Municipal Liability and Immunity in New Hampshire Historical Perspective and Evolution: Common Law and General Statutes
I. LIMITED LIABILITY VIA CASE LAW
a. Common Law Municipal Immunity
Municipal immunity may have originated in the English common law in the case of Russell v. Men of Devon, 2 Term Rep. 667, 100 Eng. Rep. 359 (1789). At the time that case was decided, the idea of a municipal corporation was in its infancy, and lawsuits were brought against the entire population of a community. Because there were no municipal funds (or insurance) from which to pay a judgment, individual citizens were required to pay out of their own pockets. Thus, in Russell, the court held that it was better that an injured person be without remedy than to expose the public at large to liability.
The principle remained in the common law through judicial decision for most of the next 200 years. Courts continued to conclude that since a municipality derived no profit from the exercise of governmental functions performed for the public benefit, moneys raised by taxation for public use should not be diverted to payment of tort claims.
b. Merrill v. Manchester: Abolition of Common Law Immunity with Exceptions
In New Hampshire, the common law changed when the Supreme Court issued its decision in Merrill v. Manchester, 114 N.H. 722 (1974). The Court held that the doctrine of municipal immunity offended “the basic principles of equality of burdens and of elementary justice” and was “foreign to the spirit of our constitutional guarantee that every subject is entitled to a legal remedy for injuries he may receive in his person or property.” For these policy reasons, the Court overturned established precedent and abolished common law municipal immunity effective July 1, 1975, with two exceptions. Municipalities would remain immune from liability for acts and omissions constituting:
- the exercise of a legislative or judicial function; and
- the exercise of an executive or planning function involving the making of a basic policy decision characterized by the exercise of a high degree of official judgment or discretion.
As a result of the Court’s decision, cities and towns became responsible for most injuries negligently caused by their agents and employees in the course of their employment or official duties.
c. Immunity for Legislative and Judicial Functions
Merrill v. Manchester cited Hurley v. Hudson, 112 N.H. 365 (1972) in preserving immunity for legislative and judicial functions. Hurley held that a town is not liable for property damage caused by the planning board’s negligent approval of a subdivision with a defective drainage plan. Since then, the Court has frequently cited the rule of Hurley that “judicial, quasi-judicial, legislative, or quasi-legislative acts of a town ordinarily do not subject it to claims for damages.” Torromeo v. Fremont, 148 N.H. 640, 644 (2002). The exceptions are where officials have acted in bad faith, Win-Tasch Corp. v. Merrimack, 120 N.H. 6 (1980), or where an ordinance or decision constitutes an unconstitutional taking of property, Torromeo, 148 N.H. at 644.
d. Immunity for Discretionary Functions
Municipalities and municipal officials continue to enjoy immunity for the “exercise of an executive or planning function involving the making of a basic policy decision characterized by the exercise of a high degree of official judgment or discretion.” (This common law protection is also afforded by statute by RSA 31:104.) The rationale behind this partial immunity is the constitutional principle of separation of powers. The courts give great deference to the decisions entrusted by law to the other separate, but co-equal branches of government. However, there is no immunity for negligent implementation of a policy or plan.
These concepts are illustrated in a couple of cases decided by the New Hampshire Supreme Court, as described below.
Robinson v. Hillsborough County, New Hampshire Supreme Court, No. 2014-0648, (April 28, 2015).
The plaintiff alleged that he reported a frayed cable on the equipment to a corrections officer, who determined that the equipment was usable. The next day, the cable snapped, injuring the plaintiff. A governmental entity is immune from liability for injuries arising from planning or discretionary functions. Purely ministerial functions are not protected. For immunity to apply, the conduct that caused the injury must involve a “high degree of discretion and judgment . . . in weighing alternatives and making choices with respect to public policy and planning.” However, a governmental entity may be subject to liability “when its employees negligently follow or fail to follow an established plan or standards
Tarbell Adm’r, Inc. v. Concord, 157 N.H. 678 (2008)
A property owner sued the city for damage to its building caused by water overflowing an emergency spillway from a pond maintained for the city water supply. The city had studied the risks and benefits of maintaining the water at the level that rose and overflowed in a heavy rainstorm. The Court held that there was discretionary immunity for the decision to maintain the water level but no immunity for alleged failure to clear brush and otherwise maintain the outlet.
e. ‘Official Immunity’ for Police Officers
In the case of Everitt v. General Electric Co., 156 N.H. 202 (2007), the Supreme Court afforded “official immunity” to police officers to protect them from personal liability for the exercise of judgment and discretion in the performance of their duties. This extends the doctrine of “municipal immunity” to protect operational decisions that do not qualify as discretionary executive or policy decisions but, nevertheless, are deemed worthy of immunity protection. The question of whether municipalities themselves are entitled to immunity for police officers’ decisions of this type remains open, as does the question of what other categories of officials and employees may be entitled to this sort of immunity.
There are limits to “official immunity.” In Huckins v. McSweeney, 166 N.H. 176 (2014), the New Hampshire Supreme Court rejected an attempt to declare portions of the municipal liability statute, RSA Chapter 507-B, unconstitutional. The decision reaffirmed that municipal employees, and the municipal employer, cannot be held liable for intentionally caused injuries so long as the employee was acting under a reasonable belief that the offending conduct was authorized by law. The Court reaffirmed its prior decisions that there is no violation of the New Hampshire Constitution when the State immunizes itself and its municipalities from liability for intentional torts by governmental employees acting under a reasonable belief that the offending conduct was authorized by law. See also Hansen v. Town of Ossipee and Police Officer Shane Emerson, 2014 D.N.H. 072 (April 11, 2014).
In 2015, the New Hampshire Supreme Court held that a police officer must engage in reckless or wanton conduct in order to lose immunity. Farrelly v. City of Concord, 168 N.H. 430 (2015).
The Court had to reconcile the standards for immunity articulated in both Huckins (“immunity applies to intentional torts committed by government officials or employees who act under a reasonable belief in the lawfulness of their conduct”) and in Everitt (“municipal police officers are immune from personal liability for decisions, acts or omissions that are . . . not made in a wanton or reckless manner”). The Court determined that the “reasonable belief” an officer is required to have for immunity to apply must both be a subjective belief that the conduct was lawful and must be objectively reasonable. However, the objective reasonableness is viewed “from the perspective of the actor in question,” asking whether the unlawfulness of the conduct “would have been apparent to an objectively reasonable officer standing in the defendant’s shoes.” Importantly, the Court went on to say that, in order to determine that an officer had not acted “reasonably,” the plaintiff must prove more than negligence—it must be established that the officer acted recklessly or wantonly as to the lawfulness of their conduct.
f. Limited Scope of Legal Duty
“Cities and towns have not been, and are not now, guarantors of public peace, safety and welfare.” Doucette v. Bristol, 138 N.H. 205 (1993). Some municipal governmental activities are deemed not to create a duty that people are entitled to rely on to protect them from injury. Here are some examples:
Dichiara v. Sanborn Regional School District, 165 NH 694 (2013)Stephen Dichiara was injured while trying out for the Sanborn Regional High School basketball team and he brought a lawsuit against the basketball coach and the Sanborn Regional School District, alleging negligence. The trial court granted the defendants’ Motion for Summary Judgment on the grounds that defendant was entitled to governmental immunity under RSA 507-B. The Supreme Court affirmed. RSA 507-B limits governmental liability to claims of negligence “arising out of the ownership, occupation, maintenance or operation of all motor vehicles, and all premises.” Dichiara argued that the statute should be read to allow a plaintiff to recover against a governmental entity for all fault-based claims, regardless of whether the conduct was related to the ownership, occupation, maintenance, or operation motor vehicles or premises. The Court disagreed and held that upon the plain reading of RSA 507-B, the only exception to fault-based claims is triggered when there is a nexus between the claim and the governmental unit’s ownership, occupation, maintenance, or operation of a motor vehicle or premises.
Town of Londonderry v. Mesiti Development, 168 N.H. 377 (2012)
Several developers alleged that the Town had either breached a fiduciary obligation to the fee payors or was negligent per se in the administration of collected impact fees. The Court ruled that the impact fee statute, RSA 674:21, V, does not designate the Town as an escrow agent to hold collected impact fees for the benefit of fee payors and therefore does not impose fiduciary duties upon the Town. Concerning the argument by the fee payors that the Town’s maladministration of the collected impact fees amounted to negligence per se allowing the fee payors to recover damages, the Court found no articulated common law duty of care. The Court reiterated that municipalities do not assume a duty of care merely by virtue of having enacted regulations, citing to Stillwater Condo. Assoc. v. Town of Salem, 140 N.H. 505 (1995) (above). Similarly, the Court found that the fee payors failed to articulate any form of a common law duty of care owed by the Town such that the alleged mismanagement of the collected impact fees entitled them to recover money damages.
Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at email@example.com.