Rather, the language was intended to make it clear that a highway discontinued subject to gates and bars is not a publicly approved street for purposes of zoning. Accord Metzger v. Brentwood, 115 N.H. 287, 343 A.2d 24 (1975) (road discontinued subject to gates and bars is not a "right of way" as that term is used in town's zoning ordinance); see also Metzger v. Town of Brentwood, 117 N.H. 497, 374 A.2d 954 (1977) (same); Bancroft v. Town of Canterbury, 118 N.H. 453, 457, 388 A.2d 199, 203 (1978) (amendment intended to make it possible for planning boards to have jurisdiction over discontinued highways subject to gates and bars). We long have held that roads subject to gates and bars are public highways.

RSA 412:3 (Supp. 1979); Bancroft v. Town of Canterbury, 118 N.H. 453, 456, 388 A.2d 199, 202 (1978). As long as an act was performed by a municipal employee without "malice," the employee shall be indemnified by the governmental unit in civil rights suits.

In resolving this issue, the plaintiff's allegations of fact and the reasonable inferences therefrom are assumed to be true and are construed most favorably to the plaintiff. Green v. Shaw, 114 N.H. 289, 292, 319 A.2d 284, 285 (1974); see Bancroft v. Town of Canterbury, 118 N.H. 453, 388 A.2d 199 (1978). If the facts as alleged would constitute a basis for legal relief, the motion to dismiss should be denied.