Is a person in New Hampshire required to do anything to warn other motorists if they strike a large animal in the road?

It depends on the facts. In New Hampshire, whether a person’s conduct created a sufficiently foreseeable risk of harm to others to charge that person with a duty to avoid such conduct is a question of law. Generally, “the concept of duty arises out of the relationship between the parties and protection against reasonably foreseeable harm.”  Sintros v. Hamon, 148 N.H. 478, 480 (2002), citing Simpson v. Calivas, 139 N.H. 1, 4 (1994).  As explained in Corso v. Merrill, 119 N.H. 647, 651 (1979):

Duty and foreseeability are inextricably bound together. The risk reasonably to be perceived defines the duty to be obeyed. A person may be liable only to those who are foreseeably endangered by his conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous. His duty is measured by the scope of the risk which negligent conduct foreseeably entails.

In certain cases involving collisions with large animals it can be argued that a “duty arises because the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.”  Manchenton v. Auto Leasing Corp., 135 N.H. 298, 214 (1992).  The events that cause a person’s injuries would need to involve a “reasonably foreseeable danger to be guarded against under these circumstances.”  Id.; see also Williams v. O’Brien, 140 N.H. 595 (1995) (noting that a special relationship and therefore a duty to exercise reasonable care between parties exists when driving in unusual circumstances or when encountering unusual obstacles or obstructions in the roadway).

New Hampshire courts consistently apply the general duty of reasonable care to drivers under various scenarios.  Goodwin v. James, 134 N.H. 579, 585 (1991) (duty to avoid injury when assisting driver of a disabled vehicle); Johnston v. Lynch, 133 N.H. 79, 86 (1990) (driver and bicyclist owe reciprocal duties to exercise due care under the circumstances); Bellacome v. Bailey, 121 N.H. 23, 25 (1981) (driver and pedestrian owe reciprocal duties to exercise due care under the circumstances); Hampton v. Davis, 114 N.H. 655, 659 (1974) (driver has duty to observe and to consider factors which would indicate the need for caution in the operation of his motor vehicle); Theriault v. Vanasse, 111 N.H. 155, 156-57 (1971) (driver must anticipate the probable use of the highway by other travelers and use reasonable care to avoid causing injury to others).

The New Hampshire Supreme Court has not previously considered the duty required of a motorist who hits a large animal on the roadway.  It is appropriate, therefore, to “look to other jurisdictions for guidance.”  Sintros, 148 N.H. at 480, citing Simpson, 139 N.H. at 5.  Courts in other jurisdictions have found that a motorist who innocently strikes a large animal on the roadway owes a duty of care to warn or to eliminate the hazard thus created.  Parnell v. Peak Oilfield Serv. Co., 174 P.3d 757, 761 (Ala. 2007) (moose carcass in roadway); Shaw v. Stewart’s Transfer, 2009 U.S. Dist. LEXIS 99115 (D. Me. 2009) (same); Hardy v. Brooks, 118 S.E.2d 492 (Ga. Ct. App. 1961) (cow carcass in roadway); see also Sandberg Trucking, Inc. v. Johnson, 76 N.E.3d 178, 181, 184 (Ind. Ct. App. 2017) (defendant truck driver owed duty to warn motorists of hazardous deer remains left on Interstate 65 as part of the general duty to use ordinary care to avoid creating unreasonable risks of harm to other motorists ); Kirk v. United Gas Public Service Company, 165 So.735 (La. App. 1936) (reversed on other grounds, 170 So. 1) (motorist who struck calf on public highway had duty to remove carcass from roadway or warn other motorists of its presence).

Foreseeability in defining the boundaries of a duty is examined at the time the act or omission occurred.  In Parnell, a motorist was injured after he hit a moose carcass on an Alaskan highway.  The two motorists who hit and killed the moose fifteen to twenty minutes before left the carcass unattended.  Parnell, 174 P.3d at 759-760.  After hitting the moose, one defendant “pulled over briefly to see if his pickup had any road flares or a tow strap but found neither in the truck.”  Id. at 759.  The motorist “did not have a cell phone and did not attempt to find a nearby phone to call the police. He decided to drive on to the [local grocery store] and to return to the accident scene after telling his co-workers that they would have to make their own arrangements for getting to work.”  The defendant motorist “later acknowledged that he ‘made a bad choice’ by continuing on to [the grocery store] and that he thought that ‘the right thing to do… after striking the moose’ would have been to ‘go back there and put [his] four-ways on and put some flares out, if [he] had some.’” Id.

The trial court held that the motorist created a hazardous condition on the highway and owed a duty of due care to remove the hazard or to warn other motorists of the danger.  Id. at 761.  The Alaskan Supreme Court affirmed, holding that the rule comported with section 321 of the Restatement (Second) of Torts.  Id.  Section 321 states: “If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.”  Restatement (Second) of Torts § 321 (1965).

The Parnell Court explained that the proper issue to be decided was not which driver caused the moose’s carcass to be in the road, “but rather who had the duty to warn the public of the hazard thus created.”  Id. at 762.  In so doing, the court looked at the purpose of § 321: the “purpose of the duty established in section 321 is to encourage immediate efforts to avoid future harm.”  Id. at 763.  Section 321 describes two key ingredients for creation of the duty:

The first is affirmative action on the part of the actor: the duty can attach only when the “actor does an act.”  The second is the actor’s awareness (objectively measured) of a substantial potential for resulting danger: the duty can only attach when the actor “realizes or should realize” that “an unreasonable risk of causing physical harm to another” has resulted from the act. Id.

The court concluded that the motorist who struck the moose realized or should have realized that an unreasonable risk of causing physical harm resulted from hitting the moose and leaving its carcass unattended on the road.  Accordingly, that motorist had a duty to warn other motorists of that danger he innocently created.  The remaining factual questions of breach of duty and causation were for the jury to decide.  Id. at 766, n. 20.

Similarly, in Shaw, the plaintiff’s estate sued a tractor trailer driver and his employer for leaving a dead moose carcass on I-95 after the truck hit it.  The plaintiff’s driver hit the moose carcass that lay in the travel lane, lost control of the vehicle and smashed into the tractor trailer killing the plaintiff.  Shaw v. Stewart’s Transfer, 2010 U.S. Dist. LEXIS 74246 (D. Me. 2010), p. 1-2.  After hitting the moose, the tractor trailer driver pulled over to the side of the road.  Id. at 11.  There was no evidence that the truck driver took any action to warn other motorists of the hazardous moose carcass he had innocently caused to exist in the road.

The defendants sought summary judgment arguing that there is no legal duty for a motorist who strikes wildlife to remove that animal’s carcass from the roadway or to place flares or otherwise to warn others about the animal.  Id. at 4-5.  The district court disagreed: once the tractor trailer driver “struck the moose, he owed a duty to minimize the dangers he created.”  Id. at 7.  The court considered Maine law that states that “absent a special relationship, the law imposes no duty to act affirmatively to protect someone from danger unless the dangerous situation was created by the defendant.”  Id. (citations omitted).

In addition to the duty imposed on a driver who innocently creates a hazard by striking moose in the roadway, the Shaw Court also concluded that summary judgment could not be granted because the jury must determine whether the tractor trailer driver exercised due care in striking the moose in the first place.  If the driver was negligent in striking the moose, then the law as reflected in Restatement (Second) of Torts § 322, illus. c (1965) applies, which states that if the “original conduct is tortious,…the connection between the original wrong-doing and further harm is usually such as to make the actor’s conduct in law the cause of such harm.”  Id. at 8.

Finally, the defendants in Shaw argued that it was wrong for the plaintiff to “impose an obligation on motorists to place their lives at risk by requiring persons involved in a collision with wild animals to remove the animals from the roadway.”  Id. at 8, n.4.  In denying summary judgment, the Court stated it “is doing no such thing.  The Defendants are conflating the existence of a duty with its breach.  The Court concludes only that having created the hazard, the Defendants were obligated to minimize it.”  Id.  Whether the tractor trailer driver’s “post-accident actions met that duty is a factual question” for the jury.  Id.

Like the moose carcasses in Parnell and Shaw, the defendant in Hardy hit a large black colored cow at night and left its 900 pound carcass in the road.  Hardy, 118 S.E.2d at 496.  Five minutes passed between the time the defendant motorist hit the cow and the plaintiff hit the cow’s carcass.  Id. at 496.  There is no evidence that the defendant had done anything to warn other motorists about the hazardous cow carcass in the roadway before the plaintiff hit it.  The trial court held that the defendant motorist owed a duty of care to other motorists after he struck the cow.  The appellate court affirmed.  Id.  The Hardy plaintiff did not allege that the defendant motorist was negligent in striking and killing the cow.  Id. at 495.  Instead, the plaintiff complained solely that the defendant motorist failed to act after hitting the cow, by failing to remove the cow from the highway or to warn of its presence.  Id.

The Hardy Court reasoned that “if one by his own act, although without negligence on his part, creates a dangerous situation in or along a public highway and it reasonably appears that other users of the highway in the exercise of ordinary care for their own safety may be injured by the dangerous situation so created, the one creating the same is under a duty to eliminate the danger or give warning to others of its presence.”  Id.  “It is a question for the jury as to what a reasonably prudent man in the exercise of ordinary diligence could and should have done under the attendant facts and circumstances of this case.”  Id.

These same principles apply to situations other than large animal carcass cases, finding duties to warn or ameliorate roadway hazards innocently or negligently created by drivers.  E.g., Zylka v. Leikvoll, 144 N.W.2d 358 (Minn. 1966) (tow truck operator owed duty to warn of disabled vehicles in roadway even though he did not negligently create the hazard); Montgomery v. National Convoy & Trucking Co., 195 S.E.247 (S.C. 1938) (truck drivers have duty to warn motorists after trucks stall and block highway); Simonsen v. Thorin, 234 N.W. 628, 629 (Neb. 1931) (driver has duty to use ordinary care to warn motorists of obstruction she innocently or involuntarily caused to be placed in the highway).

The facts and circumstances of particular collision will determine whether you can hold the other driver responsible for your injuries. Call Nicholson Law Firm today at 603-856-8441 for a free case evaluation if you have been involved in a car accident.

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