Lahm v. Farrington

• Decision Date: 14 March 2014
• Docket Number: No. 2012–902,2012–902
• Citation: 166 N.H. 146,90 A.3d 620
• Parties: Kenneth LAHM v. Michael FARRINGTON & a.
• Court: New Hampshire Supreme Court

166 N.H. 146

90 A.3d 620

Kenneth LAHM

v.Michael FARRINGTON & a.

No. 2012–902

Supreme Court of New Hampshire.

Argued: November 13, 2013

Opinion Issued: March 14, 2014

Michael J. Sheehan, of Concord, by brief and orally, for the plaintiff.

Gallagher, Callahan & Gartrell, P.C., of Concord (Charles P. Bauer and Robert J. Dietel on the brief, and Mr. Dietel orally), for the defendants.

Joseph A. Foster, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State of New Hampshire, as amicus curiae.

Terence M. O'Rourke, assistant county attorney, by brief and orally, for the Carroll County Attorney's Office, as amicus curiae.

Rath, Young and Pignatelli, P.C., of Concord (Michael S. Lewis on the brief and orally), for the New Hampshire Coalition Against Domestic and Sexual Violence, as amicus curiae.

William Hart, of Derry, by brief, and Cullen Collimore PLLC, of Nashua (Brian J.S. Cullen and Shelagh C.N. Michaud on the brief), for the New Hampshire Association of Chiefs of Police, as amicus curiae.

Ransmeier & Spellman, P.C., of Concord (Andrew B. Livernois on the brief), for Primex, as amicus curiae.

HICKS, J.

The plaintiff, Kenneth Lahm, appeals an order of the Superior Court (O'Neill, J.) granting summary judgment to the defendants, Detective Michael Farrington and the Town of Tilton (Town), in this negligence action. We affirm.

The trial court found, or the record supports, the following facts. On February 28 and 29, 2008, Farrington interviewed an alleged victim who was recovering from severe burns and bruises at Concord Hospital, and who stated that she believed she had been sexually assaulted. The alleged victim claimed that, three days earlier, she had gone home with Lahm after drinking approximately four beers at a bar. She claimed that, upon arriving at Lahm's house, Lahm gave her two drinks containing Red Bull, after which she "passed out" and did not remember anything until waking three days later in Lahm's bed, without any clothes, and discovering severe burns and bruises on her body. A urinalysis test detected the presence of multiple drugs.

After concluding his interview with the alleged victim, Farrington applied for warrants to arrest Lahm for second-degree assault, and to search his property for evidence of the crime. On February 29, 2008, a justice of the peace found probable cause to arrest Lahm, and issued an arrest warrant. That same day, a district court judge found probable cause to believe that evidence of aggravated felonious sexual assault may be found on Lahm's property, and issued a search warrant. Both warrants were executed on March 1, 2008. Following Lahm's arrest and the search of his house, an evidentiary probable cause hearing was held on April 14, 2008, at which a judge found probable cause that Lahm had committed second-degree assault.

Lahm hired private investigators, who interviewed, among other people, neighbors who recalled seeing the alleged victim outside Lahm's house during the time she claimed to have been passed out. The investigators also interviewed a friend of Lahm, a medical doctor who said that he spoke to the alleged victim by phone about her injuries, and that she told him they had been caused by her having accidentally fallen onto a wood stove. Lahm claims that, once the prosecution received this and other "exculpatory information," which he provided to the court, it dropped the pending charge against him.

Lahm sued Farrington and the Town, alleging that Farrington had conducted a negligent investigation prior to his arrest, and that the Town was vicariously liable. The defendants moved for summary judgment on the basis, among other grounds, that Farrington "did not have a legal duty to investigate beyond establishing probable cause before arresting and bringing a criminal charge against [Lahm]." On August 23, 2012, the Superior Court (O'Neill, J.) granted the defendants' motion, noting that "no objection ... ha[d] been filed."

On August 28, 2012, Lahm moved for reconsideration and objected to the motion for summary judgment. The trial court granted the motion for reconsideration, but, following a hearing, concluded that Farrington "did not owe [Lahm] a legal duty to investigate beyond establishing probable cause before arresting and charging [Lahm]." This appeal followed.

In reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Dichiara v. Sanborn Regional School District, ––– N.H. ––––, 82 A.3d 225, 227 (2013). If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment. Id. We review the trial court's application of the law to the facts de novo. Id.

The sole issue that is properly before us is whether Farrington owed Lahm a duty to investigate, beyond establishing probable cause, before seeking to effectuate his arrest. Whether a duty exists in a particular case is a question of law, which we review de novo. Carignan v. N.H. Int'l Speedway, 151 N.H. 409, 412, 858 A.2d 536 (2004).

To recover for negligence, a plaintiff must demonstrate that the defendant owes a duty to the plaintiff, that he breached that duty, and that the breach proximately caused injury to the plaintiff.

Pesaturo v. Kinne, 161 N.H. 550, 557, 20 A.3d 284 (2011). Absent a duty, a defendant cannot be liable for negligence. Carignan, 151 N.H. at 412, 858 A.2d 536 ; see, e.g., Macie v. Helms, 156 N.H. 222, 225, 934 A.2d 562 (2007) (affirming grant of summary judgment in favor of defendant on negligence claim because he did not owe plaintiff a duty to operate a tractor-trailer in a safe manner "under the circumstances of this case"); Dewyngaerdt v. Bean Ins. Agency, 151 N.H. 406, 409, 855 A.2d 1267 (2004) (upholding trial court's dismissal of negligence claim because plaintiff "did not allege sufficient facts to demonstrate that [defendant] had a duty to inform or to advise [plaintiff]" in manner alleged by plaintiff).

"When charged with determining whether a duty exists in a particular case, we necessarily encounter the broader, more fundamental question of whether the plaintiff's interests are entitled to legal protection against the defendant's conduct." Pesaturo, 161 N.H. at 555, 20 A.3d 284. "In making this determination, we consider whether the social importance of protecting the plaintiff's interest outweighs the importance of immunizing the defendant from extended liability." Id.

As Lahm acknowledges, we have never held that police officers owe criminal suspects a duty to investigate beyond establishing probable cause prior to arrest. We note that courts that have considered whether to recognize a common law tort of negligent investigation by law enforcement officers have held that no such tort exists. See, e.g., Waskey v. Municipality of Anchorage, 909 P.2d 342, 344 (Alaska 1996) ("The arresting officer owed [plaintiff] no duty of care to proceed without error when he initiated legal action against [plaintiff's brother, who misidentified plaintiff as the subject of arrest warrant]. Because the arresting officer owed [plaintiff] no duty of care, no duty was breached, and no negligence claim can be maintained."); Smith v. State, 324 N.W.2d 299, 300, 302 (Iowa 1982) (overruling trial court's denial of motion to dismiss and holding, as a matter of law, that there is no tort of negligent investigation of a crime by law enforcement officers); cf. Acosta v. Ames Department Stores, Inc., 386 F.3d 5, 12 (1st Cir.2004) (affirming grant of summary judgment disposing of state law negligence claim where "the police acted reasonably in making their probable cause determination and had no duty to investigate further before arresting the appellant").

Lahm first argues that Smith, which he acknowledges "does support defendants' position," is "not completely helpful." He takes issue with the Iowa Supreme Court's reasoning, in which that court noted:

The public has a vital stake in the active investigation and prosecution of crime. Police officers and other investigative agents must make quick and important decisions as to the course an investigation shall take. Their judgment will not always be right; but to assure continued vigorous police work, those charged with that duty should not be liable for mere negligence.

Smith , 324 N.W.2d at 301. In contrast to the Smith court's general assessment of police work, Lahm contends, "Farrington was not under pressure to make ‘quick’ decisions regarding his investigation" because the alleged victim "was away from Lahm, any crimes occurred days before, and Farrington could easily have spent a day or two learning the facts that Lahm's investigators did after the arrest."

Even assuming, without deciding, that all of these contentions are true, the rationale articulated in Smith remains persuasive. As discussed more fully below, police officers' interest in conducting criminal investigations without fear of liability for negligence, which exists even in non-expedited cases, weighs heavily against the significant interests of criminal suspects.

Lahm next argues that several cases, and a provision in the Restatement (Second) of Torts, involving causes of action other than negligence, provide "indirect authority to support [his] claim against Farrington." In particular, he argues that these authorities demonstrate that "courts are willing to hold police officers to a negligence standard in appropriate circumstances, including a duty to conduct a reasonable inquiry before taking official action against a citizen." However, none of the authorities he cites establishes a duty of police officers to investigate, beyond establishing probable cause, prior to arrest. Rather, they merely articulate "appropriate circumstances" under which a criminal suspect may seek relief...