Bar News - April 16, 2014
Opinion: DON’T PANIC: Dichiara Is Not A Game-Changer For Municipal Immunity
By: Samantha D. Elliott and Erik G. Moskowitz
This article is in response to an article in the Spring 2014 issue of the Bar Journal: Dichiara Expands Immunity to Municipalities by Jason Major.
The NH Supreme Court’s decision in Dichiara v. Sanborn Regional School District decided in November 2013 did not have the far-reaching effect claimed in a recent New Hampshire Bar Journal article; nor does it have the constitutional or equitable consequences the article suggests. Dichiara is not a game-changer. It did not contain any surprises, it did not expand the statutory immunity that has been on the books since 1975, and it mirrored the New Hampshire Supreme Court’s earlier analysis of the statute. Immunity under RSA 507-B is still limited to certain types of claims, is still trumped by other statutes providing causes of action, and still offers protection to municipal employees.
In the Dichiara case, a high school basketball player sued the Sanborn Regional School District for negligence. The player suffered a broken arm during a basketball practice, and claimed that the basketball drill in which he was participating when injured was outdated and dangerous. The school district won summary judgment on the basis that RSA 507-B:2 limits the types of negligence actions that can be maintained against certain governmental entities, including school districts. RSA 507-B:2, titled “Liability for Negligence,” provides in part that governmental units may be held liable in actions to recover for bodily injury, personal injury, or property damage “arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises.”
Dichiara did not argue on appeal that RSA 507-B was unconstitutional. He argued only that RSA 507-B:2, the section of the statute that permits certain types of negligence claims, should be read to permit all negligence claims. Essentially, the plaintiff maintained that, under RSA 507-B:2, a governmental unit is liable for bodily injuries “caused by its fault or by fault attributable to it,” regardless of any connection to a motor vehicle or premises.
The Supreme Court found that the sentence structure as interpreted by the school district, rather than as by Dichiara, was consistent with a plain-language interpretation and did not lead to an absurd result. The Supreme Court held that Dichiara’s negligence claims were barred by the statute because they did not have a sufficient nexus with any motor vehicle or premises.
The Dichiara decision does not “broadly expand” municipal immunity. Instead, it is consistent with the Court’s interpretation of 507-B:2 in Chatman v. Strafford County, 163 N.H. 320 (2012) and Farm Family Casualty Ins. Co. v. Town of Rollinsford, 155 N.H. 669 (2007). In both of those prior cases, the Court analyzed whether the plaintiffs’ negligence claims had arisen out of the ownership, occupation, maintenance or operation of a motor vehicle or premises. That analysis determined whether immunity applied. There was no outcry after those opinions were issued regarding the interpretation or the constitutionality of the statutory immunity.
Nor is there any valid New Hampshire precedent calling into question the Supreme Court’s statutory analysis in Dichiara. The Court did not “ignore” the federal case of Farrelly v. City of Concord, Civil No. 10-cv-583-LM (D.N.H. Oct. 2. 2012). Interestingly, the portion of the Farrelly opinion quoted in the Bar Journal article was vacated by the federal judge who originally issued it. In fact, the judge vacated her order on the very ground that her statutory interpretation was novel and therefore better left to the state courts to decide in light of her decision to dismiss all pendant federal claims.
Contrary to the Bar Journal article, the Dichiara decision also properly analyzed the statutory language in light of its historical context. Merrill v. City of Manchester abolished the judicially-created municipal immunity for reasons of policy -- not on constitutional grounds -- and invited the legislature to take action, even delaying the effective date of the decision for roughly six months. The legislature responded by enacting RSA 507-B. This historic perspective, coupled with the language of RSA 507-B:5 (which provides that “[n]o governmental unit shall be held liable in any action to recover for bodily injury, personal injury or property damage except as provided by this chapter or as is provided or may be provided by other statute”) supports the Court’s interpretation of 507-B:2 as an exception for certain negligence cases to the broader statutory immunity provided by 507-B:5.
Panic is unwarranted. The immunity under RSA 507-B does not apply in all cases. First, it applies only in cases of bodily injury, personal injury, and property damage as those injuries are defined in RSA 507-B:1. For instance, claims for lost wages or damage to real property are unaffected by the statute. Second, the statutory immunity does not apply if liability is provided for by RSA 507-B or any other statute. Tort claims are permitted by other state statutes, such as RSA 507-B:2, and by federal statutes, such as 42 U.S.C. § 1983 (which frequently provides claims for excessive force, false arrest, and malicious prosecution). Third, RSA 507-B:4, IV allows claims against governmental employees for intentional torts unless those employees were acting in the scope of their employment and in good faith. The limited immunity conferred by RSA 507-B:4, IV upon the individual employees of governmental entities mirrors in execution the immunity the Supreme Court suggested the state should adopt in its 1985 Opinion of the Justices, 126 N.H. 554, 564 (1985). It is difficult to see how this framework could be deemed unacceptable as applied to municipalities but preferred by the Court as applied to the state. RSA 507-B:4, IV strikes an appropriate balance between protecting individual employees from liability and providing recourse to citizens who are damaged by the bad faith conduct of governmental actors. The Bar Journal article expresses the concern that these municipal employees are left out in the cold by RSA 507-B immunity, but any concern should be allayed by the fact that individual statutory immunity is denied only if they are acting in bad faith or outside the scope of their employment. In such cases, it hardly seems appropriate to require the governmental employer to provide coverage.
Finally, 507-B is not unconstitutional. For decades prior to Merrill, common law municipal immunity attempted to immunize governmental entities from liability for governmental functions while exposing them to liability for proprietary functions. Put simply, municipalities were immune when they acted as municipalities but not immune when they acted as citizens.
When judicially-created immunity was abrogated by the Court, the legislature answered the Court’s invitation to act by creating a statutory scheme that attempted to preserve the governmental-proprietary distinction. Municipalities are presumed to be immune from respondeat superior liability for certain intentional torts because they cannot insulate themselves from liability by refusing to perform functions that expose them to a heightened risk of those tort claims. For instance, a governmental entity cannot avoid exposure to claims for false arrest by refusing to arrest criminals. Municipal employees are likewise immune if they act in good faith and in the scope of their employment in performing those necessary governmental functions.
This type of immunity is constitutional as it accomplishes important governmental objectives; it preserves fiscal resources and protects the government from liability for undertaking tasks that only it can perform. Having invited the legislature to act in the wake of Merrill, the Supreme Court should respect the legislative and executive discretion reflected by the statute.
All immunities create classes of plaintiffs with limited rights to recovery—ask anyone who has been injured on a New Hampshire ski slope. Creating classes alone does not render an immunity unconstitutional. RSA 507-B is constitutional because it is substantially related to important government objectives. Nothing in the Dichiara decision changes that.