Merrill v. City of Manchester

Decision Date29 November 1974
Docket NumberNo. 6281,6281
CourtNew Hampshire Supreme Court

Nixon, Christy & Tessier and John E. Peltonen, Manchester, for Rita V. and Albert F. Merrill.

Kfoury & Williams, Manchester (Paul R. Kfoury, Manchester, orally), for Alice E. Elhady.

J. Francis Roche and Clifford J. Ross, City Sols., for the city of Manchester.


Nixon, Christy & Tessier and John E. Peltonen, Manchester, for Rita V. and Albert F. Merrill.

Kfoury & Williams, Manchester (Paul R. Kfoury, Manchester), for Alice E. Elhady.

Sulloway, Hollis, Godfrey & Soden and John C. Ransmeir, Concord, for Norma B. Lavoie and another.

Shaines, Madrigan & McEachern and Sanford Roberts, Portsmouth, for Barbara S. Couture.

Green, Sullivan & Green (Leonard S. Green, Manchester, Orally), for Timothy McGinnin.

Norman H. Stahl, Interim City Sol., and James E. Townsend, Manchester, for the city of Manchester.

Richard F. Therrien and Sheehan, Phinney, Bass & Green, and Claudia Cords Damon, Manchester, for the town of Allenstown.

Peter J. Loughlin, City Atty., by brief and orally, for the city of Portsmouth.

LAMPRON, Justice.

Actions by Albert and Rita Merrill, Husband and wife, for damages resulting from a fall by Rita on July 2, 1970, caused by a defect in a sidewalk alleged to be attributable, at least in part, to the negligence of employees of the city of Manchester. Consolidated therewith was an action by Alice E. Elhady for damages sustained on August 20, 1970, when she was thrown about in the interior of an automobile in which she was a passenger when the car came in contract with a large hole in a public street, which defect was also allegedly attributable, at least in part, to the negligence of employees of the city. The city filed motions to dismiss these actions as a matter of law on the ground that these occurrences resulted from a governmental function for which there is no liability. The motions were granted by Loughlin, J., who reserved and transferred plaintiffs' exceptions. We are asked by the plaintiffs to reconsider and abolish the existing immunity of a city of town from liability for such accidents. See Gossler v. Manchester, 107 N.H. 310, 221 A.2d 242 (1966).

It is generally understood that the doctrine by which municipal corporations are held immune from liability in tort originated with the case of Russell v. Men of Devon, 2 Term Rep. 667, 100 Eng.Rep. 359 (1789); see Restatement (Second) of Torts § 895 C, Comment c (Tent.Draft No. 19, 1973). At that time the idea of a municipal corporation was still in a nebulous state and actions were brought against the entire population. There being no corporate funds out of which satisfaction of a judgment could be obtained, individual citizens would be required to pay it themselves. Hence the court held in substance that it was better that the injured person should be without a remedy than that the public should suffer the inconvenience of the multiplicity of actions which would result if liability were recognized.

Later decisions evolved the following additional reasons for municipal immunity: A municipality derives no profit from the exercise of governmental functions which are solely for the public benefit; cities and towns could not carry on their functions if moneys raised by taxation for public use were diverted to making good for torts of employees; modification or abolition of municipal immunity is a matter for the legislature and not for the courts. W. Prosser, Law of Torts § 131, at 978 (4th ed. 1971).

That an individual injured by the negligence of the employees of a municipal corporation should bear his loss himself as advocated in the Russell case, supra, instead of having it borne by the public treasury to which he and all other citizens contrubute, offends the basic principles of equality of burdens and of elementary justice. Becker v. Beaudoin, 106 R.I. 562, 568, 261 A.2d 896, 900 (1970); Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill.2d 11, 21, 163 N.E.2d 89, 93 (1959). It is foreign to the spirit of our constitutional guarantee that every subject is entitled to a legal remedy for injuries he may receive in his person or property. N.H. Const. pt. I, art. 14. 'To secure to all as perfect equality of privilege and of burden as human wisdom permits, was the chief end sought by the framers of the instrument.' Opinion of the Justices, 86 N.H. 597, 599, 166 A. 640, 645 (1933). It is also contrary to the basic concept of the law of torts that liability follows negligence and that individual corporations are responsible for the negligence of their agents, servants and employees in the course of their employment. Spencer v. General Hosp., 138 U.S.App.D.C. 48, 425 F.2d 479, 487 (1969) (Wright, J., concurring).

To alleviate the harshness produced by municipal immunity the courts have resorted to assigning a dual character to these corporations. On the one hand, they are considered subdivisions of the State endowed with governmental powers and charged with governmental functions and responsibilities. On the other hand, they are considered as corporate bodies capable of much the same acts as private corporations with similar special interests and relations. Insofar as the municipalities exercise a governmental function they are held immune from liability for their torts. When acting in their corporate or proprietary capacity they are liable for their torts under the same principles applied to private corporations. Edgerly v. Concord, 62 N.H. 8 (1882); Reynolds v. Nashua, 93 N.H. 28, 35 A.2d 194 (1943); W. Prosser, Law of Torts § 131, at 977 (4th ed. 1971).

'The present legal doctrines which purport to define the area within which the municipality shall make recompense to the individual harmed are inadequate . . .. (T)hey fail to achieve even an approximate degree of consistency in application because the distinction between governmental and proprietary function is not founded upon any inherent quality of the various activities, but rather is generally used as a means of expressing a conclusion that immunity or liability should result in a particular situation.' Williams v. City of Detroit, 364 Mich. 231, 254, 111 N.W.2d 1, 17 (1961) quoting, Smith, Municipal Tort Liability, 48 Mich.L.Rev. 41, 56 (1950) 'The doctrine has been amended and eroded until the most that remains is an abstract and confusing principle which finds literally no continuity between jurisdictions.' Campbell v. State, 284 N.E.2d 733, 734 (1nd. 1972). 'It has been said that the rules which courts have sought to establish in solving this problem are as logical as those governing French irregular verbs.' W. Prosser, Law of Torts § 131, at 979 (4th ed. 1971).

The fact that a municipality is not a profit-making venture and that it would be improper to divert municipal funds to the payment of tort claims are not convincing arguments in support of municipal immunity. These same considerations have been used as a basis for the immunity of charitable corporations. President And Dir. of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810, 815 (1942); W. Prosser, Law of Torts § 133, at 993-96 (4th ed. 1971). New Hampshire has never applied charitable immunity. Hewett v. Association, 73 N.H. 556, 563, 64 A. 190, 193 (1900); Welch v. Hospital, 90 N.H. 337, 9 A.2d 761 (1940). In recent years there has been 'a deluge of decisions that there is no immunity . . . and that a charity is liable for its torts to the same extent as any other defendant.' W. Prosser, supra at 996. The many charitable corporations, hospitals and others, which have operated successfully for many years to the benefit of the citizens of this State are strong evidence that the abolition of immunity would not violate municipal purposes or produce the catastrophic results predicted by its proponents.

It is appropriate to point out at this juncture that municipal corporations are now and have been for many years liable in torts for their proprietary activities. Allen v. Hampton, 107 N.H. 377, 222 A.2d 833 (1966). When so acting in their corporate capacity, their liability for torts is tested by the same principles applied to private corporations. Gates v. Milan, 76 N.H. 135, 136, 80 A. 39, 40 (1911); Wadleigh v. Manchester, 100 N.H. 277, 278, 123 A.2d 831, 832 (1956). Furthermore, municipalities are presently and have been for a long time held liable by courts for negligently invading an adjoining owner's property or for creating a nuisance even while they are engaging in a governmental function. Webb v. Rye, 108 N.H. 147, 150, 230 A.2d 223, 226 (1967); see 72 Mich.L.Rev., 187, 238-49 (1973). The legislature has also imposed municipal responsibility for torts while proforming purely governmental functions. RSA 247:17 makes municipalities liable for personal or property damage resulting from travel on a bridge, culvert, sluiceway or dangerous embankments of which notice of insufficiency has been given. RSA 412:3 provides for a waiver of immunity up to the limit of insurance purchased by a city, town, and other units to cover damages resulting from performance of governmental functions. Villars v. Portsmouth, 100 N.H. 453, 129 A.2d 914 (1957).

In Gossler v. Manchester, 107 N.H. 310, 311, 221 A.2d 242, 243 (1966), this court made the following observation: '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.' However, a majority of the court then held: 'Whether contemporary expansions of the field of governmental activities demand a corresponding expansion of the...

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