Hacking v. Town of Belmont

• Decision Date: 14 May 1999
• Docket Number: No. 97–682.,97–682.
• Citation: 143 N.H. 546,736 A.2d 1229
• Court: New Hampshire Supreme Court
• Parties: Nancy and Charles HACKING, Jr., As Parents and Next Friends of Chelsea Hacking v. TOWN OF BELMONT and another.

143 N.H. 546

736 A.2d 1229

Nancy and Charles HACKING, Jr., As Parents and Next Friends of Chelsea Hacking

v.TOWN OF BELMONT and another.

No. 97–682.

Supreme Court of New Hampshire.

May 14, 1999.

Nixon, Raiche, Manning & Casinghino, P.A., of Manchester (Gary L. Casinghino on the brief and orally), for the plaintiffs.

Devine, Millimet & Branch, P.A., of Manchester (Donald E. Gardner and Dyana J. Crahan on the brief, and Ms. Crahan orally), for the defendants.

BROCK, C.J.

This is an interlocutory appeal, see Sup.Ct. R. 8, by the defendants, the Town of Belmont and the Shaker Regional School District, from a ruling of the Superior Court (Arnold , J.) denying their motion to dismiss. The plaintiffs, Nancy and Charles Hacking, Jr., have asserted several theories of negligence against the defendants for injuries that their daughter, Chelsea Hacking, sustained in a basketball game. We affirm in part, reverse in part, and remand.

The plaintiffs have alleged the following facts. On or about January 27, 1995, when she was a sixth grade student at the Canterbury Elementary School, Chelsea participated in a girls basketball game against a team from the Belmont Elementary School. During that game, which was organized by the defendants and/or the Town of Canterbury, the referees, coaches, instructors, and employees of the defendants permitted the game to escalate out of control. Belmont players twice knocked Chelsea down and stepped on her leg. As a result, she suffered permanent injury to her left leg, underwent surgery and other medical treatment, and will require future medical care.

The plaintiffs brought an action against the defendants alleging several theories of negligence. In the first count of their writ, they alleged that the defendants breached a duty to exercise reasonable care and supervision of the game, to ensure that the game was kept under reasonable control, and to prevent the game from escalating out of control (Count I). In the second count, they alleged under a theory of respondeat superior that the defendants' employees, coaches, instructors, and referees breached a duty to supervise and control the game properly and to ensure that the participants played in a safe manner (Count II). In the third count, they alleged that the defendants failed to train and supervise properly their employees, coaches, instructors, and referees to conduct the game (Count III).

The defendants moved to dismiss for failure to state a claim upon which relief may be granted, arguing that the doctrines of discretionary function immunity and assumption of the risk warranted dismissal of the plaintiffs' claims. The defendants argued that their decisions concerning the organization of the game, such as who to select as coaches and referees and how much training to provide them, were discretionary and entitled to immunity. Likewise, they argued that the referees' decisions regarding the appropriate calls to make during the game were discretionary. The defendants further argued that Chelsea voluntarily assumed the risk of accidental injury that is inherent in the game of basketball.

The trial court denied the motion to dismiss. The court noted that to the extent the plaintiffs' writ refers to the defendants' discretionary decisions in planning and setting policy regarding school sports, the defendants are entitled to immunity. Reading the allegations in the light most favorable to the plaintiffs, however, the court concluded that the claims refer not to basic policy decisions, but to ministerial conduct. The court also ruled that the doctrine of assumption of the risk did not, as a matter of law, bar the plaintiffs' claims.

The defendants moved to reconsider, reasserting their immunity arguments. In addition, they argued that the referees and coaches, who they asserted were volunteers, were themselves immune from liability by statute. See RSA 508:17, I (1997) (amended 1998). Because the coaches and referees were immune from liability, they argued, no liability could be imputed to the defendants under a respondeat superior theory. The court denied their motion for reconsideration, and this interlocutory appeal ensued.

On appeal the defendants contend that the trial court erred in: (1) ruling that the defendants are not entitled to discretionary function immunity for their decisions regarding the selection, training, and supervision of the coaches and referees who participated in the game, and for the decisions made by the coaches and referees during the game; (2) denying the motion to dismiss on the grounds that the plaintiffs' claims are not barred by assumption of the risk; and (3) failing to address the defendants' assertion that the plaintiffs' claim of respondeat superior liability must fail.

In reviewing an order on a motion to dismiss for failure to state a claim upon which relief may be granted, "we ask whether the plaintiff[s'] allegations are reasonably susceptible of a construction that would permit recovery." Konefal v. Hollis/Brookline Coop. School Dist. , 143 N.H. 256, ––––, 723 A.2d 30, 32 (1998) (quotation omitted). "We assume the truth of the plaintiff[s'] well pleaded allegations of fact and construe all reasonable inferences from them most favorably to the plaintiff[s]." Hickingbotham v. Burke , 140 N.H. 28, 30, 662 A.2d 297, 299 (1995) (quotation and ellipsis omitted).

I. Discretionary Function Immunity

The defendants' first allegation of error requires us to review once again the doctrine of discretionary function immunity. In Merrill v. Manchester , 114 N.H. 722, 729, 332 A.2d 378, 383 (1974), we abrogated the doctrine of municipal immunity. In so doing, we established that as a general rule, municipalities are "subject to the same rules as private corporations if a duty has been violated and a tort committed." Id. at 730, 332 A.2d at 383.

As an exception to the general rule, however, we held that municipalities are immune from liability for acts and omissions that constitute "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." Id. at 729, 332 A.2d at 383. We have recognized that "[c]ertain essential, fundamental activities of government must remain immune from tort liability so that our government can govern." Mahan v. N.H. Dep't of Admin. Services , 141 N.H. 747, 750, 693 A.2d 79, 82 (1997) (quotation and brackets omitted) (decided under the discretionary function exception to the State's waiver of sovereign immunity). Accordingly, in evaluating whether the trial court erred, we must "distinguish between planning or discretionary functions and functions that are purely ministerial." Bergeron v. City of Manchester , 140 N.H. 417, 421, 666 A.2d 982, 984 (1995).

We have refused to adopt a bright line rule to determine whether conduct constitutes discretionary planning or merely the ministerial implementation of a plan. See id. at 421, 666 A.2d at 985; Gardner v. City of Concord , 137 N.H. 253, 258, 624 A.2d 1337, 1340 (1993). We have, however, adopted the following test:

When the particular conduct which caused the injury is one characterized by the high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning, governmental entities should remain immune from liability.

Bergeron , 140 N.H. at 421, 666 A.2d at 984 (quotation omitted). In applying this test, "[w]e distinguish policy decisions involving the consideration of competing economic, social, and political factors from operational or ministerial decisions required to implement the policy decisions." Mahan , 141 N.H. at 750, 693 A.2d at 82.

To the extent that the plaintiffs challenge the defendants' decisions regarding the training and supervision of the coaches and referees, the defendants are immune from liability. There is no question that the decision whether or not to have a fifth and sixth grade girls basketball program is characterized by a high degree of discretion in making public policy and planning choices. See Bergeron , 140 N.H. at 421, 666 A.2d at 984 (quotation omitted); cf . DiFruscia v. N.H. Dept. of Pub. Works & Highways , 136 N.H. 202, 205, 612 A.2d 1326, 1328 (1992) (decided under the discretionary function exception to the State's waiver of sovereign immunity) (decision whether or not to place a guardrail on a highway is discretionary). Likewise, the decisions regarding what training and supervision to provide those whom the defendants chose to run the program are planning decisions requiring a high degree of discretion. Cf . Bergeron , 140 N.H. at 425, 666 A.2d at 987 (because ultimate decision regarding traffic controls at intersection was discretionary, intermediate decision regarding whether to have staff keep track of accidents at intersection also discretionary). These decisions necessarily involve the most prudent allocation of municipal resources, and thus the weighing of "competing economic, social, and political factors." Mahan , 141 N.H. at 750, 693 A.2d at 82; cf . Phillips v. Thomas , 555 So.2d 81, 85 (Ala.1989) (defendant entitled to discretionary function immunity for negligent training and supervision claim); Brooks v. Logan , 127 Idaho 484, 903 P.2d 73, 77 (1995) (school district entitled to discretionary function immunity for failure to train staff to prevent student suicide); Erskine v. Commissioner of Corrections , 682 A.2d 681, 686 (Me.1996) (defendants' actions in training and supervising personnel protected by discretionary immunity); Miller v. Szelenyi , 546 A.2d 1013, 1021 (Me.1988) (proper supervision and control of employees required exercise of discretion). Accordingly, the trial court should have dismissed Count III, and we reverse its decision with respect to that count.

Although the plaintiffs acknowledge that the issue of training might involve some degree of a policy judgment, they assert that a...