Gossler v. City of Manchester

• Decision Date: 15 July 1966
• Citation: 221 A.2d 242,107 N.H. 310
• Parties: Mildred M. GOSSLER et al. v. CITY OF MANCHESTER.
• Court: New Hampshire Supreme Court

Page 242

221 A.2d 242

107 N.H. 310

Mildred M. GOSSLER et al. v. CITY OF MANCHESTER.

Supreme Court of New Hampshire.

Argued April 5, 1966.

Decided July 15, 1966.

King Nixon & Christy, Manchester (David L. Nixon, Manchester, orally), for plaintiffs.

J. Francis Roche, City Solicitor (by brief and orally), for defendant.

Sulloway, Hollis, Godfrey & Soden, Concord (Martin L. Gross, Concord, orally), for Edith Boisvert, amicus curiae.

WHEELER, Justice.

These are actions in case for personal injuries brought by Mildred M. Gossler against the city of Manchester, arising out of injuries sustained when she fell on a city sidewalk. Her husband Harry A. Gossler brings an action for consequential damages.

The defendant filed a motion to dismiss both actions as a matter of law on the grounds that maintenance of a highway is a governmental function on its part in the performance of which there can be no liability. The motions were granted and all questions of law raised thereby were reserved and transferred by Grimes, J.

The plaintiff concedes that applying existing law in this jurisdiction the defendant would be entitled to prevail. Reynolds v. Nashua, 93 N.H. 28, 35 A.2d 194; Shea v. Portsmouth, 9, N.H. 22, 94 A.2d 902; Opinion of the Justices, 101 N.H. 546, 548, 134 A.2d 279; Hermer v. Dover, 106 N.H. 534, 215 A.2d 693.

We are here urged to re-examine existing law and throw off the ancient shackles of governmental immunity prospectively and retrospectively as to the plaintiffs at bar. All counsel by their exhaustive research and comprehensive briefs have greatly aided us in considering this proposal.

The rule against municipal liability for torts has been the subject of thousands of pages of learned dissertations and the flood of legal articles and comments castigating the reasoning embodied in the justification of its continuance continues unabated. Typical of judicial comments against perpetuating the rule of governmental immunity is the statement found in Hargrove v. Town of Cocoa Beach, Fla., 96 So.2d 130 (1957) where the court in striking down municipal immunity declared: 'To continue to endow this type of organization (the city) with sovereign divinity appears to us to predicate the law of the Twentieth Century upon an Eighteenth Century anachronism. Judicial consistency loses its virtue when it is degraded by the vice of injustice.' Id. at p. 133. See also, Bourchard 'Governmental Responsibility in Tort,' 34 Yale L.J. 1, 129, 229; 36 Yale L.J. 17, 757; 29 N.Y. U.L.Rev. 1321.

It is agreed by most legal historians that the governmental immunity rule had its inception in Russell v. Men of Devon, 2 Term Reports 667, 100 Eng.Rep. 359 (1788). There recovery was denied for damages to the plaintiff's wagon caused by a defective bridge for the reason as therein stated, '(I)t is better that an individual should sustain an injury than that the public should suffer an inconvenience.' Id. at 362. This rule early became engrafted upon the common law of this state and Massachusetts, Farnum v. Town of Concord, 2 N.H. 392 (1821); Mower v. Inhabitants of Liecester, 9 Mass. 247 (1812).

'(W)hile the United States, and various state governments have through legislative action, accepted in some measure the principle of governmental tort liability the rule of municipal immunity except as limited by the qualifications and distinctions (Note par. 3) continues to be applied by the overwhelming majority of the courts of this country.' 60 A.L.R.2d 1193, 1200.

This immunity is generally considered to rest upon three sources: '(1) the supposed immunity of the sovereign from suit, which is extended to the municipality as representative, or the agency of the sovereign, (2) the idea that it is more expedient that scattered individuals suffer than that the public in general be inconvenienced, and (3) the considerations of the public policy involved in the theory that governmental agents will perform their duties more effectively if not hampered by tort liability.' Annot. 60 A.L.R.2d 1193, 1199. For a collection of cases upholding and abrogating sovereign immunity see: The Changing Concept of Sovereign Immunity, 1 Personal Injury Liability, Institute of Continuing Legal Education, 305, 309; 48 Minn.L.Rev. 265, 287; 6 Ariz.L.Rev. 102 (1964); 31 Journal of the American Trial Lawyers Association 186.

In some jurisdictions where the courts have abolished governmental immunity the legislatures have responded quickly with legislation either reinstating immunity or limiting the amount of recovery and the time in which an action may be brought. In Illinois after Militor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469, abolished immunity as to school districts, the Legislature passed a statute limiting recovery against school districts to $10,000 and imposing a short statute of limitations. Ill.Rev.Stat.1959, ch. 122, par. 821-831.

After California abolished immunity in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 (1961), the Legislature promptly enacted a statute suspending the effect of the decision in Muskopf and re-enacted the doctrine of governmental immunity from tort liability for a period of 91 days after the adjournment of the 1963 Legislature. Cal.Sess.Laws 1961.

Minnesota followed by abolishing school district immunity in Spanel v. Mounds View School District No. 621, 264 Minn. 279, 118 N.W.2d 795 (1962). The Legislature responded by enacting the '1963 Governmental Tort Liability Act,' Laws 1963, Chap. 798, which provides for certain specific exceptions and a maximum recovery.

The results of abrogating governmental immunity and opening wide the doors of the city treasury to unlimited tort claimants have been nearly catastrophic financially to some communities. For example, Muskopf, supra, resulted in a verdict of $2,500,000 of which the state appropriated $750,000; $275,000 against Newark, N.J. for negligence of a police officer; $358,000 claimed against Huntington Beach, Calif.; $259,000 against Stockton, Calif.; $600,000 against Atlantic City. 28 Nimlo Municipal New Review, 1965 ed. 448.

Amicus curiae after examination and review of some fifty-three cases in this jurisdiction correctly points out that this court has itself recognized that the cases are not always reconcilable. Robidas v. City of Concord, 70 N.H. 90, 47 A. 82, 51 L.R.A. 381; O'Brien v. County of Rockingham, 80 N.H. 522, 120 A. 254.

In Robidas, supra, Peaslee, J., after an extensive review of the cases concluded: 'A careful consideration of these cases must lead to the conclusion that there is no general rule by which the common-law liability of towns has been ascertained. That there is such a liability in certain cases is well established in this state. * * * What cases will or will not come within this class may be determined, to some extent, by a process of elimination.' These cases were put into three general classifications sustaining governmental immunity (1) for the improper discharge of a purely governmental function. Eastman v. Meredith, 36 N.H. 284, (2) for neglect to perform duties imposed upon them without their consent, Sargent v. Town of Gilford, 66 N.H. 543, 2m A. 306; and for the acts of officers whose powers and duties are so fixed by the Legislature that the town cannot control or direct their actions. Ball v. Town of Winchester, 32 N.H. 435.

Our Legislature by the enactment of certain statutes creating liability as to certain purely governmental functions has indicated an awareness of the doctrine of governmental immunity and a desire that it be otherwise continued. See RSA 245:20 (change in grade of highway); RSA 247:17 (bridges, culverts, sluiceway, or dangerous embankments); RSA 412:3 (immunity waived to extent of insurance coverage). RSA 247:9, 247:10 (notice of insufficiency). See Cushman v. Grafton County, 97 N.H. 32, 79 A.2d 630; Consoli v. Commonwealth Insurance Company, 97 N.H. 224, 226, 84 A.2d 926.

Congress recognized the inequities which...