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

Concord, New Hampshire personal injury lawyer represented the Plaintiff on a negligence claim.



. 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.



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Legal issue Does discretionary function immunity protect a state agency from liability for alleged negligence in the ministerial implementation of a traffic control plan?

Headnote



GOVERNMENT LAW. DISCRETIONARY FUNCTION IMMUNITY. The case addresses whether the New Hampshire Department of Transportation (NHDOT) is immune from liability under the discretionary function exception to sovereign immunity for its alleged negligence in the implementation of a traffic control plan during a motor racing event.



TORT LAW. NEGLIGENCE. The issue concerns whether NHDOT's failure to ensure the correct implementation of the traffic control plan, including the proper placement of traffic cones before opening the road to traffic, constitutes negligence not protected by discretionary function immunity.



PROCEDURAL LAW. SUMMARY JUDGMENT. The court reviews the grant of summary judgment, determining that factual questions remain as to whether NHDOT's actions fall outside the protections of sovereign immunity, necessitating a reversal of the trial court's decision.



Key Phrases Discretionary function immunity. Traffic control plan. Sovereign immunity waiver. Negligent implementation. Temporary traffic control.

Reverse and remanded.