Cargill's Estate v. City of Rochester

• Decision Date: 21 September 1979
• Docket Number: No. 78-277,78-277
• Citation: 406 A.2d 704,119 N.H. 661
• Parties: ESTATE of Michael CARGILL, Russell Cargill, Administrator and Father and Next Friend of Michael Cargill v. The CITY OF ROCHESTER. John Michael MULCAHY, by his Father and Next Friend, and John J. Mulcahy, Individually v. The CITY OF ROCHESTER.
• Court: New Hampshire Supreme Court

Page 704

406 A.2d 704

119 N.H. 661

ESTATE of Michael CARGILL, Russell Cargill, Administrator

and

Father and Next Friend of Michael Cargill v. The CITY OF ROCHESTER.

John Michael MULCAHY, by his Father and Next Friend, and John J. Mulcahy, Individually v. The CITY OF ROCHESTER.

No. 78-277.

Supreme Court of New Hampshire.

Sept. 21, 1979.

Snierson, Chandler & McKean, Laconia, by brief, for plaintiffs cargill.

Holland, Donovan, Beckett & Welch, Exeter (Stephen G. Hermans, Exeter, orally), for plaintiffs Mulcahy.

Fisher, Parsons, Moran & Temple, Dover, and William B. Cullimore, Farmington, for the City of Rochester.

BROCK, Justice.

These companion petitions for declaratory judgment challenge the constitutionality of RSA 507-B:4 (Supp.1977), which limits tort recovery from governmental units to $50,000 for bodily injuries sustained by one person.

In Merrill v. City of Manchester, 114 N.H. 722, 332 A.2d 378 (1974), this court prospectively abrogated the common law tort immunity of cities and towns. At that time we invited the legislature to take appropriate action. The legislature then enacted RSA ch. 507-B (Supp.1977), effective July 1, 1975, defining and circumscribing the tort liability of certain governmental units other than the state itself. The plaintiffs contend that the statutory limitation on recovery is unconstitutional. We disagree.

On August 6, 1975, John Michael Mulcahy, then age twelve, and Michael Cargill, then age ten, were playing in the vicinity of an indoor swimming pool owned and operated by the city of Rochester as part of a municipal park. They entered a small unlocked wooden storage shed on city property, approximately twenty feet from the pool building, which contained a covered but unsealed fifty-five gallon drum, alleged to have contained methanol. One of the boys lit a match, whereupon the drum exploded and the shed was engulfed in flames. Both boys suffered second and third degree burns over more than sixty percent of their bodies. Michael Cargill died on September 6, 1975, from these injuries. John Mulcahy suffered permanent physical disabilities and disfigurement and required extensive medical treatment.

In November 1975, John Mulcahy and the Estate of Michael Cargill filed actions in negligence and strict liability against the city of Rochester, seeking damages of several million dollars in each case. The city, which has no insurance applicable to these actions, does not claim municipal immunity. It asserts, however, that RSA 507-B:4 (Supp.1977) limits its maximum liability in each case to $50,000. The plaintiffs brought these petitions for declaratory judgment, seeking a determination that RSA 507-B:4 (Supp.1977) is unconstitutional. The Trial Court (Mullavey, J.) transferred the case without a ruling.

Our decision in Merrill v. Manchester, 114 N.H. 722, 332 A.2d 378 (1974) abolished the judicially created bar of municipal immunity for reasons of policy, not on constitutional grounds. At that time we indicated 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." Id. at 730, 332 A.2d at 384 (emphasis added). "Absent violation of constitutional rights, the legislature may control governmental immunity." Brown v. Wichita State Univ., 219 Kan. 2, 7, 547 P.2d 1015, 1021, Appeal dismissed, 429 U.S. 806, 97 S.Ct. 41, 50 L.Ed.2d 67 (1976). See also Hardin v. City of Devalls Bluff, 256 Ark. 480, 483, 508 S.W.2d 559, 563 (1974).

The plaintiffs first contend that the statute violates part I, article 14 of the New Hampshire Constitution, which provides:

Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay, conformably to the laws.

The purpose of part I, article 14 was to make civil remedies readily available, and to guard against arbitrary and discriminatory infringements on access to the courts. State v. Basinow, 117 N.H. 176, 371 A.2d 458 (1977); 8 Bravenic, The New Hampshire Bill of Rights in the Constitution of 1784 and the Treatment of Dissenters During the American Revolution, 8 N.H.B.J. 244, 248 (1966).

This court has held that the rights guaranteed by part I, article 14 "are necessarily relative." Sousa v. State, 115 N.H. 340, 343, 341 A.2d 282, 284 (1975); Opinion of the Justices, 113 N.H. 205, 209, 304 A.2d 881, 885 (1973). The article does not prohibit all impairments of the right of access to the courts. Compare State v. Cushing, 119 N.H. ---, 399 A.2d 297 (1979) With State v. Basinow, supra.

Part I, article 14 does not guarantee that all injured persons will receive full compensation for their injuries. Cf., Hackett v. Perron, 119 N.H. ---, ---, 402 A.2d 193, 195 (1979). Where there exist compelling public policy reasons, a person injured by the negligence of another is in some instances barred from recovery altogether. See, e. g., RSA 508:12 (Supp.1977). Similarly, the legislature has established limits on the amount of recovery in various actions, including medical malpractice, RSA 507-C (Supp.1977), and wrongful death, RSA 556:13. We are not prepared to hold that all such limitations on the amount of recovery violate the constitutional rights of New Hampshire citizens. See Sousa v. State, supra; cf., Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978) (nuclear power plant accidents, U.S.Const. amend. V); New York Central R.R. v. White, 243 U.S. 188, 201, 37 S.Ct. 247, 61 L.Ed. 667 (1917) (workmen's compensation).

The plaintiffs' second argument is that RSA 507-B:4 (Supp.1977) denies them equal protection of the laws, in that it improperly creates different opportunities for recovery for victims of torts of the specified governmental units than for victims of private tortfeasors. The equal protection clause mandates that "those who are similarly situated be similarly treated." Belkner v. Preston, 115 N.H. 15, 17, 332 A.2d 168, 170 (1975); U.S.Const. amend. XIV; N.H.Const. pt. I, art. 1.

The threshold question is whether this statute unreasonably distinguishes between persons who in fact constitute a "natural class." See Reich v. State Highway Dep't, 386 Mich. 617, 623, 194 N.W.2d 700, 702 (1972). From the city's perspective, the statute treats alike anyone with a bodily injury claim against it or against any other specified governmental unit. We could avoid any equal protection problem by defining a class so small that everyone within it receives equal treatment.

From the plaintiffs' perspective, however, the statute does distinguish between persons similarly, if not identically situated. See Reich v. State Highway Dep't, supra. The plaintiffs here can easily demonstrate that, except for the fortuity of the identity of the tortfeasor, their situation is the same as if the explosion and fire had occurred on privately owned property. There is no question here of a plaintiff being treated differently because of his own status. See, e. g., Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). This statute affords certain plaintiffs different legal rights solely because of the identity or status of the defendant.

It is equally clear, however, that "there Are real and vital differences between the situations of governmental units and of private parties as potential tort defendants." Cooperrider, The Court, the Legislature, and Governmental Tort Liability in Michigan, 72 Mich.L.Rev. 187, 272 (1973) (emphasis in original). The threat of tort liability acts as an incentive for persons engaged in various activities to take steps to reduce the risk of injuries. See Calabresi, Optimal Deterrence and Accidents, 84 Yale L.J. 656 (1975). In the public sector, citizens can participate in the decisions that create the risk of injuries, including the selection and disciplining of public employees. See RSA ch. 273-A; N.H.Const. pt. I, art. 8 (Supp.1977). In the private sector, in contrast, the ability of the general public to influence safety decisions or employee conduct is much more limited. A municipality's decision whether to purchase insurance that provides coverage above the statutory level, RSA 412:3 (Supp.1977), can also be influenced by the views of its residents, the persons most in danger of sustaining bodily injuries as a result of the city's actions. Finally, a person who recovers judgment against one of the governmental units enumerated in the statute does not run the risk that no money will be available to pay the judgment. RSA 507-B:8 (Supp.1977); RSA 412:3 (Supp.1977). The question is whether these functional differences between governmental units and other tortfeasors are sufficient to sustain the legislature's differential treatment of them.

The plaintiffs argue that RSA 507-B:4 must be subjected to "strict scrutiny" because it touches a fundamental right, namely the right to recover for one's injuries. Cf. Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). We cannot accept this analysis. "Virtually every state statute affects important rights." Id. at 661, 89 S.Ct. at 1345 (Harlan, J., dissenting). This court recently held that a statute limiting a person's ability to practice her profession, which for some purposes may be a "fundamental right," was to be evaluated using the less stringent "rational basis" test. Richardson v. Brunelle, 119 N.H. ---, 398 A.2d 838 (1979). In State v. Piper, 117 N.H. 64, 369 A.2d 199 (1977), we applied the "rational basis" test to a statute criminalizing the possession of certain weapons, despite the fact that such statutes "touch on" the right to bear arms. U.S.Const. amend. II.

Finally, we held in Belkner v. Preston, 115 N.H. 15, ...