Cited by

Works & Highways, 136 N.H. 202, 205 (1992) (decision of whether to place guardrails is discretionary function).

Gardner v. City of Concord, 137 N.H. 253, 257 (1993) (municipal discretionary function immunity case citing DiFruscia v. N.H. Dept. of Public Works, 136 N.H. 202, 203 (1992), a State discretionary function immunity case); Ford v. N.H. Dep’t of Transp., 163 N.H. 284, 294-96 (2012) (State discretionary function immunity case relying on Everitt v. Gen.

DiFruscia v. N.H. Dept. of Pub.

Works & Highways, 136 N.H. 202, 204 (1992) (“[I]f additional evidence is submitted, 6 without objection, the trial court should consider it when making its ruling [on a motion to dismiss].”).

f the statutory discretionary function immunity for state agencies, see RSA 541-B:19, I(c) (2007), we drew a distinction between the “decision to place or not to place a guardrail on a roadway,” a protected discretionary decision, and the construction of that guardrail, an act of implementation that “neither required nor contained any discretionary decision-making.” DiFruscia v. N.H. Dept. of Pub.

Works & Highways, 136 N.H. 202, 205 (1992) (‘We do not doubt that the decision to place or not to place a guardrail on a roadway is conduct characterized by the high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning.” (quotation omitted)).

Works & Highways, 136 N.H. 202, 205, 612 A.2d 1326 (1992) ("We do not doubt that the decision to place or not to place a guardrail on a roadway is conduct characterized by the high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning."

Works & Highways, 136 N.H. 202, 205 (1992) (‘We do not doubt that the decision to place or not to place a guardrail on a roadway is conduct characterized by the high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning.” (quotation omitted)).

Works & Highways, 136 N.H. 202, 205 (1992) (although decision whether or where to place guardrail on a State highway falls within discretionary immunity, State not immune for failure of State worker to install specific guardrail); Bergeron, 140 N.H. at 422 (State immune from liability for decision whether to install flashing beacon at intersection)

Although the trial court’s decision on a motion to dismiss is normally “based solely on the allegations in the pleadings, if additional evidence is submitted, without objection, the trial court should consider it when making its ruling.” DiFruscia v. N.H. Dept. of Pub.

Works & Highways, 136 N.H. 202, 205, 612 A.2d 1326, 1328 (1992) (decided under the discretionary function exception to the State’s waiver of sovereign immunity) (decision whether or not to place a guardrail on a highwáy is discretionary).

Works & Highways, 136 N.H. 202, 204, 612 A.2d 1326, 1328 (1992), and we have suggested that a lack of precision in pleadings may be cured by information obtained in pretrial discovery, see Dunn & Sons, Inc. v. Paragon Homes of New Eng., Inc., 110 N.H. 215, 218, 265 A.2d 5, 8 (1970).

Works & Highways, 136 N.H. 202, 205, 612 A.2d 1326, 1328 (1992) (same).

Works & Highways, 136 N.H. 202, 205, 612 A.2d 1326, 1328 (1992) with Gardner v. City of Concord, 137 N.H. 253, 257, 624 A.2d 1337, 1339 (1993), we will address the city and the State’s immunity questions together.

Works & Highways, 136 N.H. 202, 205, 612 A.2d 1326, 1328-29 (1992), we hold that the trial court erred in its assessment of the discretionary function rule.

DiFruscia v. N.H. Dept. of Public Works, 136 N.H. 202, 205, 612 A.2d 1326, 1328-29 (1992) (although the decision whether or where to place a guardrail on a State highway falls within discretionary immunity, the failure of a State worker to install a specified guardrail is not immune from tort liability); see also RSA 541-BH9, 1(c) (Supp. 1992).

In DiFruscia v. New Hampshire Department of Public Works and Highways, 136 N.H. 202, 612 A.2d 1326 (1992), we noted: “We do not doubt that the decision to place or not to place a guardrail on a roadway is conduct characterized by the high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning.” Id.