State v. Brosseau

• Decision Date: 01 December 1983
• Docket Number: 82-365 and 82-465,Nos. 82-064,82-277,s. 82-064
• Parties: The STATE of New Hampshire v. Donald BROSSEAU, Administrator of the Estate of Adrian Brosseau. The STATE of New Hampshire v. Adrienne M. ZAPPIA, Administratrix of the Estate of John M. Zappia. Robert GORMAN et al. v. MANCHESTER MENTAL HEALTH CENTER et al. Gloria WETHERBEE, Individually and as Administratrix of the Estate of Carla Rose Edwards v. Jack E. MELTON, Superintendent and Chief Administrator, Laconia State School and Training Center, et al.
• Court: New Hampshire Supreme Court

Page 869

470 A.2d 869

124 N.H. 184

The STATE of New Hampshire v. Donald BROSSEAU, Administrator of the Estate of Adrian Brosseau.

The STATE of New Hampshire v. Adrienne M. ZAPPIA, Administratrix of the Estate of John M. Zappia.

Robert GORMAN et al. v. MANCHESTER MENTAL HEALTH CENTER et al.

Gloria WETHERBEE, Individually and as Administratrix of the Estate of Carla Rose Edwards v. Jack E. MELTON, Superintendent and Chief Administrator, Laconia State School and Training Center, et al.

Nos. 82-064, 82-277, 82-365 and 82-465.

Supreme Court of New Hampshire.

Dec. 1, 1983.

Gregory H. Smith, Atty. Gen. (Peter T. Foley, Concord, on brief and orally in Nos. 82-064, 82-277 and 82-365 and Loretta S. Platt, Asst. Atty. Gen., on brief in No. 82-465), for the State.

Bossie, Kelly & Hodes P.A., Manchester (Laurence E. Kelly, Manchester, on brief, and Donald L. Wyatt, Jr., Wolfeboro, orally), for defendant Donald Brosseau.

Ronald K. Lospennato and M. Elaine Beauchesne, Concord, on brief in No. 82-064 for Developmental Disabilities Advocacy Center, Inc., as amicus curiae.

Brown & Nixon P.A., Manchester (Edward W. Stewart, Jr., Manchester, on brief and orally), for defendant Adrienne M. Zappia.

Dorner & Parnell, Londonderry, and Marien E. Evans, Boston, Mass. (William B. Parnell, Londonderry, orally and on brief), for plaintiffs Robert Gorman & a.

Boyer & Kinghorn, Clifford R. Kinghorn, Jr., Nashua, on brief for plaintiff Gloria Wetherbee.

KING, Chief Justice (with whom BROCK, Justice, concurs).

Chapter 556 of the New Hampshire Laws of 1973 (codified at RSA chapter 135-B) was enacted, in part, to guarantee every civilly committed mentally ill patient "a right to adequate and humane treatment." RSA 135-B:43. In 1975, the New Hampshire Legislature extended this right to "[e]very developmentally impaired client" treated by the New Hampshire Division of Mental Health. RSA 171-A:13 (Supp.1981). Our inquiry in the present appeals is limited to two questions: (1) Did the legislature in enacting RSA 135-B:43 and RSA 171-A:13 (Supp.1981) impliedly waive sovereign immunity as to statutory and tort claims brought by institutionalized patients against the State or State agents for money damages? (2) If so, is RSA 171-A:13 (Supp.1981) intended to waive the State's eleventh amendment immunity from suit by its citizens in federal court? For the reasons that follow, we answer question one "yes" and question two "no."

We have consolidated four cases involving mentally ill, mentally retarded and physically disabled patients who allegedly were injured while institutionalized at civil mental health facilities operated by the State. Claims for compensatory damages were brought by or on behalf of these patients against the State and State agents, alleging that the negligent psychiatric and medical treatment provided the patients in State facilities was the proximate cause of irreparable injury.

In two of the consolidated suits, the defendants brought counterclaims for the wrongful death of their decedents in response to the actions filed by the State, pursuant to RSA 126-A:47 (Supp.1981), to recover expenses for the board and treatment provided these two decedents while patients at the New Hampshire Hospital. In the first case, No. 82-064, the deceased, Adrian Brosseau, is alleged to have been suicidal during the period he was involuntarily committed to the State hospital. Brosseau's estate argues that employees of the State hospital were negligent in discharging Brosseau and that their negligence was the proximate cause of his subsequent suicide. In response to the State suit to recover the cost of treating the deceased, Brosseau's estate filed a counterclaim for wrongful death, seeking damages.

The Superior Court (Pappagianis, J.) granted the State's motion to dismiss the counterclaim, ruling that the doctrine of sovereign immunity barred an affirmative recovery. But the court also held that the estate's claim could be asserted as a defense in a plea of recoupment to defeat or diminish the State's reimbursement claim. The trial resulted in a verdict for the State, which was offset by the estate's recoupment claim. This is an appeal from the decision of the trial judge denying the estate's motion to set aside the verdict.

The second case, No. 82-277, grew out of the involuntary civil commitment of John M. Zappia to the New Hampshire Hospital. It is alleged that State hospital employees physically abused Zappia while he was strapped to a bed and then injected him with an improvident dosage of a tranquilizer which ultimately led to his heart attack and subsequent death. In response to the State's action to recover hospital expenses, Zappia's estate counterclaimed seeking money damages, alleging that the negligent care and treatment of the deceased proximately caused his death. The estate also sought recovery for violation of the decedent's federal constitutional rights pursuant to 42 U.S.C. § 1983 (1979) and for breach of an implied contract of care, treatment and maintenance. The Superior Court (Souter, J.) approved the recommendation of the Master (Frank B. Clancy, Esq.) that all three counts of the counterclaim be dismissed on the ground of sovereign immunity. The decedent's estate then filed an interlocutory appeal to this court. See Sup.Ct.R. 8.

In case No. 82-365 the plaintiff alleged that the negligent failure of State employees to timely diagnose a brain tumor in an eleven-year-old patient of the New Hampshire Hospital proximately caused her permanent blindness. The plaintiff filed suit seeking damages against the Manchester Mental Health Center, two psychologists employed by the center, the State, and three State hospital employees, including a physician. The State and State employees named as defendants moved to dismiss the negligence claims on the basis of sovereign immunity. On the recommendation of the Master (Mayland H. Morse, Jr., Esq.) the Superior Court (Contas, J.) transferred to this court without ruling, pursuant to Supreme Court Rule 9, the question whether the State and its employees are insulated from suit by the doctrine of sovereign immunity.

In case No. 82-465, the final case consolidated for our review, the United States District Court for the District of New Hampshire (Devine, C.J.) certified the following questions to this court:

(1) "[Does] RSA 171-A:13 (Supp.1981) constitute a waiver of sovereign immunity as to state statutory and common law claims in an action for damages brought by the administratrix of the estate of a resident of Laconia State School;"

(2) "[If so,] is the statute intended to constitute a waiver of the state's immunity from suit in Federal Court on the state law claims and on the related federal civil rights actions?"

This case arose from the alleged negligent treatment and subsequent death of Carla Rose Edwards, a seventeen-year-old girl, at the Laconia State School and Training Center (Laconia School). Edwards was a developmentally impaired person, as defined by RSA 171-A:2, V (Supp.1981), who was institutionalized at the Laconia School. The complaint filed in federal district court by Edwards' mother, individually and as administratrix of Edwards' estate, alleged that Edwards' death was caused by her choking on vomit that she inhaled due to her physical disability. It alleged that the proximate cause of Edwards' death was the negligent failure of the employees of the Laconia School to adequately treat her, and the administratrix sought compensatory damages.

The plaintiff brought section 1983 claims against named defendants Jack E. Melton, the Laconia School Superintendent, and Thomas M. Ruffle, M.D., a pediatrician at the Laconia School. In addition, the plaintiff commenced pendent claims based on State law against the defendants for negligence, wrongful death and violations of the statutory right to "adequate and humane habilitation and treatment" of developmentally impaired persons conferred by RSA 171-A:13 (Supp.1981). The State, on behalf of the defendant Melton, filed motions to dismiss the claims against Melton in his official capacity based on the eleventh amendment to the United States Constitution. The State also moved to dismiss the State claims on the ground of sovereign immunity. Consideration of these motions to dismiss was deferred by the United States District Court pending resolution of the above-certified questions.

In our opinion, it is not necessary that we reach the question of whether the doctrine of sovereign immunity, as incorporated in RSA 99-D:1 (Supp.1981), is constitutional in order to resolve the appeals presently before us. We have held that the State may waive its immunity and permit suits to be brought by parties injured by the negligence of State agents. See Sousa v. State, 115 N.H. 340, 344, 341 A.2d 282, 285 (1975). A waiver occurs when "the legislature has provided for it by statute either expressly or by reasonable implication." Chasse v. Banas, 119 N.H. 93, 96, 399 A.2d 608, 610 (1979) (quoting Public Service Co. v. State, 102 N.H. 54, 56, 149 A.2d 874, 876 (1959)). In RSA 99-D:1 (Supp.1981), the New Hampshire Legislature itself recognized that it could waive sovereign immunity. RSA 99-D:1 (Supp.1981) provides, in pertinent part, that sovereign immunity is the law of the State "except as otherwise provided by statute."

This court has strictly construed statutory waivers of sovereign immunity. Chasse v. Banas supra. However, where the clear intent of a statute is to confer a right to redress injuries proximately caused by the negligent actions of certain State agents, we have not hesitated to construe that statute to allow recovery of damages. Id.

We have also recognized that "[t]he existence of a statutory right implies the existence of all necessary and appropriate remedies." Chasse v. Banas supra (quoting Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239, 90 S.Ct. 400, 405, 24 L.Ed.2d 386 (1969)). Where a statutory...