Tarbell Adm'R, Inc. v. City of Concord

Decision Date12 September 2008
Docket NumberNo. 2008-025.,2008-025.
PartiesTARBELL ADMINISTRATOR, INC., Trustee of the Tarbell Family Revocable Trust of 2003 v. CITY OF CONCORD.
CourtNew Hampshire Supreme Court

Ransmeier & Spellman Professional Corporation, of Concord (Charles P. Bauer and John T. Alexander on the brief, and Mr. Alexander orally), for the defendant.


The plaintiff, Tarbell Administrator, Inc., as trustee of the Tarbell Family Revocable Trust (Tarbell), appeals an order of the Trial Court (Conboy, J.) granting summary judgment in favor of the defendant, City of Concord (City). We hold that the doctrine of discretionary function immunity bars Tarbell's negligence claims alleging that the City failed to properly construct a dam and failed to properly control and regulate the water level, but does not preclude Tarbell's remaining claims. Accordingly, we affirm in part, reverse in part, and remand.

The record supports the following relevant facts. Tarbell owns a twenty-one unit apartment building on North State Street in Concord (the property). Rattlesnake Brook flows under and through the property by a channel and exits through a culvert.

Since 1872, Penacook Lake has served as a municipal water supply source for the City. The City manages and operates a water treatment facility adjacent to the lake. An earthen dam and reservoir located between the lake and Rattlesnake Brook draws water into the treatment facility. Removable flashboards on the top of the dam allow the City to control the level of water in the lake. If the lake's water level exceeds capacity, an emergency spillway provides an outlet for the excess water and prevents a breach of the dam. Water from the emergency spillway flows directly into Rattlesnake Brook. If the lake's water level becomes too low to meet the city's needs, the City pumps water into the lake from the Contoocook River.

In 2003, after experiencing several years of drought-like conditions, the City hired an expert to conduct a Water Supply Sustainable Yield & Drought Management Study. The expert determined a target elevation level for the lake and created a Reservoir Management Model (RMM) to guide the City in deciding when it should pump water from the river to maintain an adequate water supply. In December 2004, the Concord City Council adopted and implemented the RMM.

The City followed the RMM guidelines for approximately one year. In October 2005, the city experienced unusually heavy rainfalls. At the time, pursuant to the RMM, the city was scheduled to pump water from the river into the lake in January 2006. However, because the lake was at an unseasonably high level, on December 29, 2005, the superintendent of the Water Treatment Plant, James Donison, again consulted the expert. On January 6, 2006, the expert advised the City to deviate from the RMM and refrain from pumping water into the lake that month. The City followed this advice.

On January 17, 2006, the expert advised the City that "special attention" needed to be given to: (1) assessing whether total or partial removal of the flashboards was necessary "in anticipation of a large runoff event"; (2) inspecting the downstream channel "to review ... what may create a hazard just in case a significant outflow were to occur" since the channel "may tend to become a dumping ground for debris etc. when flow does not typically occur"; and (3) inspecting the culverts to "confirm their integrity." At that time, the level of the lake was 185 feet, one foot above the target level.

According to the affidavits of Donison and Philip Bodeau, the deputy director of the City's General Services Department during the time in question, the City decided not to remove the boards after analyzing how to best strike a balance between maintaining the target lake level, the anticipated peak summer water demands, the potential lack of rainfall conditions which would lower the lake level, and protecting downstream property owners. Additionally,

In reaching the decision, [the City] considered the following drawbacks to removing the boards: (a) the loss of large amounts of a valuable resource (i.e., City water); (b) the fact that when the boards were removed, water certainly would have rushed down the spillway; (c) the fact that there was no way to predict when the boards could be replaced because the spillway would have to be dry before this occurred; ... (d) if the boards were removed and left out for an unspecified period of time, this would not have prevented a large run-off event during unusually heavy rains[; and (e)] the expensive costs of pumping water from the [river] to the [lake] in the event lack of rainfall occurred and the lake level was low.

In May 2006, New Hampshire endured a record amount of rainfall. Consequently, the lake's water spilled over the emergency spillway and into Rattlesnake Brook, resulting in severe water damage to the property. Tarbell subsequently filed this action against the City, asserting claims of: (1) negligence for failure to properly construct the dam (count I); (2) negligence for failure to properly maintain the drainage system (count II); (3) negligence for failure to properly control and regulate water (count III); (4) trespass (count IV); and (5) nuisance (count V).

The City moved for summary judgment, arguing that it was entitled to discretionary function immunity for its decisions regarding the proper management of the lake, water treatment plant, and spillway. On November 13, 2007, the trial court issued an order, in which it found:

[T]he decisions to refrain from pumping water and to leave the flashboards in place do not reflect a lack of deliberation or discretion. Rather, these decisions show that a concentrated effort was made to best protect and contain the City's water supply.... [The affidavits submitted by the City] indicate that city officials considered multiple economic and social factors with regard to the decisions made concerning the pumping of water and the potential removal of the flashboards.... In sum, city officials considered and weighed alternatives, exercised official judgment and discretion, and made basic policy decisions concerning water supply issues. The plaintiff's alleged injuries arise from those decisions.

Based upon these findings, the trial court ruled that the City was entitled to discretionary function immunity and granted the City's motion for summary judgment on all counts. After the trial court denied its motion for reconsideration, Tarbell filed the instant appeal. On appeal, Tarbell argues that the trial court erred in ruling that the City was entitled to discretionary function immunity as to all counts in the complaint.

In reviewing a 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. Carter v. Concord Gen. Mut. Ins. Co., 155 N.H. 515, 517, 924 A.2d 411 (2007). If our review of the evidence does not reveal any genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the trial court's decision. Id. We review the trial court's application of the law to the facts de novo. Id.

Tarbell argues first that the trial court erred in applying discretionary function immunity to count III, which alleges that the City negligently invaded its property by "not properly releas[ing] the waters of Penacook Lake." Tarbell asserts that the court was required to analyze its claim under Cannata v. Town of Deerfield, 132 N.H. 235, 566 A.2d 162 (1989), which, Tarbell further contends, held that a municipality is always liable if it, "by the use of the land which it holds only for public governmental purposes, ... negligently invades an adjoining owner's property rights." Cannata, 132 N.H. at 241, 566 A.2d 162.

Resolution of this argument requires a brief review of our municipal immunity jurisprudence. Initially, the doctrine of municipal immunity was a creature of the judiciary, City of Dover v. Imperial Cas. & Indemn. Co., 133 N.H. 109, 112, 575 A.2d 1280 (1990), and was premised upon the notion that "`[i]t is better that an individual should sustain an injury than that the public should suffer an inconvenience,'" Gossler v. Manchester, 107 N.H. 310, 312, 221 A.2d 242 (1966) (quoting Russell v. Men of Devon, 2 Term Rep. 667, 100 Eng. Rep. 359 (1789)). Historically, it insulated municipalities "from liability for torts arising out of negligence in the performance of governmental functions." Opinion of the Justices, 101 N.H. 546, 548, 134 A.2d 279 (1957). However, to alleviate the harshness of the results produced by municipal immunity, our cases distinguished between municipal functions that were "governmental with immunity on the one hand, and proprietary with liability on the other hand." Gossler, 107 N.H. at 315, 221 A.2d 242 (Kenison, J., dissenting). In practice, this often artificial distinction produced results that were not only "confused, inconsistent and difficult," id., but absurd, see Gilman v. Concord, 89 N.H. 182, 185-87, 195 A. 672 (1937).

The confusion engendered by the rules for applying municipal immunity, as well as concerns over the continued validity of the doctrine's underlying premise, caused us to acknowledge the persuasiveness of arguments for the doctrine's abrogation in Gossler, 107 N.H. at 314, 221 A.2d 242. In that case, we observed that "[t]he 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." Id. at 311, 221 A.2d 242. However, although we noted that "the complexities of modern government...

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