considering a challenge to municipal immunity, and holding in light of Article 14 that, nonetheless, municipalities remain “immune from liability for acts and omissions constituting (a) the exercise of a legislative or judicial function, and (b) 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”
How later courts described this case
- considering a challenge to municipal immunity, and holding in light of Article 14 that, nonetheless, municipalities remain “immune from liability for acts and omissions constituting (a) the exercise of a legislative or judicial function, and (b) 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”
- general negligence rule does not apply to acts or omissions constituting the exercise of a high degree of official judgment or discretion
- municipalities “are immune from liability for acts and omissions constituting (a) the exercise of a legislative or judicial function, and (b
- reversing previously stated position that question of expanding municipal liability is matter for legislature
Written by the judges who cited it.
The opinion
Duncan, J.,
concurring: I concur in the foregoing opinion with some reluctance, not so much because of what it decides, as because of what it portends. It is now eight years since members of the court in Gossler v. Manchester, 107 N.H. 310 , 221 A.2d 242 (1966), pointed out some of the inequities of governmental immunity, and professed a disposition to find remedies. Sporadically the subject has resurfaced, but without departure from stare decisis. See Allen v. Hampton, 107 N.H. 377 , 222 A.2d 833 (1966); Stott v. Manchester, 109 N.H. 59 , 242 A.2d 58 (1968); Hurley v. Hudson, 112 N.H. 365 , 296 A.2d 905 (1972). No legislative solution has materialized, and responsible action by the court counsels against mere repetition of past criticism. Most recently an interim study committee constituted by the 1973 legislature has some features of the problem under consideration in the form of Senate bill 21.2 N.H. H.R. Jour. 1797,2123(1973). While the legislative process may merit some deference, the court has a responsibility to decide the cases presented to it, and in so doing to determine future policy and the requirements of justice, albeit in piecemeal fashion, case by case, rather than by setting standards for the whole spectrum of governmental immunity.
Today’s decision, by departing from the intransigence of the past, challenges those who are in a position to further justice through law, and its implications call for careful consideration of consequences.
“The problems involved in drawing standards for govern *732 mental liability and governmental immunity are of immense difficulty. Government cannot merely be made liable as .private persons are, for public entities are fundamentally different from private persons. Private persons do not make laws .... Only public entities are required to build and maintain ... streets, sidewalks and highways. Unlike private persons, a public entity often cannot reduce its risk of potential liability by refusing to engage in a particular activity, for government must continue to govern and is required to furnish services that cannot be adequately provided by any other agency.” 4 Cal. Law Revision Comm’n, Reports, Recommendations and Studies 810 (1963); see Cooperrider, Governmental Tort Liability, 72 Mich. L. Rev. 187 , 288 (1973); Restatement (Second) of Torts ch. 45-A, §§ 895A-D (Tent. Draft No. 19, 1973).
Grimes, J., joined in the foregoing separate opinion.