Bar News - August 20, 2014
Workers Comp & Personal Injury: Two Recent Cases Hone NH Municipal Immunities
By: Michael McGrath
Adding to the intricate web of statutes and case law that govern New Hampshire municipal liability and immunity, two recent NH Supreme Court decisions have again addressed the limits of liability and immunity in the municipal context.
First, some background: In 1974, the New Hampshire Supreme Court, in Merrill v City of Manchester, abrogated the long established absolute immunity provided to municipalities from tort claims. The court opined that “This removal... places them subject to the same rules as private corporations if a duty has been violated and a tort committed... it places responsibility on cities and towns under the doctrine of respondeat superior for injuries negligently caused by their agents, servants and employees in the course of their employment.”
The NH Legislature responded by adopting RSA Chapter 507-B, which limits but does not bar liability. RSA 507-B:5 provides municipalities immunity from any “action to recover for bodily injury, personal injury or property damage except as provided by this chapter... or other statute.”
RSA 507-B:2 creates an exception to the immunity for injuries “arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises” not including streets, sidewalks and highways. In addition, the New Hampshire Supreme Court has upheld the doctrine of discretionary function immunity, which applies to “the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion.” See Merrill v. Manchester.
The limits of liability and the discretionary function immunity have repeatedly been addressed by the New Hampshire Supreme Court, most recently in Dichiara v. Sanborn Regional School District (2013) and Huckins v. McSweeney (2014).
In Dichiara, the plaintiff was injured while participating in a high school basketball tryout at Sanborn Regional High School. The plaintiff filed a negligence action, and the trial court granted summary judgment, ruling that the plaintiff’s injury did not arise out of the ownership, occupation, maintenance or operation of motor vehicles or premises.
According to the Dichiara decision, the plaintiff argued on appeal that municipal liability for negligence was not limited to negligence related to the ownership, occupation, maintenance or operation of motor vehicles or premises. The court rejected the argument and held that RSA 507-B:2 grants liability for personal injury “only when there is a nexus between the injury and a governmental unit’s ownership, occupation, maintenance, or operation of a motor vehicle or premises.”
A prior case, Hacking v. Belmont (1999), addressed a virtually identical factual situation to Dichiara. The plaintiff was injured during a basketball game and brought claims of negligence against the town and school district. The Hacking court did not address whether the conduct of a basketball game constituted the ownership, occupation, maintenance or operation of the premises. Rather, the court discussed discretionary function immunity and held that it did not apply to the decisions of the coaches and referees during the basketball game.
The Dichiara decision did not mention Hacking, but noted that the plaintiff had not challenged the trial court’s ruling that his injuries arose out of the ownership, maintenance or operation of the premises. Apparently this finding distinguishes Dichiara from Hacking. If that is the case, it remains an open question as to whether conducting a sporting event on a school premises constitutes ownership, maintenance or operation of the premises.
In Huckins v. McSweeney (2014), the NH Supreme Court addressed whether RSA 507-B:2 and 5 were constitutional, to the extend they prevent recovery on a claim of respondeat superior for the intentional tort of a municipal employee.
In Huckins, the plaintiff alleged civil battery because a police officer used his stun gun multiple times. The court held that RSA 507-B:2 and 5 “provide immunity to municipalities for any intentional tort committed by a municipal employee under the same terms and conditions as RSA 541-B:19 provides sovereign immunity to the State for any intentional tort committed by a State employee.”
This ruling extended immunity to any municipal employee who commits an intentional tort if the “employee whose conduct gives rise to the claim reasonably believes, at the time of the acts or omissions complained of, that his conduct was lawful, and provided further that the acts complained of were within the scope of official duties of the employee.”
The Huckins decision acknowledged the plaintiff’s argument that Dichiara resulted in different treatment for those injured by negligent municipal employees versus those injured by negligent state employees. The court declined to address the argument, as there was no claim of negligence in the Huckins case.
While there remain open issues, such as an equal protection argument on the constitutionality of RSA 507-B:2 and RSA 507-B:5 relative to negligence claims, Dichiara and Huckins have certainly honed the edge of municipal liability. Plaintiff’s counsel should take care in tailoring pleadings to ensure they are describing causes of action that remain viable in light of these recent decisions.
Michael McGrath is a partner at Upton & Hatfield and is the current president of the New Hampshire Association for Justice. His practice focuses on personal injury, employment and civil litigation.