Understanding the Special Legal Issues that Apply to Bridges

By Nolan Koon, Esq

Some are surprised to learn that a bridge that services a public road is part of the public highway. A bridge is defined as a structure on a public highway that has a clear span of 10 feet or more, which spans a water course or other opening or obstruction. RSA 234:2. As part of the public highway, legal issues are, for the most part, identical to any other municipal road. However, some issues are unique to bridges. The following is a brief overview of maintenance and liability issues relating to bridges.

Q. Is there a minimum required load-bearing capacity for bridges on municipal highways?
A. Yes. The minimum required load-bearing capacity of bridges on municipal highways is six tons. RSA 234:39. If the municipality has applied for bridge aid from the state and the application is pending, the six-ton limit can be reduced to three tons. All load limits must be posted. A bridge will be considered “insufficient” (under RSA 231:90 through 92) if it cannot carry either the six-ton limit or whatever load is designated as the posted limit. Obviously, in such instances, some action should be taken, such as posting the bridge for a lesser weight.

Q. Are there different capacity requirements if the bridge was built or reconstructed with state bridge aid?
A. Yes. Capacity requirements are different if the bridge was built or reconstructed with state bridge aid. Under RSA 234:4, newly constructed bridges, which were financed with state aid, must be capable of carrying all motor vehicles that can legally travel on non-interstate highways under RSA 266:18-a through 18-c.

Q. Can the state recommend maintenance standards on town bridges?
A. Yes. Importantly, the above-capacity standards are construction, and not maintenance, requirements. The higher load-carrying requirement of RSA 234:4 only applies to the initial construction. Municipalities are not mandated to maintain bridges to these state-law carrying capacities, and the minimum maintenance duty is the six-ton limit. RSA 234:39. Nevertheless, the New Hampshire Department of Transportation (DOT) considers a municipality’s compliance with RSA 234:4 as part of the state bridge aid application process.

Further, bridges constructed or reconstructed using bridge aid funds must be maintained “to the satisfaction of the commissioner of transportation.” RSA 234:20. If a municipality does not comply with repair or maintenance orders of the commissioner, the DOT reserves the right to perform the work and charge the cost plus a ten percent penalty to the municipality. It should be noted that the commissioner has issued few, if any, such orders.

Q. Is there a legal duty to inspect municipal bridges?
A. Yes. Under RSA 234:23, a municipality must inspect all bridges on town roads every two years. The DOT may provide assistance with respect to these inspections, to the extent that it has available personnel, at no cost to the municipality. The statute recommends hiring qualified engineers for the purpose of these inspections. A report must be made of each inspection. Reports must be retained as municipal records and should be incorporated into a municipality’s insufficiency reporting system. If a town does not comply with this statutory inspection requirement, it cannot apply for state bridge aid. More importantly, the failure to inspect may expose a municipality to significant liability.

Q. Is there potential liability to a municipality for not responding to an inspection report?
A. Yes. Preliminarily, a municipal official is generally not liable for performing discretionary functions. As part of the public highway, bridges are subject to municipal highway liability statutes (for example, RSA 231:90 through 92-a). A municipality’s duty toward travelers to protect them from hazardous road conditions is dictated by RSA 231:90 through 92-a. An “insufficiency” is when a highway, including a bridge, is either not safely passable by vehicles permitted to use such highway or there exists a safety hazard not reasonably discoverable or reasonably avoidable by a person when using the highway in a reasonable, prudent and lawful manner. Even when there is an insufficiency that causes damage, municipal liability is not automatic. Under New Hampshire law, a municipality is only liable if, pursuant to RSA 231:92, certain conditions are satisfied. For instance, in order to recover damages against a municipality for an insufficiency, a plaintiff would have to show, among other things: the municipality received written notice of the insufficiency; or the insufficiency was created by an intentional act of a local official. Upon receiving written notice of an insufficiency, a municipality must immediately place warning signs and, within 72 hours, develop a repair plan. RSA 231:91.

A municipality’s duty to inspect bridges is arguably a non-discretionary duty. Thus, a failure to inspect is potentially an intentional act under RSA 231:92, I(c), for which the municipality might be held liable. If an inspection identifies an insufficiency, it should be treated as if a written “notice of insufficiency” had been filed under RSA 231:91. Warnings must be posted immediately, and some plan of action should be developed within 72 hours. RSA 231:92-a.

Q. Can a municipality temporary close a bridge for repair?
A. Yes. Occasionally, it is necessary to close a bridge when it cannot safely support six tons, or even the three-ton limit (when bridge aid applications are pending). Under such circumstances, a municipality may completely discontinue the bridge in the same manner as any other section of a public highway. RSA 231:43. For example, in order to discontinue a highway, a town must, among other things: obtain approval from the legislative body and provide written notice to all owners abutting the highway.

If a municipality intends to rebuild a bridge, it may temporarily close the bridge in order to perform the work. RSA 234:38. Individuals, who are deprived of all reasonable access to their property, are entitled to damages. Damages are measured by the property’s rental value during the closed period. Capital Plumbing & Heating v. State, 116 N.H. 513 (1976).