Scott McCarthy v. Manchester Police Department

Municipalities, like the State, are Immune from Defamation Claim
New Hampshire Supreme Court No. 2014-0773
Tuesday, September 22, 2015

In this case, the plaintiff brought a claim for defamation against the Manchester Police Department and a Manchester police sergeant. The plaintiff’s claim in this case stemmed from a post the sergeant made on the police blog about the plaintiff’s arrest. The trial court dismissed the plaintiff’s claim on the basis of governmental immunity in a somewhat complex opinion that is not discussed in full in this summary. On appeal, the New Hampshire Supreme Court affirmed the trial court’s dismissal.

The plaintiff raised two arguments on appeal. First, the plaintiff argued that defamation was a claim for which municipal immunity was waived, allowing an injured person to bring a claim against a municipality. The general rule under RSA 507-B:5 is that a municipality is immune from a liability for bodily injury, personal injury, or property damage, but there are exceptions to this rule. One such exception is RSA 507-B:2, which states that “[a] governmental unit may be held liable for damages in an action to recover for bodily injury, personal injury, or property damage caused by its fault or by fault attributable to it, arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises.” The court reasoned that even if the plaintiff was correct that defamation was a type of claim that could be brought under RSA 507-B:2, the plaintiff still could not recover because he did not establish the nexus between the defendants’ ownership, occupation, maintenance or operation of motor vehicles or premises.

The plaintiff’s second argument was a constitutional challenge. To understand his argument, we must look at sovereign immunity in New Hampshire—that is, immunity for the State. RSA 541-B:19, I(b) immunizes the State from liability, but, like the municipal immunity statute, there are exceptions. The plaintiff argued that one such exception—RSA 541-B:19, I(d)—immunizes the State from liability intentional defamation claims, but allows for negligent or reckless defamation claims to be brought against the State. On the other hand, the plaintiff understood the trial court’s order to have concluded that intentional torts can never be brought against a municipality. Therefore, based on the plaintiff’s interpretation of the sovereign immunity statute, and the trial court’s order regarding municipal immunity, the plaintiff saw an injustice: a claim for negligent or reckless defamation could be brought against the State but could not be brought against a municipality. Therefore, he argued, the statutes created disparate treatment depending on the governmental identity of the defendant, creating a constitutional violation.

First, the court clarified that, despite some language in the trial court’s order suggesting that municipalities were protected from lawsuits for intentional torts, not all intentional torts are barred. Second, the court determined that the plaintiff’s argument was based on a misunderstanding on the law of defamation. Despite the plaintiff’s discussion of “intentional defamation” versus “reckless/negligent defamation,” there is only one type of defamation. Claims are not categorized or treated differently depending on whether the oral communication that allegedly caused injury was done intentionally or negligently. Therefore, defamation claims are treated the same whether brought against a municipality or the State, so the plaintiff’s constitutional claim for disparate treatment failed.

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