In response to the Court's invalidation, in City of Dover, of RSA 507-B:2, I, "the 1991 session of the legislature amended the laws regarding immunity for public highways to provide that municipalities would only be liable for highway insufficiencies about which they had received written or actual notice and failed to take appropriate action." 14 Peter J. Loughlin, New Hampshire Practice § 1029 (1990 Supp. 1991) (citing 1991 N.H. Laws, ch. 385); see also Opinion of the Justices, 134 N.H. 266, 592 A.2d 180 (1991) (issuing an advisory opinion that the proposed highway liability legislation was constitutional with a few exceptions not relevant here). "The law [as amended in 1991] also provided a specific exemption for highway insufficiencies caused by inclement weather as long as the municipality is implementing a winter or inclement weather policy in good faith."

In apparent response to our decision in City of Dover, the senate drafted legislation limiting municipal liability and asked for our opinion on the constitutionality of the proposed legislation. See Opinion of the Justices, 134 N.H. 266, 592 A.2d 180 (1991). We responded that the proposed statute limiting municipal liability to instances where the municipality had received actual notice of an insufficiency or defect in roadways or sidewalks, but failed to take corrective action, facially survived constitutional scrutiny.

In City of Dover v. Imperial Casualty & Indemnity Co., 133 N.H. 109, 120, 575 A.2d 1280 (1990), we held that the exception in RSA 507-B:2 for public sidewalks, streets, and highways violated Part I, Article 14 of the State Constitution. Shortly thereafter, the legislature repealed and reenacted RSA 507-B:2, as well as RSA 231:90 through :92, as part of Senate Bill 151-FN. See Laws 1991, ch. 385; see also Opinion of the Justices, 134 N.H. 266, 271, 592 A.2d 180 (1991) (considering Senate Bill 151-FN prior to its enactment). The purpose of Senate Bill 151-FN was "to provide municipalities with the greatest possible protection from highway and sidewalk liability, consistent with the constitution."

Since we have determined that maintaining a cap for decedents without dependent relatives, while eliminating any cap for decedents with dependent relatives, can be justified under middle tier scrutiny based on the compensatory purpose of the statute, it necessarily follows that this distinction would satisfy the equal protection clause under the facts of this case. See Opinion of the Justices, 134 N.H. 266, 274, 592 A.2d 180, 184-85 (1991). Accordingly, we conclude that the distinction within RSA 556:13 does not violate the plaintiff's right to equal protection under the law.

The defendant first contends that in order for the plaintiffs to maintain a suit against the city, they are required to plead that the city had actual notice of any alleged deficiency relating to the highway embankment. In support thereof, the defendant relies on this court's statement in Opinion of the Justices, 134 N.H. 266, 276, 592 A.2d 180, 186 (1991), that "City of Dover [v. Imperial Casualty and Indemnity Co., 133 N.H. 109, 575 A.2d 1280 (1990)] plainly limits a municipality's liability [for negligence] to instances of actual, not constructive, knowledge." As the following discussion explains, however, the trial court was correct in finding that City of Dover "did not adopt, as common law requirements, the conditions of actual notice and opportunity to correct."

We note that our response "is necessarily qualified." Opinion of the Justices, 134 N.H. 266, 279, 592 A.2d 180, 188 (1991). "Because it is impossible to anticipate the myriad fact patterns which may arise and test the limits of [SB 61], we cannot guarantee that we have been able to address every possible issue that may be raised under article[s] [15 and 20]."

"The setting of road maintenance standards [is] a discretionary, policy function for which the municipality shall not be held liable" absent bad faith or malice. Opinion of the Justices, 134 N.H. 266, 278-79, 592 A.2d 180, 187 (1991) (quotation omitted). If, however, city workers negligently followed or failed to follow an established plan, standards or orders when they constructed and subsequently modified the sidewalk, or merely carried out these tasks absent a higher-level plan, design, or standards, the city could be held liable in tort for resultant injuries.

"[I]t is impossible to anticipate the myriad fact patterns which may arise and test the limits of [the bill]." Opinion of the Justices, 134 N.H. 266, 279, 592 A.2d 180, 188 (1991). DAVID A. BROCK WILLIAM F. BATCHELDER WILLIAM R. JOHNSON W. STEPHEN THAYER, III SHERMAN D. HORTON, JR.