Sousa v. State, s. 6923

• Citation: 115 N.H. 340,341 A.2d 282
• Decision Date: 30 June 1975
• Docket Number: 7041,Nos. 6923,s. 6923
• Parties: John SOUSA v. STATE of New Hampshire. Joseph EVANS v. STATE of New Hampshire.
• Court: Supreme Court of New Hampshire

Page 282

341 A.2d 282 115 N.H. 340 John SOUSA
v.
STATE of New Hampshire.
Joseph EVANS
v.
STATE of New Hampshire. Nos. 6923, 7041. Supreme Court of New Hampshire. June 30, 1975.

Page 283

[115 N.H. 341] Deachman & Gruber and David S. Osman, Plymouth (Mr. Osman orally), for John Sousa.

Nixon, Christy & Tessier and John E. Peltonen, Manchester (Mr. Peltonen orally), for Joseph Evans.

Warren B. Rudman, Atty. Gen., and John C. Boeckeler, Asst. Atty. Gen. (Mr. Boeckeler orally), for the State.

LAMPRON, Justice.

Actions by John Sousa and Joseph Evans, driver and passenger in a tractor-trailer truck, to recover damages for the injuries they sustained when the State-owned-and-maintained bridge over the Gale River on route 117 in Franconia collapsed while they were driving over it. Plaintiffs allege that their injuries were caused by the negligent failure of the State to properly maintain the bridge, to keep it in proper repair, and to post warning signs of load limitation. The State filed motions to dismiss these actions on the ground of sovereign immunity. The motion in the Sousa case was granted by Mullavey, J., and the motion in the Evans case by Johnson, J. All questions of law raised by the plaintiffs' exceptions were [115 N.H. 342] reserved and transferred. We are asked by the plaintiffs to reconsider and abolish the existing immunity of the State from liability for such accidents.

The doctrine of sovereign immunity is deeply entrenched in this jurisdiction. Krzysztalowski v. Fortin, 108 N.H. 187, 188, 230 A.2d 750, 751 (1967). State immunity is broader than municipal immunity which this court has recently abolished in Merrill v. Manchester, 114 N.H. 722, 332 A.2d 378 (1974). See Opinion of the Justices, 101 N.H. 546, 548, 134 A.2d 279, 281 (1957). In addition to having immunity from liability for torts, which municipal corporations previously enjoyed as to certain torts, the State is also immune from suit in its courts without its consent, a privilege cities and towns never had. Bow v. Plummer, 79 N.H. 23, 104 A. 35 (1918); Rhobidas v. Concord, 70 N.H. 90, 114, 47 A. 82, 86 (1899); RSA 31:1.

Page 284

In many States the rule that a State cannot be sued without its consent is written into its constitution which either prohibits the giving of consent, or provides that the legislature will direct the manner, courts, and cases in which suits can be brought. Hutchinson v. Board of Trustees, 288 Ala. 20, 256 So.2d 281 (1971); Blair v. Anderson, Del., 325 A.2d 94, 96 (1974); Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973); see Restatement (Second) of Torts § 895A, Special Note 12-19 (Tent. Draft No. 19, 1973). In other jurisdictions, including our own, the State's immunity from suit is traced back to the immunity of the British Crown carried over to the States by the courts. Id. § 895B, Comment a; see Bow v. Plummer, 79 N.H. 23, 104 A. 35 (1918); 2 F. Harper & F. James, The Law of Torts § 29.2, at 1609 (1956).

The State's immunity for torts, also said to be a carry-over from the British Crown, is generally recognized to be of judicial origin as was municipal immunity. Gossler v. Manchester, 107 N.H. 310, 311, 221 A.2d 242, 243 (1966); Muskopf v. Corning Hosp. Dist., 55 Cal.2d 211, 218, 11 Cal.Rptr. 89, 359 P.2d 457, 461 (1961). In most cases, however, no distinction has been made as to whether a tort suit against the State was dismissed because of the State's immunity for torts or its immunity from suit without its consent. Krzysztalowski v. Fortin, 108 N.H. 187, 188, 230 A.2d 750, 751 (1967); cf. Holytz v. Milwaukee, 17 Wis.2d, 26, 115 N.W.2d 618 (1962).

The tort immunity of the State and that of cities and towns have had a different history in this State. In Gossler v. Manchester, 107 N.H. 310, 221 A.2d 242 (1966), when this court was asked to reconsider the doctrine of municipal immunity for torts, indications were given in a concurring and a dissenting opinion that this doctrine was on [115 N.H. 343] the wane and should be abolished in this State by legislation or judicial decision. See Hermer v. Dover, 106 N.H. 534, 536, 215 A.2d 693, 694 (1965). There is no such history with regard to state immunity from tort actions. Krzysztalowski v. Fortin, 108 N.H. 187, 189, 230 A.2d 750, 752 (1967). This results no doubt from the fact that in a tort suit against the State both its immunity against suit and that against torts are involved. Nonliability can be rested on the narrow ground that there are no means by which such an...