98, 102 (2015). When a statute’s language is plain and unambiguous, we

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need not look beyond it for further indication of legislative intent, and we will
not consider what the legislature might have said or add language that the
legislature did not see fit to include. Cloutier, 154 N.H. at 17. Our goal is to
apply statutes in light of the legislature’s intent in enacting them, and in light
of the policy sought to be advanced by the entire statutory scheme. Id.

¶6 We begin with the statutory context of RSA 231:92. Under RSA 507-
B:5, governmental units, including cities, have immunity for “any action to
recover for bodily injury, personal injury or property damage except as provided
by [RSA chapter 507-B] or as is provided or may be provided by other statute.”
RSA 507-B:5 (2010); see also RSA 507-B:1, I (2010) (defining “Governmental
unit”); Dichiara v. Sanborn Reg’l Sch. Dist., 165 N.H. 694, 696 (2013). One
such exception to the immunity granted in RSA 507-B:5 is RSA 507-B:2, which
provides that a governmental unit may be liable in an action to recover for
bodily injury, personal injury, or property damage caused by “its fault or by
fault attributable to it, arising out of ownership, occupation, maintenance or
operation of all motor vehicles, and all premises; provided, however, that the
liability of any governmental unit with respect to its sidewalks, streets, and
highways shall be limited as provided in RSA 231.” RSA 507-B:2 (2010)
(emphasis added); Dichiara, 165 N.H. at 696.

¶7 RSA 231:92, I, in turn, provides that: “A municipality shall not be
held liable for damages in an action to recover for personal injury or property
damage arising out of its construction, maintenance, or repair of public
highways and sidewalks constructed thereupon unless such injury or damage
was caused by an insufficiency, as defined by RSA 231:90,” and the
municipality’s notice, knowledge, or intent and failure to take appropriate
corrective action related to the insufficiency is established. RSA 231:92, I
(emphases added). Because RSA 231:92, I, provides that a municipality shall
not be held liable for certain types of injuries unless certain statutory
requirements are met, we have described it as conferring “limited liability” or,
in other words, “some degree of immunity,” upon municipalities. Cloutier, 154
N.H. at 20.

¶8 On appeal, the City argues that the plain meaning of “highways,”
when read in the context of the statutory scheme and in light of the
legislature’s purpose in enacting RSA 231:90-:92, includes pedestrian warning
signs, crossing signals, and other traffic controls (hereinafter, pedestrian
warning signs). The plaintiff counters that the trial court correctly interpreted
the plain meaning of “highways” as denoting only the physical surface of the
road itself and not pedestrian warning signs, which are “separate and apart
from a highway.” We agree with the City.1

1 Given the scope of the interlocutory question, we need not decide whether signs, signals, or other

traffic controls not associated with pedestrian travel fall within the meaning of “highways” under
RSA 231:92.

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 [¶9] We look first to the language of the statute and the plain meaning of
the words used. See Cloutier, 154 N.H. at 17. The legislature has not defined
“highways” generally for the purposes of RSA chapter 231. See RSA ch. 231
(2009 & Supp. 2024). Nor did it define the term specifically for the purposes of
the subdivision of RSA chapter 231 at issue here, which is entitled “Liability of
Municipalities.” See RSA 231:90-:110 (2009). When a term is not defined in
the statute, we look to its common usage, using the dictionary for guidance.
Michele, 168 N.H. at 102.

¶10 The plain meaning of “highway” is “a road or way on land or water
that is open to public use as a matter of right whether or not a thoroughfare : a
public road or way (as a footpath, road, or waterway) including the right-of-
way.” Merriam-Webster’s Unabridged Dictionary, https://unabridged.
merriam-webster.com/unabridged/highway (last visited Apr. 2, 2025).
Similarly, the legislature has elsewhere defined “highways” in relevant part as
“roads which have been constructed for or are currently used for motor vehicle,
bicycle, or pedestrian public travel.” RSA 229:1 (Supp. 2024). Both definitions
are broad: they do not expressly limit the meaning of “highway” to the surface
of the road or exclude from its scope pedestrian warning signs existing above
the surface of the road. See Michele, 168 N.H. at 103 (observing that words at
issue in statutory interpretation question had “broad definitions” and stating
that we will not “limit the meaning of the terms when the legislature did not see
fit to do so”). This broad understanding of “highway” is supported by our
common law, which defines “highway” as “comprehend[ing] every public
thoroughfare, whether road or sidewalk, with its soil and all the space above
it.” State v. Scott, 82 N.H. 278, 278-79 (1926) (emphasis added; citation
omitted).

¶11 We must also consider the plain meaning of “highway” in the
context of the statutory scheme, not in isolation. See Michele, 168 N.H. at 102.
We see no language in the statutory subdivision governing municipal liability
that reflects legislative intent to narrow the meaning of “highway” to the
surface of the road. See RSA 231:90-:110. To the contrary, other provisions of
this subdivision reflect legislative intent that pedestrian warning signs be
considered a part of the highway. The limited liability provision in RSA 231:92,
I, refers to the definition of “insufficiency” in RSA 231:90, which in turn
provides that a highway or sidewalk is insufficient only if:

(a) It is not passable in any safe manner by those persons or
vehicles permitted on such sidewalk or highway by state law or by
any more stringent local ordinance or regulation; or

(b) There exists a safety hazard which is not reasonably
discoverable or reasonably avoidable by a person who is traveling
upon such highway at posted speeds or upon such sidewalk, in
obedience to all posted regulations, and in a manner which is

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 reasonable and prudent as determined by the condition and state
or repair of the highway or sidewalk, including any warning signs,
and prevailing visibility and weather conditions.

RSA 231:90, II (emphasis added). RSA 231:90, II(b) provides that a highway is
insufficient if there exists a safety hazard that is not reasonably discoverable or
avoidable by a person traveling in compliance with posted speeds and
regulations and in a reasonable and prudent manner. See RSA 231:90, II(b).
Whether a person is traveling in a reasonable and prudent manner depends
upon “the condition and state or repair of the highway or sidewalk” and the
“prevailing visibility and weather conditions.” Id. The statute provides that
“the condition and state or repair of the highway or sidewalk” “includ[es] any
warning signs.” Id. In other words, this definition of insufficiency
contemplates that warning signs are part of the “condition” or “state” of the
highway itself, not separate from it. See id.

¶12 The language of RSA 231:94 and :95 is also consistent with a
construction of “highway” that includes pedestrian warning signs. Read
together, RSA 231:94 and :95 provide that a municipality’s warning of a
dangerous embankment is sufficient if made by railings, posts, or other
warning signs erected on the highway that have been approved by the
Department of Transportation, see RSA 231:94-:95, and that proof of such
approval shall serve “as evidence of the sufficiency of such railings, posts, or
other warning signs or structures,” RSA 231:95. Reading these provisions in
the context of the statutory subdivision, the presence of railings, posts, or
warning signs deemed sufficient under RSA 231:94-:95 may impact whether a
highway is insufficient under RSA 231:90, II. See RSA 231:90, II, :94-:95.

¶13 In sum, contrary to the plaintiff’s assertions, there is statutory
language that contemplates that pedestrian warning signs are part of the
highway and that their presence or absence should be considered when
determining whether the highway is “insufficient” under RSA 231:90. We
therefore conclude that the plain meaning of “highways” in RSA 231:92 when
read in the context of the statutory scheme supports a construction of the term
that encompasses pedestrian warning signs.

¶14 Our case law interpreting other language in RSA 231:92 further
buttresses this conclusion. In Richard v. Pembroke School District, 151 N.H.
455, 456-58 (2004), we addressed whether the plaintiff’s injury arose out of the
defendant school district’s maintenance of a sidewalk such that RSA 231:92, I,
applied to her claim. The plaintiff alleged that she was injured after tripping
over a curb that directly abutted a sidewalk on the school district’s premises
and that she failed to see the curb because it was obscured by overgrown
grass. See id. at 457-58. We stated that the plain meaning of “sidewalk” is “a
walk for foot passengers.” Id. at 458 (quotation omitted). Even though the
definition of “sidewalk” did not expressly mention “curbs,” we concluded that

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the curb was part of the sidewalk because it “directly abutted the sidewalk
such that it formed a part of the walk for foot passengers.” Id. In short, the
curb was “essentially inseparable from, and an integral part of, the sidewalk.”
Id. We therefore concluded that the school district’s failure to maintain the
grass along the curb was an issue of sidewalk maintenance within the scope of
RSA 231:92, I. See id. at 456-58.

¶15 Although in Richard we focused on the fact that the curb and the
sidewalk were physically inseparable, see id. at 458, analogous reasoning
applies here as to the functional relationship between the road surface and
pedestrian warning signs. As explained above, a “highway” is “a road or way
on land or water that is open to public use as a matter of right.” Merriam-
Webster’s Unabridged Dictionary, supra. It is well established that the public
has a right to use highways for all acts reasonably incident to “‘viatic use’” —
that is, use of the road “as a means of travel.” Hartford v. Gilmanton, 101 N.H.
424, 426-27 (1958) (quoting Lydston v. Company, 75 N.H. 23, 24 (1908)).
Viatic use encompasses both pedestrian and motorist travel. See id.
(summarizing case law); see also RSA 229:1 (defining “[h]ighways,” in relevant
part, as “roads which have been constructed for or are currently used for motor
vehicle, bicycle, or pedestrian public travel”).

¶16 Pedestrian warning signs are integral to the public’s viatic use of
highways and sidewalks — they function in tandem with the surface of the
road to facilitate travel. Like the lines of a crosswalk painted on the surface of
the road, pedestrian warning signs ensure the safe crossing of pedestrians from
one side of the road to the other by stopping motorist traffic or by alerting
motorists to the actual or potential presence of pedestrians. Although perhaps
physically severable from the surface of the road, pedestrian warning signs
would have no function if separated from the surface of highways and
sidewalks. Cf. Johnson v. City of Laconia, 141 N.H. 379, 380-81 (1996)
(holding that meaning of “highways, bridges, or sidewalks” in RSA 231:92-a
does not encompass “parking lots” in part because parking lots may only “on
occasion[] be functionally related to highways, bridges, or sidewalks” (emphasis
added)).

¶17 Finally, we observe that our interpretation of “highways” as
including pedestrian warning signs is consistent with the legislature’s purpose
in enacting RSA 231:92. See Cloutier, 154 N.H. at 17 (“Our goal is to apply
statutes in light of the legislature’s intent in enacting them . . . .”); State v.
Wilson, 169 N.H. 755, 763-64, 767 (2017) (relying upon legislative statement of
purpose articulated in session law to interpret unambiguous statutory
language). In City of Dover v. Imperial Casualty & Indemnity Company, 133
N.H. 109, 119-20 (1990), we held that a prior version of RSA 507-B:2, I —
which provided complete immunity to municipalities from tort liability arising
from ownership or maintenance of highways, streets, and sidewalks — was
unconstitutional. In response, the legislature drafted legislation limiting

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municipal liability and asked for our opinion as to its constitutionality. See
Opinion of the Justices, 134 N.H. 266, 268-70 (1991). We replied that the
proposed amendments largely passed constitutional muster because they
limited municipal liability to instances where the municipality received actual
notice of an insufficiency in a highway or sidewalk and failed to take corrective
action. See id. at 275-77. The legislature then repealed and reenacted RSA
507-B:2 and RSA 231:90-:92 in Senate Bill 151-FN. See Laws 1991, 385:2-:5,
:9; Cloutier, 154 N.H. at 20.

¶18 The stated purpose of Senate Bill 151-FN was “to provide
municipalities with the greatest possible protection from highway and sidewalk
liability, consistent with the constitution.” Laws 1991, 385:1. Nothing in the
legislative statement of purpose evinces an intent to limit municipal immunity
to injuries arising only from insufficiencies in the surface of the road or
sidewalk. See id.

¶19 Considering the statutory language with this context in mind, we
conclude that the legislature’s purpose was to maximize municipal protection
from highway and sidewalk liability while also ensuring that individuals have a
right to recover under limited circumstances. See id.; cf. Franciosa v. Hidden
Pond Farm, 171 N.H. 350, 356 (2018) (reading statutory language and
statement of intent together to discern legislative purpose of shielding persons
from liability arising from inherent risks of equine activity while also ensuring
that persons injured by such activities have a right to recover under narrowly
defined circumstances). A broad construction of “highway” that includes
pedestrian warning signs is consistent with this purpose in that it does not
upset the balance struck between protecting municipalities and permitting
limited recovery: claims arising from insufficiencies related to pedestrian
warning signs will be subject to the same notice and pleading standards as
claims premised upon insufficiencies in the surface of the traveled way. See
RSA 231:90-:92. Of course, if the legislature disagrees with our construction of
RSA 231:92, it is free, within constitutional limits, to amend the statute
accordingly. See Petition of State of N.H., 175 N.H. 547, 555 (2022).

¶20 For all these reasons, we hold that the meaning of “highways” as
used in RSA 231:92 includes pedestrian warning signs and, therefore, answer
the interlocutory question in the affirmative. We vacate the trial court’s ruling
that RSA 231:92 does not apply to the plaintiff’s claim to the extent that it is
premised upon the City’s failure to place pedestrian warning signs at the
crosswalk where the collision occurred and remand.

Vacated and remanded.

MACDONALD, C.J., and DONOVAN and COUNTWAY, JJ., concurred.

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