Tilton v. Dougherty

• Decision Date: 27 March 1985
• Docket Number: No. 83-336,83-336
• Citation: 126 N.H. 294,493 A.2d 442
• Parties: , 52 A.L.R.4th 1083 Russell F. TILTON et al. v. John D. DOUGHERTY et al.
• Court: New Hampshire Supreme Court

Page 442

493 A.2d 442

126 N.H. 294, 52 A.L.R.4th 1083

Russell F. TILTON et al. v. John D. DOUGHERTY et al.

No. 83-336.

Supreme Court of New Hampshire.

March 27, 1985.

Orr & Reno P.A., Concord (Richard B. Couser, Concord, on the brief and orally), for plaintiffs.

Gregory H. Smith, Atty. Gen. (James A. Sweeney, on the brief, and Bruce E. Mohl, Asst. Atty. Gen., orally), for defendants.

BROCK, Justice.

The defendants in this case are an attending physician, a commander of a dispensary, and a medical technician, all of whom are members of the New Hampshire Air National Guard. The plaintiffs brought suit in tort in October 1980 alleging negligence in the performance of a routine flight physical examination performed or assisted by the defendants. All parties agree that at the time of the alleged injury the defendants were acting in their capacities as members of the National Guard, and within the official scope of their normal duties. The issues presented are whether the common-law doctrine of sovereign immunity, RSA chapter 99-D (Supp.1983), or RSA 110-A:77, I (repealed by Laws 1981, 434:2) (superseded by RSA chapter 110-B (Supp.1983)) bar this cause of action. We hold that neither of them does.

We note initially that the status of the plaintiff, Russell F. Tilton, while undergoing the physical examination, is in dispute. Tilton is both a civilian technician with the United States Army National Guard and a Lieutenant Colonel in the New Hampshire Army National Guard. For each position, Tilton was required to be a qualified pilot on flying status, and maintenance of that status requires an annual physical examination. If Tilton was injured while in his status as a State employee, the defendants, also State employees, may raise other defenses which are not pertinent if Tilton was injured while in federal civilian status.

The recommendation of the Master (Walter L. Murphy, Esq.) that the defendants' motion to dismiss be granted on the ground of sovereign immunity was approved by the Superior Court (Dunn, J.) on July 19, 1983. On an appeal from the granting of a motion to dismiss, we take as true all facts well pleaded, and construe all reasonable inferences therefrom in the light most favorable to the non-moving party. City of Berlin v. State, 124 N.H. 627, 630, 474 A.2d 1025, 1027 (1984). Thus, for this appeal we assume as true the plaintiffs' allegation that Tilton was injured while in federal civilian status.

We also assume as true the following pleaded allegations: On September 9, 1978, Tilton underwent a routine flight physical examination required to maintain his pilot's license for both civilian and military purposes. The defendant Dr. John D. Dougherty conducted the physical examination. In the course of the physical, Dougherty injected a chemical, Hemoccult, into Tilton's eye, causing damage to the eye. Hemoccult is a caustic solution, combining hydrogen peroxide and alcohol, and is intended to be used for the preservation or examination of stool specimens. Dougherty injected Hemoccult rather than the chemical Ophthetic into Tilton's eye, due either to the mislabeling of the bottles or to neglect in the storing and the use of the chemicals. Dougherty failed to observe the injury promptly, despite Tilton's complaint of pain, and failed to take prompt remedial measures upon discovery of the injury.

The plaintiffs further allege that the defendant Thomas P. Habif, commander of the dispensary at which the physical examination was taken, was negligent in his command, control and supervision of the dispensary and dispensary personnel, and that the defendant Russell E. Hunter, a medical technician, was negligent in his preparation of the examining room for Tilton's physical examination.

The pleadings conclude that the harm which Tilton has suffered as a result of the injury includes severe and permanent damage to his eyesight, the inability to pass a flight physical for piloting an aircraft for military or civilian purposes, and lost employment with both the United States and the New Hampshire Army National Guards.

The plaintiff Florette R. Tilton, the wife of Russell F. Tilton, has alleged the same facts against each defendant, and claims personal injuries, as well as the loss of consortium and loss of the services, society and companionship of her husband. The plaintiffs have also named Allergan Pharmaceuticals, Inc., as a defendant, but the issue on this appeal does not involve that defendant.

The defendants argue that the actions involved in this appeal have been brought against State employees in their capacities as members of the New Hampshire National Guard and as a result of allegedly negligent conduct within the scope of their employment. The defendants contend that the actions are therefore in essence actions against the State and barred by sovereign immunity. The defendants are more than mere nominal defendants, however, who are being sued due to their status as agents of the State and for actions in which the State is the real alleged tortfeasor. It is clear from the pleadings taken as a whole that the Tiltons are suing the defendants for their personal and individual acts of negligence.

Although the parties have used the term "sovereign immunity" to describe the defense that has been raised, it would be more accurate to describe it as a plea of official immunity. Sovereign immunity in the strict sense may be claimed by the State itself. The doctrine comprises two separate rules, which traditionally have shielded the State. The first is that the State is immune from suit in its own courts without its consent. E.g., Sousa v. State, 115 N.H. 340, 342, 341 A.2d 282, 283 (1975). The second is that the State is immune from liability for torts committed by its officers and employees. Id.

Official immunity is considered a distinct doctrine that shields State officials and employees themselves. See W. Prosser, Handbook of the Law of Torts § 132 (4th ed. 1971). In this State it has been described as a derivative or extension of the doctrine of sovereign immunity. See Krzysztalowski v. Fortin, 108 N.H. 187, 188, 230 A.2d 750, 751-52 (1967) (quoting N.H. Judicial Council, Fourth Biennial Report 34 (1952)); RSA 99-D:1 (Supp.1983).

Official immunity, like sovereign immunity itself, rested on a common law basis in this State until the enactment in 1978 of RSA 99-D:1, Laws 1978, 43:1, which adopted both doctrines "as the law of the state," except where a statute might provide an exception. Id. The contents and scope of the doctrines as adopted by the legislature are not described in the statute itself, and we are aware of no legislative history indicating the legislature's assumptions. It is reasonable to infer, therefore, that when the legislature placed the doctrines of sovereign and official immunity on a statutory basis it intended to adopt the common law of the State as it existed at the enactment of the statute in 1978. See Niemi v. Railroad, 87 N.H. 1, 10, 173 A. 361, 366 (1934).

The scope of the State's sovereign immunity in the area of tort liability was clear under the State's common law, and is therefore clear under RSA chapter 99-D (Supp.1983). Since sovereign immunity from tort liability was not limited to the exercise of governmental, as distinguished from "proprietary" functions, the immunity was virtually plenary. See Niles v. Healy, 115 N.H. 370, 372, 343 A.2d 226, 227-28 (1975); Krzysztalowski v. Fortin, supra 108 N.H. at 189, 230 A.2d at 752. Cf. Merrill v. Manchester, 114 N.H. 722, 725, 726, 332 A.2d 378, 381 (1974) (municipalities' immunity from tort liability depends on nature of function).

The scope of official immunity from tort liability was less clear. In part, this was because the term "official immunity" was used to refer to two separate doctrines. The first such doctrine was that a State official sued in his official capacity was treated as identical with the State itself, for purposes of immunity. Sargent v. Little, 72 N.H. 555, 556, 58 A. 44, 44 (1904). When "official immunity" referred to this doctrine, such immunity was literally derivative from sovereign immunity and coextensive with it. See Krzysztalowski v. Fortin, 108 N.H. at 188, 230 A.2d at 751-52; Bow v. Plummer, 79 N.H. 23, 24-25, 104 A. 35, 35-36 (1918); N.H. Judicial Council, Fourth Biennial Report, supra. Official immunity in this sense is not involved in the present case. The defendants have not been sued in their official capacities, but rather have been sued personally for money damages, for negligence arising out of performance of their official duties.

The second doctrine of official immunity was that officials were to some degree immune from liability when sued personally for damages for torts committed while acting within the scope of their official duties. E.g., Sweeney v. Young, 82 N.H. 159, 131 A. 155 (1925) (officers acting within their jurisdiction in judicial or quasi judicial capacity are immune from tort liability). It is "official immunity" in this sense that the defendants in this case have raised as a defense in their motions to dismiss. Such immunity does not rest, however, on the same principles that supported sovereign immunity. Immunity from suit in the State's own courts would not apply, for example, to an individual acting in a judicial or quasi judicial capacity. See Williams v. Weaver et al, 75 N.Y. 30, 33-34 (1878) (if tax assessors act without jurisdiction, there is no immunity), aff'd, 10 Otto 547, 100 U.S. 547, 25 L.Ed. 708 (1879) (cited in Boody v. Watson, 64 N.H. 162, 165, 9 A. 794, 797 (1886)). For this reason it was not possible at common law, and it is not possible under RSA chapter 99-D (Supp.1983), simply to apply "sovereign immunity" to defeat a claim for damages brought against a State official or employee, although there are dicta in some cases that could suggest otherwise. See, e.g., Niles v. Healy supra; Krzysztalowski v. Fortin supra.

Since there was no...