Opinion

Merrill v. City of Manchester

  • 114 N.H. 722
  • 332 A.2d 378
  • 1974 N.H. LEXIS 361
Court
Supreme Court of New Hampshire
Filed
Nov 29, 1974
Status
Published
Author
Lampron
On the bench
Lampron, Duncan, Grimes
Cited by
74 cases
Authority
More cited than 9.2%

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

On Motion For Rehearing filed by the defendant city of Manchester and on motions to intervene and for rehearing filed by the plaintiffs in Norma B. Lavoie & a. v. Town of Allenstown a. (not docketed), Barbara S. Couture v. City of Portsmouth (No. 6588), and Timothy McGinnin v. City of Manchester (No. 6804).

Nixon, Christy & Tessier and John E. Peltonen {Mr. Peltonen orally) for Rita V. and Albert F. Merrill.

Kfoury & Williams {Mr. Paul R. Kfoury) for Alice E. Elhady.

Sulloway, Hollis, Godfrey & Soden and John C. Ransmeier {Mr. Ransmeier orally) for Norma B. Lavoie & a.

Shaines, Madrigan & McEachern and Sanford Roberts {Mr. Roberts orally) for Barbara S. Couture.

Green, Sullivan & Green {Mr. Leonard S. Green orally) for Timothy McGinnin.

NormanH. Stahl, interim city solicitor, andJamesE. Townsend {Mr. Stahl orally) for the city of Manchester.

*733 Richard F. Therrien and Sheehan, Phinney, Bass & Green and Claudia C. Dam'on (Mr. Therrien and Ms. Damon orally) for the town of Allenstown.

Peter J. Loughlin, city attorney, by brief and orally, for the city of Portsmouth.

Lampron, J.,

Defendant city of Manchester seeks a rehearing to have this court reconsider and reverse its decision abolishing the municipal immunity of cities and towns as of July 1, 1975. If not successful in that respect, the city asks that the new rule be applied prospectively only to torts occurring on or after the above date. Most, if not all, the reasons advanced in support of reversal were briefed and argued orally by the city and carefully considered by the court in arriving at its decision. No useful purpose would be served in reciting them a second time.

Suffice it to say that in its motion for rehearing the city has placed particular emphasis on the impact of the decision on municipal budgets and the difficult or probably impossible task of securing adequate insurance to protect cities and towns from the resulting liabilities. “Empirically, there is little support for the concern that the courts will be flooded with litigation if the [immunity] doctrine is abandoned”. Ayala v. Philadelphia Bd. of Pub. Educ., 305 A.2d 877, 882 (Pa. 1973). Nor has any factual basis been presented to support the city’s contention that the solvency of municipalities in this State would be threatened or their functions curtailed as a result of their new liability for tortious conduct in their governmental operations. See 35 ATLA L.J. 39, 40 (1974). Furthermore the dire predictions advanced by the city fail to take into account the fact noted by the court in its opinion that the legislature “has authority to specify the terms and conditions of suit against cities and towns, limit the amount of recovery, or take any other action which in its wisdom it may deem proper.” Merrill v. Manchester, 114 N.H. 722 , 332 A.2d 378 (1974).

We do not share the city’s difficulty in reconciling the Merrill decision with RSA 412:3. Its contention, in effect, is that this statute is intended to grant or confer by legislation immunity to cities and towns for tort liability above the limits *734 of any insurance they may have purchased even though minimal in amount. Such an interpretation is inconsistent with its legislative history and would give an unreasonable meaning to its expressed terms. Cushman v. Grafton, 97 N.H. 32 , 79 A.2d 630 (1951); Plymouth School Dist. v. State Bd. of Educ., 112 N.H. 74 , 289 A.2d 73 (1972); N.H.H.R. Jour. 633, 640, 970 (1951). The city’s other contention that the Merrill decision should be given prospective operation only was considered by this court when the case was decided. We remain of the opinion that it is just that the new rule be applied to the plaintiffs in the Merrill case. Becker v. Beaudoin, 106 R.I. 562 , 261 A.2d 896 (1970).

Intervenors, plaintiffs Lavoie, Couture, and McGinnin, seek reconsideration of the Merrill decision insofar as it provides that the abolition of municipal immunity will not apply to torts which have occurred or will occur before July 1, 1975. They seek to share the exception made for the plaintiffs in the Merrill case permitting them to maintain the actions which they had instituted before that decision. Intervenors have eloquently advanced arguments in support of retroactive application of the pertinent factors enumerated in Hampton Nat’l Bank v. Desjardins, 114 N.H. 68, 75 , 314 A.2d 654, 658 (1974), and for the reasons stated in the Merrill opinion we remain convinced that, except for the Merrill plaintiffs, the abolishment of municipal immunity should not be applied retrospectively. Hence the abrogation of the immunity of cities and towns for injuries negligently caused by their agents, servants and employees in the course of their employment does not apply to torts which have occurred or will occur before July 1, 1975, even if actions therefor have been instituted and were pending when the Merrill decision was rendered.

All motions denied.

All concurred.

January 31, 1975

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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