Sousa v. State

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

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.

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 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.

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 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 obligation for injuries received can be enforced or on the larger ground that no obligation arises in such cases. Opinion of the Justices, 81 N.H. 573, 577-78, 128 A. 812, 814-15 (1925); Restatement (Second) of Torts § 895B, Comment a at 24 (Tent. Draft No. 19, 1973). Hence the abolition of the tort immunity of cites and towns in Merrill v. Manchester, 114 N.H. 722, 332 A.2d 378 (1974), which do not have immunity from suit without consent, does not mandate that recovery for torts be allowed against the State.

Plaintiffs argue, however, that abolishment of this immunity is mandated by article 14, part I of our constitution. It reads in pertinent part as follows: 'Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character . . . conformably to the laws.' The decision in Merrill v. Manchester was not based on this ground. We indicated in Opinion of the Justices, 113 N.H. 205, 210, 304 A.2d 881, 885 (1973), that these rights are necessarily relative. 'As indicated in article 14 the remedies provided are to be 'conformably to the laws.' This means the rules of statutory and common law applicable at the time the injury is sustained.' Id.; Pinnick v. Cleary, 360 Mass. 1, --, 271 N.E.2d 592, 599 (1971). If article 14 were to be interpreted as urged by the plaintiffs, contributory or comparagle negligence, statutes of limitations, or other defenses which would prevent an injured plaintiff from recovering for his injuries against an individual defendant or the State would be unconstitutional. McCoy v Kenosha County, 195 Wis. 273, 218 N.W. 348 (1928); see Annot., 57 A.L.R. 419 (1928).

Plaintiffs' actions are based on a negligent act of agents of the State and not on an appropriation of their property. Gilman v. Concord,89 N.H. 182, 186, 195 A. 672, 674-75 (1937). Hence the defense of state immunity is not in violation of State and Federal constitutional provisions that a man's property is not to be taken by eminent domain without just compensation being awarded. See N. H. Water Resources Board v. Pera, 108 N.H. 18, 226 A.2d 774 (1967); Angelle v. State, 212 La. 1069, 34 So.2d 321 (1948); Annot., 2 A.L.R.2d 677, 707 (1948). Nor does it constitute a violation of plaintiffs' rights to equal protection as all those who are similarly situated are similarly treated. See Belkner v. Preston,115 N.H. --, --, 332 A.2d 168, 170 (1975); Krause v. State, 31 Ohio St.2d 132, 145-46, 285 N.E.2d 736, 744-45 (1972. In short, we hold that there is no constitutional provision which confers on the plaintiffs a right to sue and hold the State liable for a tort. Cords v. State, 62 Wis.2d 42, 51, 214 N.W.2d 405, 410 (1974).

It is not contested that the State may waive its immunities and permits suits to be brought and recovery obtained by plaintiffs injured by the negligence of its agents. RSA 412:3; see Hermer v. Dover, 106 N.H. 534, 537, 215 A.2d 693, 694 (1966); W. Prosser, Law of Torts § 131, at 975 (4th ed. 1971). '(A)s this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted. . . .' Wooster v. Plymouth, 62 N.H. 193, 204 (1882).

The State has waived its immunities in many instances. It has permitted suits to be brought and judgments entered against it in actions founded upon any express or implied contract. RSA 491:8. The Governor and Council have been authorized to pay claims against the State arising out of accidents occasioned by the activities of the National Guard....