Opening the Road as a Ministerial Act: New Hampshire Clarifies Limits of Discretionary Function Immunity in Traffic Control Plan Implementation

Introduction

In Tamre McCrea & a. v. New Hampshire Department of Transportation (NHDOT), decided June 24, 2025, the Supreme Court of New Hampshire reversed a grant of summary judgment in favor of NHDOT. The case arises from a collision on Route 106 near the New Hampshire Motor Speedway (NHMS) during post-race traffic management under a temporary traffic control plan (TCP). The central legal issue on appeal was whether NHDOT’s conduct in opening the roadway—after it discovered cones were improperly placed and without confirming correction—was protected by discretionary function immunity under RSA 541-B:19, I(c), or whether it constituted a ministerial implementation of an established plan, potentially subjecting the agency to negligence liability.

The Court held that the decision to open the road under the TCP was a non-discretionary, ministerial act of implementation—not a protected planning or policy decision—and therefore claims alleging negligent implementation could proceed. The Court remanded for further proceedings, including possible consideration of the state’s “insufficiency” defense under RSA 230:78-:80, which the trial court had not reached.

• Parties: Plaintiffs Tamre and Brian McCrea; Defendant NHDOT.
• Court: Supreme Court of New Hampshire.
• Date: June 24, 2025 (resolved by order under Sup. Ct. R. 20(3)).
• Procedural posture: Reversal of summary judgment; remand.
• Key statutes: RSA 541-B:19, I(c) (discretionary function immunity); RSA 230:78-:80 (insufficiency law).

Summary of the Opinion

The Court reviewed the evidence in the light most favorable to the plaintiffs, as required on summary judgment (Farrelly v. City of Concord, 168 N.H. 430 (2015)). It accepted that NHDOT, pursuant to the TCP, performed a pre-opening “sweep” of Route 106, discovered that NHMS’s crew had placed cones ten feet east of the prescribed location (creating a fourth southbound lane not contemplated by the plan), notified NHMS, did not verify correction, and nonetheless opened the road to post-race traffic. Shortly thereafter, plaintiff Tamre McCrea, attempting a left turn, collided with a vehicle traveling in the erroneously created lane.

The Court reaffirmed that discretionary function immunity protects planning-level decisions—such as the formulation of the TCP itself—but does not immunize negligent implementation of an established plan. It concluded that:

• The plaintiffs’ claims do not attack NHDOT’s discretionary policy-making in designing the TCP; they challenge NHDOT’s implementation, specifically the decision to open the road after the known misplacement of cones and without verification.
• Opening the road under the TCP was a non-discretionary, ministerial act, rendering discretionary function immunity inapplicable to that implementation conduct.
• Because the trial court did not reach NHDOT’s alternative defense under the “insufficiency” statute (RSA 230:78-:80), the Supreme Court declined to address it and remanded for further proceedings.

Holding: Reversed and remanded. Discretionary function immunity does not bar claims alleging negligent implementation of the TCP, specifically NHDOT’s ministerial act of opening the road in the face of known cone misplacement and without verifying adherence to the plan.

Detailed Analysis

Precedents Cited and Their Influence

• Mahan v. N.H. Dep't of Admin. Services, 141 N.H. 747 (1997): The Court relied on Mahan for the foundational rationale of discretionary function immunity: it derives from the separation of powers and reflects judicial reluctance to scrutinize executive or legislative policy choices. Mahan underscores that immunity preserves government’s capacity to govern by shielding high-level policy judgments from tort liability.
• Bergeron v. City of Manchester, 140 N.H. 417 (1995): Bergeron provides the operative framework for differentiating between discretionary planning and ministerial implementation. While decisions like whether to install a traffic control device (e.g., a flashing beacon) are discretionary, negligent failure to follow an established plan is not immune. The Court used Bergeron’s distinction to classify NHDOT’s opening of the road as ministerial implementation.
• Gardner v. City of Concord, 137 N.H. 253 (1993): Gardner confirms that setting road maintenance standards is a policy-making function protected by immunity. This bolstered the Court’s agreement that the TCP’s design and policy choices were immune—while sharpening the contrast with later operational steps.
• DiFruscia v. N.H. Dept. of Pub. Works & Highways, 136 N.H. 202 (1992): DiFruscia is pivotal: although the decision whether and where to place guardrails is discretionary, failure by state workers to install a specific, identified guardrail can give rise to liability. The Court analogized this principle to NHDOT’s failure to implement the TCP as designed (i.e., to ensure cone placement conformity before opening the road).
• Farrelly v. City of Concord, 168 N.H. 430 (2015): Cited for the summary judgment standard—viewing facts and inferences in favor of the non-movant and granting judgment only when no genuine dispute of material fact exists and the movant is entitled to judgment as a matter of law. This standard drove the Court’s willingness to allow the negligence claim to proceed on the implementation theory.

Legal Reasoning

The Court’s reasoning operates in three steps:

1. Segregating protected planning from unprotected implementation. RSA 541-B:19, I(c) preserves immunity for discretionary executive or planning functions involving policy judgment. The TCP’s design and allocation of tasks among NHDOT, NHMS, and others fell squarely in that category. However, once the plan exists, the execution of its specific steps—particularly those that do not call for high-level policy balancing—is a ministerial matter.
2. Characterizing “opening the road” as ministerial implementation. The record showed NHDOT’s duties under the plan included conduct of a pre-opening “sweep,” notification of deficiencies to the responsible party, and determination of when to open the road. NHDOT conceded it opened the road despite knowledge of misplaced cones and without a second sweep to confirm correction. The Court treated the act of opening the road, in this context, as implementing a pre-established plan rather than selecting among competing policy options. It therefore identified “opening the road” as the non-discretionary, ministerial act at the heart of the plaintiffs’ claim.
3. Rejecting the “third-party attribution” theory. NHDOT argued that any TCP implementation errors were attributable to NHMS’s crew (which placed and failed to correct the cones). The Court disagreed. Even if NHMS bore immediate responsibility for cone placement, NHDOT’s separate ministerial responsibility—deciding to open the road under the plan—remained. The plaintiffs’ claims targeted NHDOT’s own implementation conduct, not the plan’s design or third-party execution alone.

Critical to the Court’s conclusion was its repeated caution not to conflate operational implementation with protected policy-making. While the plan’s allocation of cone placement to NHMS is a policy choice, NHDOT’s act of opening the road despite known noncompliance with the plan is an actionable implementation decision if negligent.

Impact and Prospective Significance

The decision has meaningful operational and litigation consequences:

• Clearer boundary between planning immunity and implementation liability. Agencies cannot extend discretionary function immunity to shield on-the-ground implementation choices simply because those choices occur within a broader policy framework. Where a plan prescribes specific steps, failure to follow or verify those steps may be actionable.
• Event traffic management practices. For large events requiring TCPs (e.g., racetracks, stadiums, fairs), state and municipal agencies should expect heightened scrutiny of pre-opening verification procedures (sweeps, checklists, sign-offs). Assigning duties to event operators does not absolve the agency of independent implementation responsibilities it retains (such as opening or closing roads).
• Third-party coordination is not a liability shield. While agencies may allocate tasks to private partners, they should implement protocols to ensure corrective action actually occurs before proceeding with ministerial steps that expose the traveling public to risk.
• Summary judgment posture. Plaintiffs can survive summary judgment on implementation theories when the record, viewed favorably to them, shows an agency knowingly proceeded despite noncompliance with established plan requirements. This encourages fact development on causation, foreseeability, and standard-of-care issues at trial.
• Interplay with the “insufficiency” statute (RSA 230:78-:80). On remand, the trial court may evaluate whether the plaintiffs’ claims are barred or limited by the state’s highway “insufficiency” regime, which imposes specific conditions and defenses for claims premised on highway defects or insufficiencies. The decision preserves that defense for further proceedings, without endorsing or rejecting its applicability here.
• Risk management for agencies. Agencies should consider formalizing “second sweep” or verification requirements, keeping contemporaneous records, and defining “no-open” criteria when known deviations from a TCP are not promptly corrected.

Complex Concepts Simplified

• Sovereign immunity: The general rule that the State (and its agencies) cannot be sued without its consent. New Hampshire has partially waived this immunity through statutes like RSA chapter 541-B, which also contains exceptions.
• Discretionary function immunity (RSA 541-B:19, I(c)): Even where immunity is waived, the State remains immune for claims based on high-level policy-making or planning decisions that require significant judgment (e.g., whether to install a specific type of traffic control device or how to design a traffic plan).
• Ministerial acts: Operational, on-the-ground actions taken to implement established policies or plans. If these acts are performed negligently (e.g., failing to follow the plan’s steps), the State can be subject to liability.
• TCP (Traffic Control Plan): A formal, documented plan directing how traffic will be managed for events or construction—who does what, where cones/signs go, when lanes change, and when roads open/close.
• “Sweep” and “Second sweep”: Operational checks to ensure the roadway setup matches the TCP before opening to traffic. A “second sweep” refers to re-verifying corrections after a deficiency is identified.
• Summary judgment: A procedure to resolve a case without trial when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Courts must view evidence in the light most favorable to the non-moving party.
• Insufficiency law (RSA 230:78-:80): A statute governing claims based on insufficiency or defects in highways/bridges, which can impose notice and timing requirements and provide defenses. The Supreme Court did not decide its applicability here.

Application to the Facts

The dispositive factual points for the immunity analysis were uncontested: NHDOT’s sweep identified a material deviation from the TCP (cones 10 feet off the specified line, creating a fourth lane); NHDOT notified NHMS; no correction was verified; and NHDOT opened the road. The plaintiffs’ theory is that opening the road under these conditions deviated from the plan’s safe implementation and proximately caused the collision.

The trial court initially reasoned that because the plan assigned cone placement to NHMS, NHDOT’s failure to correct or report beyond its prescribed role remained protected. The Supreme Court refocused the inquiry on NHDOT’s own implementation act—opening the road—and treated that act as non-discretionary within the meaning of Bergeron and DiFruscia, freeing the plaintiffs’ claim from the shield of discretionary function immunity.

Practical Guidance

• For agencies: - Treat “open/close to traffic” decisions under a TCP as implementation steps demanding documented verification of compliance with the plan.
  - Build in mandatory second sweeps when deviations are identified and make road opening contingent on confirmation.
  - Clarify lines of authority and stop-work criteria in TCPs; do not rely solely on third-party assurances for safety-critical conditions.
• For event operators and contractors: - Expect oversight and verification by public agencies; maintain real-time communication channels for rapid correction and confirmation.
  - Maintain records of cone/sign placement and any corrective actions.
• For plaintiffs’ counsel: - Distinguish design/policy claims (likely immune) from implementation failures (potentially actionable).
  - Develop evidence on what the plan required, what verification steps were taken (or omitted), and the agency’s knowledge at the time of opening/closing.
• For defense counsel: - Preserve arguments under both discretionary function immunity and the insufficiency statute; the latter may still limit or bar claims on remand depending on statutory conditions.
  - Emphasize causation and comparative negligence, where appropriate, beyond immunity defenses.

Conclusion

The New Hampshire Supreme Court’s decision clarifies a critical boundary in sovereign immunity doctrine: while the creation of a traffic control plan is a protected discretionary function, the on-the-ground act of opening a roadway under that plan can be a ministerial implementation step subject to negligence claims. By identifying “opening the road” as the non-discretionary act at issue, the Court ensures that agencies remain accountable for operational decisions that affect immediate public safety, even when third parties are responsible for elements of execution.

The ruling does not resolve all defenses; notably, it preserves NHDOT’s arguments under the highway “insufficiency” statute for the trial court to consider on remand. But its principal contribution is doctrinal: it reinforces that immunity does not extend to negligent failure to follow an established plan—especially where the agency proceeds despite known deviations. This distinction is likely to shape event-related traffic operations, verification practices, and litigation strategy in New Hampshire going forward.

Case Snapshot

• Case: Tamre McCrea & a. v. New Hampshire Department of Transportation
• Court: Supreme Court of New Hampshire
• Date: June 24, 2025
• Disposition: Reversed and remanded
• Key Holding: Opening the roadway under an established TCP is a ministerial act of implementation not protected by discretionary function immunity; claims alleging negligent implementation may proceed.
• Unresolved Issue on Remand: Applicability of the “insufficiency” statute (RSA 230:78-:80).
• Panel: BASSETT, DONOVAN, and COUNTWAY, JJ., and ABRAMSON, J. (specially assigned) concurred.