Kardulas v. City of Dover
| Court | Supreme Court of New Hampshire |
| Writing for the Court | LAMPRON |
| Citation | 99 N.H. 359,111 A.2d 327 |
| Decision Date | 28 January 1955 |
| Parties | Rena KARDULAS et al. v. CITY OF DOVER. |
Page 327
v.
CITY OF DOVER.
Decided Jan. 28, 1955.
[99 N.H. 360] McCabe & Fisher, Dover, and Beamis & Davis, Somersworth, for plaintiffs.
Burns, Calderwood & Bryant and Robert E. Hinchey, Dover, for defendant.
LAMPRON, Justice.
Municipal corporations are regarded as having a dual character. 'On the one hand they are subdivisions of the state endowed with governmental powers and charged with governmental functions and responsibilities. On the other they are corporate bodies, capable of much the same acts as private corporations, and having the same special and local interests and relations, not shared by the state at large.' Prosser, Torts 1067. It is now well settled in New Hampshire, as it is in most all jurisdictions (38 Am.Jur. 261), that a municipal corporation engaged in a governmental function is not liable for any negligence of its agents, servants and employees. Reynolds v. City of Nashua, 93 N.H. 28, 29, 35 A.2d 194; Cushman v. Grafton County, 97 N.H. 32, 33, 79 A.2d 630; Shea v. City of Portsmouth, 98 N.H. 22, 26, 94 A.2d 902. There is however a trend against such immunity. Tuengel v. City of Sitka, Alaska, D.C., 118 F.Supp. 399, 400; Prosser, Torts 1068; 38 Am.Jur. 266. It is also clearly the law that where a municipal corporation acts in a private capacity it is liable for its negligence. Douglas v. Hollis, 86 N.H. 578, 172 A. 433; Shea v. City of Portsmouth, supra, 98 N.H. 23, 94 A.2d 902.
The difficulty with this apparently clear distinction between the fields of immunity and of liability however is in its application to certain particular cases. Certain activities have been held to be governmental in nature; highway improvements, Fournier v. City of Berlin, 92 N.H. 142, 26 A.2d 366, 140 A.L.R. 1054, control of fires, Reynolds v. City of Nashua, supra; Shea v. City of Portsmouth, supra, operation of a playground in a public park, Piasecny v. City of Manchester, 82 N.H. 458, 136 A. 357, or of a swimming pool, Harkinson v. City of Manchester, 90 N.H. 554, 5 A.2d 721, maintenance in the city hall of a women's lounge and lavatory. Day v. City of Berlin, 1 Cir., 157 F.2d 323. There are also many other municipal functions which are governmental in nature. Edgerly v. Concord, 62 N.H. 8. Certain functions have been held to be corporate or proprietary in nature and the municipality liable for negligence arising therefrom such as...
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Parker v. Port Huron Hosp., Nos. 10
...Mississippi Baptist Hospital v. Holmes, 1952, 214 Miss. 906, 55 So.2d 142, 56 So.2d 709, 25 A.L.R.2d 12; Kardulas v. City of Dover, 1955, 99 N.H. 359, 111 A.2d 327; Rickbeil v. Grafton Deaconess Hospital, 1946, 74 N.D. 525, 23 N.W.2d 247, 166 A.L.R. 99; Collopy v. Newark Eye and Ear Infirma......
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Stott v. City of Manchester, No. 5690
...are not conclusive of the question of whether the particular undertaking is governmental or proprietary in character. Kardulas v. Dover, 99 N.H. 359, 111 A.2d 327; Shea v. Portsmouth, 98 N.H. 22, 26, 94 A.2d 902. See Krzysztalowski v. Fortin, 108 N.H. 187, 230 A.2d 750. In her well reasoned......
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Knight v. City of Tecumseh, Docket No. 20150
...function: (a) the purpose and function is more closely related to private institutions operating in the same field. Kardulas v. Dover, 99 N.H. 359, 111 A.2d 327 (b) patients who elect public rather than private service should not be made to bear the entire risk of negligent injury. Hernande......
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Opinion of the Justices
...City of Portsmouth, Page 281 98 N.H. 22, 94 A.2d 902; Reynolds v. City of Nashua, 93 N.H. 28, 35 A.2d 194. See Kardulas v. City of Dover, 99 N.H. 359, 360, 111 A.2d 327. Cf. Resnick v. City of Manchester, 99 N.H. 436, 113 A.2d 496; Mitchel v. Dover, 98 N.H. 285, 99 A.2d 409. The same immuni......
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Parker v. Port Huron Hosp., Nos. 10
...Mississippi Baptist Hospital v. Holmes, 1952, 214 Miss. 906, 55 So.2d 142, 56 So.2d 709, 25 A.L.R.2d 12; Kardulas v. City of Dover, 1955, 99 N.H. 359, 111 A.2d 327; Rickbeil v. Grafton Deaconess Hospital, 1946, 74 N.D. 525, 23 N.W.2d 247, 166 A.L.R. 99; Collopy v. Newark Eye and Ear Infirma......
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Stott v. City of Manchester, No. 5690
...are not conclusive of the question of whether the particular undertaking is governmental or proprietary in character. Kardulas v. Dover, 99 N.H. 359, 111 A.2d 327; Shea v. Portsmouth, 98 N.H. 22, 26, 94 A.2d 902. See Krzysztalowski v. Fortin, 108 N.H. 187, 230 A.2d 750. In her well reasoned......
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Knight v. City of Tecumseh, Docket No. 20150
...function: (a) the purpose and function is more closely related to private institutions operating in the same field. Kardulas v. Dover, 99 N.H. 359, 111 A.2d 327 (b) patients who elect public rather than private service should not be made to bear the entire risk of negligent injury. Hernande......
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Opinion of the Justices
...City of Portsmouth, Page 281 98 N.H. 22, 94 A.2d 902; Reynolds v. City of Nashua, 93 N.H. 28, 35 A.2d 194. See Kardulas v. City of Dover, 99 N.H. 359, 360, 111 A.2d 327. Cf. Resnick v. City of Manchester, 99 N.H. 436, 113 A.2d 496; Mitchel v. Dover, 98 N.H. 285, 99 A.2d 409. The same immuni......