Dunaisky v. State, s. 80-295

• Decision Date: 02 April 1982
• Docket Number: 80-306,Nos. 80-295,s. 80-295
• Citation: 122 N.H. 280,444 A.2d 532
• Parties: Michael DUNAISKY et al. v. The STATE of New Hampshire et al. TOWN OF ENFIELD, Connecticut v. The STATE of New Hampshire et al.
• Court: New Hampshire Supreme Court

Page 532

444 A.2d 532

122 N.H. 280

Michael DUNAISKY et al. v. The STATE of New Hampshire et al.

TOWN OF ENFIELD, Connecticut v. The STATE of New Hampshire et al.

Nos. 80-295, 80-306.

Supreme Court of New Hampshire.

April 2, 1982.

Barrett & McNeill, P. A., Durham (John T. Barrett, Durham, on the brief and orally), for plaintiffs.

Gregory H. Smith, Atty. Gen. (Loretta S. Platt, Concord, attorney, on the brief and Jeffrey R. Cohen, Asst. Atty. Gen., orally), for the State.

BOIS, Justice.

The issue in these cases is whether the State of New Hampshire and the New Hampshire Hospital are liable to the plaintiffs, a Connecticut police officer and his wife and the town who employed him, for personal injuries and property damage caused by an escaped mental patient who forced a police car off the road in Connecticut.

On October 19, 1973, Jacinto Oliveria was admitted to the New Hampshire Hospital for involuntary emergency hospitalization because he posed a strong likelihood of harm to himself and others. See RSA 135-B:19 (Supp.1981). He escaped from the New Hampshire Hospital on November 12, 1973, and stole a car in Springfield, Massachusetts, on December 2, 1973. During a high-speed chase, Oliveria forced the plaintiff, Michael Dunaisky, an Enfield, Connecticut police officer who was pursuing him, into a guardrail. Dunaisky's cruiser was damaged, and he sustained injuries to his neck and back. Oliveria, incoherent when arrested, spoke about such topics as flying saucers, communists, and fishing with St. Peter.

On November 9, 1979, Michael Dunaisky and his wife Shirley commenced actions in Merrimack County Superior Court against the defendants, the State of New Hampshire and the New Hampshire Hospital, seeking damages for personal injury and loss of consortium. They claimed their injuries resulted from the defendants' negligence in failing to control and restrain Oliveria. The Town of Enfield, Connecticut, also alleging negligence, sued the defendants for $1,605, which represented the amount of damage to Officer Dunaisky's police cruiser.

The State filed motions to dismiss which were based in part on an assertion of its sovereign immunity. The motion to dismiss the Town of Enfield's action was granted by Cann, J., and the motions to dismiss the Dunaiskys' actions, were granted by DiClerico, J. The plaintiffs appealed to this court, and we affirm.

Assuming arguendo that the New Hampshire Hospital owed the plaintiffs a duty to conform its conduct to a certain standard of care, and that the plaintiffs could prove that the hospital had acted unreasonably and caused their injuries, they would not be able to recover against the State because sovereign immunity is the "law of [this] state." RSA 99-D:1 (Supp.1981); see Sousa v. State, 115 N.H. 340, 342, 341 A.2d 282, 283 (1975). Although a state may waive its immunity, id. at 344, 341 A.2d at 285; 2 F. Harper & F. James, The Law of Torts § 29.4, at 1613-14 (1956), New Hampshire has not done so in the area of negligence. Cf. Sousa v. State, 115 N.H. at 344, 341 A.2d at 285 (statutory exceptions to sovereign immunity rule). Under the present state of our law, the plaintiffs' negligence claims against the State and the New Hampshire Hospital are barred.

We also reject the plaintiffs' claim that they have a cause of action against the State under RSA ch. 135-B (Supp.1981). It was enacted to protect the rights of mentally ill persons confined to State institutions by allowing them to bring legal actions for damages against the State. Chasse v. Banas, 119 N.H. 93, 96, 399 A.2d 608, 610 (1979). The statute waives sovereign immunity only for suits brought pursuant to RSA ch. 135-B (Supp.1981) by involuntarily committed patients; no rights are conferred on a Connecticut town, a policeman employed by that town, or the policeman's wife.

Even if we were to assume arguendo that RSA ch. 541-B (Supp.1981) (Board of Claims) is remedial in nature and retroactive in its application, the plaintiffs could not present a claim jurisdictionally cognizable by the board of claims. See RSA 541-B:9 (Supp.1981); cf. Lozier v. Brown Company, 121 N.H. 67, 68-69, 426 A.2d 29, 31 (1981); Liberty Mut. Ins. Co. v. Home Ins. Indem. Co., 117 N.H. 269, 270-71, 371 A.2d 1171, 1173 (1977) (remedial statutes may be applied retroactively). RSA 541-B:14...