The following is an order of the New Hampshire Supreme Court. It may not be cited as precedent under New Hampshire law, but it is of interest as a potential indicator of future Court decisions.
In a decision closely observed by New Hampshire municipalities, the Supreme Court found that the Town of Tilton was required under the Americans with Disabilities Act (ADA) to keep a town sidewalk clear of snow, ice and debris so that it is accessible to and usable by persons with disabilities.
The case involved a disabled plaintiff who sued the Town of Tilton claiming that a particular Town sidewalk on which he frequently traveled in his wheelchair was not cleared of snow and ice, thus blocking his path. Under the ADA, governmental agencies are required to maintain public “facilities” in a manner that makes them readily accessible to and usable by persons with disabilities. The Town agreed that the sidewalk was a “facility” but argued that it had closed the sidewalk during the winter, affecting disabled and non-disabled people equally. However, in an earlier ruling in the same matter, the Court found that seasonal closure did not automatically comply with the ADA.
In this decision, the Court referred to guidance from the Federal Highway Administration to conclude that the Town, as a public entity, has a maintenance obligation for all public facilities which includes “insuring the day-to-day operations keep the path of travel on pedestrian facilities open and usable for persons with disabilities, throughout the year,” including “reasonable” snow removal efforts. However, the Court did not rule on whether the Town’s snow removal efforts were “reasonable” because the Town removed no snow or ice from that sidewalk no matter how inaccessible the sidewalk was rendered. “The refusal to remove any snow is not a reasonable limit upon the removal of snow, but is an abdication by the town of its obligation altogether.”
This decision may raise more questions than it answers. The Court very specifically limited the decision to the particular sidewalk about which the plaintiff had complained, and ruled on no other sidewalk in that or any other town. However, it is unclear (1) whether a municipality is required to keep every sidewalk clear of snow or only specific sidewalks; (2) what “reasonable snow removal efforts” might be, and how long after a storm a municipality may take to clear the sidewalks; (3) what percentage of a municipality’s budget must be spent on snow removal before it becomes an unreasonable burden under the ADA; and (4) why this case involving a federal law was brought in state court.