Public Safety on the Roadways: Duties and Protections Under the Law

By Paul G. Sanderson, Esq.

It is easy to take public facilities for granted. Keeping those facilities maintained and in repair is not an easy task, and use of facilities such as highways or the town hall often cannot stop while municipal staff or contractors perform the work. In the recent New Hampshire Supreme Court case of Appeal of the New Hampshire Department of Transportation, decided October 28, 2005, the court was faced with the claim of a motorist whose vehicle was damaged by a state snowplow. The auto and the plow attempted to occupy a narrow bridge at the same time during a snowstorm. The attempt failed, and the motorist claimed that the state was liable for the damage.

Q. Do state and municipal vehicle operators have the benefit of special legal protections when they are engaged in emergency operations?
A. Yes. RSA 265:8 permits the operators of “emergency vehicles," defined in RSA 259:28 as police, fire, and ambulance vehicles, to violate the “rules of the road" contained in RSA 265 as to speed, parking, passing through a red light, and making turning movements. There are limits to the protection. The operator must be responding to the emergency, not returning from the scene. The vehicle must display visual or audible warning signals (lights or sirens), and the operator must always drive with due regard for the safety of others using the road. These limits are why public safety departments spend a significant amount of time and effort in the development and implementation of policies regarding the “hot pursuit" of a criminal, the driving tactics to be employed when using heavy equipment to respond to a fire or emergency scene, or the methods used by an ambulance to both reach the scene of an injury and transport a patient for medical care. The colors of the emergency signal lights are specified by the Department of Safety in administrative rules found in the Saf-C 3200 chapter.

Q. What about the snowplow? Isn’t a plowing operation during a snowstorm an emergency response?
A. No. These vehicles are not described in RSA 265:8. Also, very few snowstorms actually constitute an “emergency." Removal of a few inches of snowfall is a routine matter during a New Hampshire winter, and are covered by different statutes, found at RSA 265:6 and 265:6-a. The operator of a vehicle “actually engaged in work upon the surface of a highway" is excused from complying with the rules of the road, but only so far as is “reasonably necessary for the completion of the work." The operator must display “emergency lights," using the color specified by the Department of Safety in its administrative rules. Just as with the police and fire vehicles, the protections last only so long as the vehicle and operator are actually engaged in the construction or maintenance work, and not when the work is done and the vehicle is returning to where it is stored.

Q. What happened to the snowplow driver on the bridge?
A. The snowplow driver was not held responsible for the damage, because the plow was being operated at a low speed, it had moved over in its lane as far as physically possible, and its amber emergency lights were in operation. In the words of the statute, the vehicle was “obviously and actually engaged in work upon a highway" and “display[ed] emergency lights." If any one of those facts had been different, the result might have changed.

Q. Are there other special protections that relate to non-emergency maintenance work?
A. Yes. The issue of protecting workers in a highway construction or maintenance zone is one of national importance. Speeding in a work zone yields enhanced penalties pursuant to RSA 265:60, V. Failure to obey a police officer or flag person directing traffic also yields enhanced penalties to the motorist pursuant to RSA 265:3, 3-a, or 3-b.

Q. Do municipal employees have any duties when they start work in a highway area?
A.
Yes. There is a federal law and regulation called the Manual on Uniform Traffic Control Devices (MUTCD), which is applicable in New Hampshire, and contains detailed requirements for traffic control in a work zone. It is important to comply with these provisions for several reasons, the most important of which is that they serve to protect the safety of both construction workers and motorists traveling in the work zone. From a liability perspective, if the municipality has complied with the MUTCD, then the workers are “obviously and actually engaged in work on a highway," and the chances that the municipality will be found liable for an injury are greatly reduced.

Q. Where can I get more information on this topic?
A. In addition to the text of the New Hampshire statutes and administrative rules, which are available on the state Web site at www.nh.gov, refer to these sources: