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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2011-262 STEVEN FORD v. NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION & a. Argued: January 18, 2012 Opinion Issued: February 24, 2012 D'Angelo & Hashem, LLC of Boston, Massachusetts (Stephen L. D'Angelo and Jay M. Wolman on the brief, and Mr. D'Angelo orally), and Cossingham Law Office, P.C., of Andover, Massachusetts (Thomas C. LaPorte on the brief), for the plaintiff. Michael A. Delaney, attorney general (Kevin H. O'Neill, assistant attorney general, and Mark P. Hodgdon, senior assistant attorney general, on the memorandum of law, and Mr. O'Neill orally), for defendant New Hampshire Department of Transportation. Devine, Millimet & Branch, P.A., of Manchester (Robert C. Dewhirst on the brief and orally), for defendant Town of Windham.

CONBOY, J. The plaintiff, Steven Ford, appeals orders of the Superior Court (Nadeau, J.) dismissing his negligence claims against the defendants, Town of Windham (Town) and the New Hampshire Department of Transportation (DOT). We affirm. For the purposes of this appeal, we accept the following allegations from the plaintiff's writ as true. At approximately 11:30 p.m. on December 12, 2008, the vehicle in which the plaintiff was a passenger was struck by another vehicle at the intersection of Routes 111 and 28 in Windham. Earlier, a severe ice storm had caused a power outage that had rendered the street and crossing lights at this intersection inoperable. Several hours before the accident occurred, both DOT and the Town had received notice that the intersection's lights were inoperable because of the ice storm. At approximately 6:42 a.m., Windham police notified DOT of a traffic hazard in the area. At approximately 1:08 p.m., a motor vehicle accident at the same intersection was reported to Windham police, who later reported that there were "[n]o working lights at this intersection due to ice storm power outages." The accident caused the plaintiff to suffer severe injuries, and he sued the Town and DOT for negligence. Both defendants moved to dismiss. In its motion, the Town averred that both Route 111 and Route 28 were state highways, which the Town neither owned nor had a duty to maintain. See RSA 231:93 (2009) ("Municipalities shall not be deemed to have any duty of care whatsoever with respect to the construction, maintenance or repair of class I, III, III-a or VI highways, or state maintained portions of class II highways."). The Town asserted that at the point where the two highways intersect in Windham, Route 111 is classified as a class II highway, and Route 28 is classified as a class I highway. See RSA 229:5 (2009) (defining classification of highways). Because the accident occurred on these state highways, the Town argued that it owed no duty to the plaintiff to warn of any hazardous condition that might have existed on them because of the December 2008 ice storm. See Trull v. Town of Conway, 140 N.H. 579, 582 (1995); see also RSA 231:93. In its motion, DOT contended, among other things, that it had discretionary function immunity to decide how best to allocate its resources in a "severe widespread winter weather emergency." See Appeal of N.H. Dep't of Transp., 159 N.H. 72, 74-75 (2009). The trial court granted both motions, and this appeal followed. In reviewing a motion to dismiss on appeal, we examine whether the allegations in the plaintiff's writ are reasonably susceptible of a construction that would permit recovery. J & M Lumber & Constr. Co. v. Smyjunas, 161 N.H. 714, 724 (2011). We assume the plaintiff's factual allegations to be true

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and construe all reasonable inferences to be drawn from them in the light most favorable to him. Id. We need not, however, assume the truth of statements that are merely conclusions of law. Id. We then engage in a threshold inquiry that tests the facts in the writ against the applicable law and will affirm the trial court's dismissal if the writ's allegations do not constitute a basis for legal relief. Id. Before addressing the parties' arguments, we note that the parties appear to assume that warning motorists about inoperable traffic lights is part of a governmental entity's duty to maintain a road. For the purposes of deciding this appeal only, we will accept that assumption. I. Negligence Claim Against Town A. Trull We first address the trial court's dismissal of the plaintiff's claim against the Town. The trial court decided that our decision in Trull required dismissal of the plaintiff's claim. In Trull, we ruled that a town could not be held liable in negligence for an accident occurring on Route 113, a class II highway, because the town had no control over the road, no duty to repair and maintain it, and, therefore, no duty to warn of icy conditions on it. Trull, 140 N.H. at 581, 582; see RSA 231:93. Trull is consistent with an earlier case, Hartman v. Town of Hooksett, 125 N.H. 34 (1984), in which we held that neither a municipality nor its police force had a duty to warn travelers about a defect in a class I state highway. In Hartman, we reasoned that "[i]n certain circumstances, a town may be liable for injuries occurring on roads under its control, but not for injuries on roads over which it exercises no control." Hartman, 125 N.H. at 37. Contrary to the plaintiff's assertions, Trull is directly on point. Like the plaintiff in this case, the Trull plaintiffs argued that the town had a duty to warn of a dangerous condition of which it had actual knowledge. Trull, 140 N.H. at 581. In Trull, before the accident occurred, a town police officer observed that a vehicle had slid on Route 113 because of black ice. Id. at 58081. Shortly after the officer left the area, one of the plaintiffs lost control of his vehicle, which slid across the center line and into another vehicle driven by the other plaintiff. Id. at 581. We disagreed with the Trull plaintiffs' argument, ruling that the fact that Route 113 is a class II highway was dispositive: "Under the common law of this State and the statutory scheme in existence at the time of the accident, we conclude that the town had no duty to warn of icy conditions on a road over which it had no control and no duty to repair and maintain." Id. at 582. Similarly here, the Town has averred, and the plaintiff has not disputed, that where they intersect in Windham, Routes 111 and 28 are class II and

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class I state highways, respectively, which the Town does not own and has no duty to maintain. Accordingly, because the Town had no duty to maintain Routes 111 and 28, it also had no duty to warn motorists that the lights at the intersection of these two state highways were inoperable. See id.; see also RSA 231:93. As we concluded in Trull: "Where there is no duty to correct a condition[,] there is no actionable duty to warn users of a highway that the condition has not been corrected." Trull, 140 N.H. at 582. And, "[w]hen there is no legal duty, there can be no breach of duty, and no finding of negligence." Id. (quotation omitted). The plaintiff's attempts to distinguish Trull from the instant case are unavailing. He asserts, for instance, that Trull is distinguishable because in Trull, nature directly caused the icy conditions, while in this case, the traffic lights were rendered inoperable because of a power outage caused by an ice storm. We do not find this distinction to be meaningful. Because the plaintiff views Trull as distinguishable from this case, he revives two arguments that we rejected in Trull. First, he argues that municipal police officers had a duty to "act," knowing that the lights at the intersection were inoperable and that the intersection was "heavily travelled." At oral argument, he explained further that because the Town's police officers travel and regulate traffic on Routes 111 and 28, they had a duty to warn motorists of the dangerous condition caused by the inoperable lights. The Trull plaintiffs made a similar argument, which we rejected. As we explained in Trull, "Merely because the town's police officers travel and regulate traffic upon [these] State highway[s] . . . does not create a duty to warn the public" about a dangerous condition on a state highway. Id. at 582. Relying upon Restatement (Second) of Torts

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