2006-481, SARAH EVERITT v. GENERAL ELECTRIC COMPANY

No. 2006-481 Hillsborough-northern judicial district

, of Manchester (Donald E. Gardner, of Concord (Charles P. Bauer & a., of Manchester (Gordon A. Rehnborg, Jr. Thomas Craig, PA

Citro. Ann Dempsey on the brief, and Mr. Rehnborg orally), for defendant Jeremiah Wiggin & Nourie, P.A. and Mary page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home Gaskell. reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 brief, and Mr. Bauer orally), for defendants Town of Hooksett and Owen Ransmeier & Spellman, P.C. Opinion Issued: September 21, 2007 on the

Donald L. Smith on the brief, and Mr. Smith orally), for defendant Keith Lee. Devine, Millimet & Branch, P.A. and

the brief, and Mr. Woodbury orally), for the plaintiff.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as him into protective custody because of his disoriented state. p. 2 parking lot while operating his automobile and that the Hooksett police took

example, she asserts that two years before her accident, Citro hit a car in a

or access to information about Citro’s prior motor vehicle accidents. For

the Town and the police officers, Everitt also alleges that they had knowledge of from operating his motor vehicle on the day of the accident. With respect to unusual behavior, each defendant owed her a duty of care to prevent Citro

for GE and one of its employees. Everitt asserts that, because of Citro’s

Gaskell and Officer Lee. She later added as defendants the security company Everitt then sued GE, a GE supervisor, the Town of Hooksett, Lieutenant

insurance limits.

Citro settled prior to suit for the full amount of Citro’s automobile liability Everitt was a passenger, allegedly causing her significant injuries. Everitt and p.m., Citro was involved in a motor vehicle accident with the van in which

sobriety tests and determined that Citro should be released. At about 3:00

difficulty understanding the situation. As a result, the police conducted field also from the Hooksett Police Department, arrived. He observed that Citro had meet with the company nurse. During this conversation, Lieutenant Gaskell,

outside of the company gate. Citro told the officer that he was supposed to

responded to the call. When he arrived, he noticed Citro sitting in his vehicle

returned to GE. Hooksett Police were again contacted, and Officer Lee until the following Monday. Around 12:45 p.m. that day, however, Citro he was not supposed to be at the GE facility and agreed not to return there

a prior encounter and went to his home to speak with him. Citro admitted that

unless otherwise noted. See

10:45 a.m., but Citro had already left. Officer Lee was familiar with Citro from Hooksett Police Department. Lee, a Hooksett police officer, arrived at about work until Monday. When Citro failed to leave, GE security contacted the

The following facts are taken from the interlocutory appeal statement,

third-party claims against him. We affirm in part, reverse in part and remand.

reminded him that on the day before, he had been instructed not to return to

the plaintiff, Sarah Everitt, and the second denied Citro’s motion to dismiss the

Superior Court (Conboy Keith Lee, and third-party defendant Jeremiah Citro, from two rulings of the Saturday morning, November 1, 2003, he arrived at work, and his supervisor Citro was employed at the General Electric (GE) facility in Hooksett. On

summary judgment seeking immunity from the negligence claim brought by

brought by direct defendants, Town of Hooksett (Town), Owen Gaskell and

p. 3 RSA 507:7-h, we need not address the first question. Thus, we only consider

Because defendant Lee now concedes that his contribution claim is barred by

Does Nilsson v. Bierman

allegation that the settlement was not made in good faith?

provisions of RSA chapter 507 to work in concert to create “a unified and obtaining a full release from liability? in the litigation itself and incur the costs of litigation despite

litigation under a claim of contribution when there is no 3 preclude a settling tortfeasor from being brought into Does 507:7-h, Effect of Release or Covenant Not to Sue, an indispensable party, and that Nilsson v. Bierman contended that common law did not support including him in the litigation as apportionment of liability and contribution” in tort actions, designing several the jury verdict form, thereby requiring them to participate

review de

inquire: because he had entered into a valid settlement agreement with Everitt. He also Citro’s motion to dismiss him as a participating party in the litigation. They The legislature has enacted a “comprehensive statutory framework for The first two questions relate to whether the trial court properly denied party, as opposed to simply allowing them to be named on 568 (2006).

novo. See K & B Rock Crushing v. Town of Auburn II, 153 N.H. 566,

as a participating party. This inquiry constitutes a question of law, which we security company or its employee., a settling tortfeasor can be compelled to join litigation three, none of which pertains to defendants GE, the GE supervisor, GE’s

under RSA 507:7-h (1997), no contribution action could be filed against him third-party defendant. Citro moved to dismiss these claims, arguing that defendant to bring a settling tortfeasor into the litigation as a contending that he was an indispensable party who should be joined as a, 150 N.H. 393 (2003) allow a

subsequently certified five questions for interlocutory appeal. We accepted

and defendants Town and Lieutenant Gaskell filed a claim against Citro,

not permit the joinder of a settling party. The trial court denied the motion and Lieutenant Gaskell joined, arguing, inter , 150 N.H. 393 (2003), did Officer Lee moved for summary judgment, which the Town and

then brought a contribution action against Citro for his role in the accident, for the decision not to detain Citro. The trial court denied the motion. Lee discretionary function immunity and qualified immunity precluded any liability

p. 4 tortfeasor settled with the plaintiff before or after suit was filed) may be joined

tortfeasor who was immune from liability. DeBenedetto apportionment of fault against “non-parties,” a settling tortfeasor and a immune tortfeasors does not mean that a settling tortfeasor (whether that examined whether the trial court erred by instructing the jury to consider the

, 153 N.H. 793 (2006), a

from liability or otherwise [never sued.]” Id contributing to the occurrence giving rise to an action, including those immune parties to an action, including settling parties,” but incorporates “all parties

parties, former parties who have settled, tortfeasors who settled before suit and scope of the term “party” in the apportionment statute, RSA 507:7-e. We Permitting juries to allocate fault on the verdict form among current

omitted).

non-settling defendant. Nilsson ninety-nine percent of the apportionment purposes under RSA 507:7-e, the word ‘party’ refers not only to fault to the settling defendant and one percent to the including settling parties,” and affirmed the jury verdict that apportioned Following Nilsson, we upheld the trial court’s instruction noting that “for

decision issued after this interlocutory appeal was filed, we again reviewed the In DeBenedetto v. CLD Consulting Engineers

omitted).

under RSA 507:7-e, I(b), the term “party” refers to “parties to an action, RSA 507:7-e, I(a), (b) (1997). We held that for the purposes of apportionment

only for the damages attributable to him. liability shall be several and not joint and he shall be liable shall be less than 50 percent at fault, then that party’s the rules of joint and several liability, except that if any party (b) Enter judgment against each party liable on the basis of

proportionate fault of each of the parties; and contribution.” Nilsson and against each defendant in accordance with the comprehensive approach to comparative fault, apportionment of damages, and find, the amount of damages to be awarded to each claimant (a) Instruct the jury to determine, or if there is no jury shall

In all actions, the court shall:

That statutory provision states in pertinent part: before trial and to a non-settling party in accordance with RSA 507:7-e. Id. assess the percentage of fault attributable to a joint tortfeasor who settled were asked to decide whether the trial court properly instructed the jury to

p. 5 indispensable party. The interlocutory appeal question, however, is limited to

Defendant Lee joined in their argument, identifying Citro as a necessary and

common law practice regarding necessary and indispensable parties.

mere passing manner without further development, see

defendant pursuant to RSA 514:10 (2007), Superior Court Rule 27 and our the trial court properly exercised its discretion to retain Citro as a third-party also beyond the scope of the interlocutory appeal question, was asserted in a question presented. The defendants Town and Lieutenant Gaskell argue that protection and due process under our State Constitution. This argument is Town and Gaskell that joinder of Citro comports with their rights to equal 5

preserved for our review because they exceed the scope of the interlocutory

arguments. Further, we do not address the contention made by defendants

v. Marcoux, 149 N.H. 581, 592 (2003), and was not raised below.

We decline to address arguments raised by the defendants that were not

a party to the litigation. Thus, we decline to address the defendants’ additional dismiss him as an active litigant in the case.

cost is borne by an insurer, is not contemplated or permitted by Nilsson

tortfeasors would be borne by the litigant defendants. Id we expected that the burden of establishing fault on the part of “non-litigant” tortfeasors, even when some tortfeasors were not active litigants at trial, and

Accordingly, we hold that the trial court erred in denying Citro’s motion to litigant, requiring him to participate in and incur the cost of the litigation itself. Nilsson DeBenedetto or DeBenedetto to bring a settling tortfeasor into the case as an active DeBenedetto. Therefore, we conclude that a defendant is not permitted under

tortfeasor to participate actively in litigation, regardless of whether the defense fault to the settling tortfeasor who was not an active litigant. Id. Requiring a settling

attributable to the defendant and the settling non-litigant tortfeasor. Id questions, asked the jury to assess the percentage of fault, if any, that was anticipated that the jury or the court would need to apportion fault among joint consider it for fault apportionment purposes.” Id. (emphasis added). Thus, we fault must be supported by adequate evidence before a jury or court may an active litigant at trial. Nilsson easily shift fault under RSA 507:7-e; allegations of a non-litigant tortfeasor’s

, 153 N.H. at 804. Indeed, we noted that a defendant “may not

fault among joint tortfeasors, including those “otherwise not before the court.” Further, in DeBenedetto, we anticipated that jurors would apportion

394. We note that the jury returned a verdict assessing ninety-nine percent of

instructed the jury about apportioning fault and, in its special verdict

p. 6 consider the affidavits and other evidence, and all inferences properly drawn

immunity. When reviewing the denial of a motion for summary judgment, “we offered no other analysis or reasoning and did not separately address qualified defendants are entitled[,] as a matter of law[,] to municipal immunity.” It

ruled that it could not “find, under all the circumstances, that the Hooksett

In denying the defendants’ motion for summary judgment, the trial court

not to detain Citro.

reaches only Everitt’s claim of negligence premised upon the officers’ decision

appeal. Thus, our analysis regarding the defendants’ possible immunity

discipline for its police officers, this claim was not included in the interlocutory direct claim against the Town for failing to provide proper training and affords similar protection. At the outset, we note that while Everitt asserts a

individual police officers and/or the Town; and (2) whether qualified immunity

discretionary function immunity exception to municipal liability protects the This question incorporates two separate immunity inquiries: (1) whether the

Tilton v. Dougherty government entities and both rooted in the common law at their inception. immunity are distinct doctrines, both designed to protect particular

immunity and/or qualified immunity?

for injury allegedly caused by official conduct. Sovereign and municipal

immunity protects the State itself “from suit in its own courts without its Manchester, 114 N.H. 722, 727 (1974) (municipal immunity). Sovereign

detain Mr. Citro was a discretionary decision entitled to entitled to summary judgment because the decision not to statutory law to protect governmental entities and public officials from liability Various concepts of immunity exist under both common law and

584, 586 (2006). application of the law to the facts de novo. Belanger v. MMG Ins. Co., 153 N.H. (quotation omitted); see RSA 491:8-a, III (1997). We review the trial court’s

of material fact existed, and the moving party was entitled to judgment as a of Manchester, 155 N.H. __, __, 921 A.2d 393, 398 (2007). If “no genuine issue Were Officer Lee, Lt. Gaskell and/or the Town of Hooksett

appeal: We now turn to the third question posed in the defendants’ interlocutory

p. 7 capacity or official capacity, or both such capacities, from officers, trustees, officials, and employees in their personal and civil actions, which claims or actions arise against such

employees as set forth herein shall be applicable to all claims

The immunity of the state’s officers, trustees, officials, and

RSA 99-D:1. It further provides that:

state. provided by statute, is hereby adopted as the law of the wanton or reckless manner, except as otherwise expressly

thereof acting within the scope of official duty and not in a

trustees, officials, or employees of the state or any agency

extension of that doctrine, the official immunity of officers, The doctrine of sovereign immunity of the state, and by the

D:1. This provision states in part that:

torts, such as negligence. Compare

for state and state agency officers, trustees, officials and employees. RSA 99as the law of this state in 1978, the legislature also adopted official immunity immunity against common law claims). When it adopted sovereign immunity

§ 1983 (2000), whereas the latter shields against lawsuits alleging common law

constitutional claims under 42 U.S.C. § 1983 is distinct from that for official

alleging constitutional violations, such as claims brought under 42 U.S.C.

Richardson v. Chevrefils wrongful acts committed within the scope of their government employment.

(standard for qualified immunity that protects public officials from 126 N.H. at 299; see with limited exception. Id also Mulligan v. Rioux, 643 A.2d 1226, 1234 (Conn. 1994)

government’s operation, inter alia The doctrines are distinct, however, in that the former shields against lawsuits

doctrines of qualified immunity and official immunity provide immunity for With respect to personal liability for public officials and employees, the employees.” Tilton consent,” and shields it “from liability for torts committed by its officers and most instances to the same rules of liability as private corporations. Id. at 730.

however, this court abrogated the common law doctrine of municipal immunity from tort liability. Merrill, 114 N.H. at 724. More than three decades ago, doctrine of municipal immunity has historically protected local governments

(governmental unit may be held liable for certain damages arising out of immunity for certain circumscribed acts, see, e.g., RSA 507-B:2 (1997) doctrine of sovereign immunity by statute, RSA 99-D:1 (2001), and has waived

of a high degree of official judgment or discretion.

basic policy decision which is characterized by the exercise planning or merely the ministerial implementation of a plan.” Hacking executive or planning function involving the making of a legislative or judicial function, and (b) the exercise of an

functions and functions that are purely ministerial.” Hacking applies in any given case, we “distinguish between planning or discretionary In assessing whether the discretionary function immunity exception on the matter would be to obstruct normal governmental operations.” Gardner

interference with legislative and executive decision-making,” Schoff v. City of

bright line rule to determine whether conduct constitutes discretionary government can govern,” Hacking v. Town of Belmont (quotation omitted); see acts and omissions constituting (a) the exercise of a Gardner, 137 N.H. at 257. “We have refused to adopt a activities of government must remain immune from tort liability so that our, 143 N.H. at 549

that is, whether discretionary function immunity identified in p. 8 Merrill We turn now to consider the first part of the immunity inquiry before us, the judgment of the governmental body which originally considered and passed, 114 N.H. at 729 (discretionary function immunity exception).

employees sued in their individual capacities remains a common law question. discretionary function immunity exception primarily “to limit judicial which the legislature has spoken, the scope of official immunity for municipal

not to detain Citro. We have recognized that “certain essential, fundamental exception to provide immunity protection only for officials and employees. See v. City of Concord, 137 N.H. 253, 256 (1993). To that end, we defined the

reasonableness and safety of a plan of governmental services and prefer it over Id Somersworth, 137 N.H. 583, 590 (1993). “To accept a jury’s verdict as to the

(1999) (quotations and brackets omitted), and thus we preserved the within the scope of [their] authority”). Thus, other than those instances in, 143 N.H. 546, 549

liability against the Town for the decision of Lieutenant Gaskell and Officer Lee to RSA 99-D:1 extending official immunity to all municipal officers, trustees, precludes

wanton or reckless manner. in the course of their employment for the state and not in a

cannot be held liable for certain acts or decisions made “in good faith and officials, such as selectmen, school board members, mayors and city managers,

immunity to certain municipal officials, it has not enacted a provision corollary . While the legislature also has adopted isolated provisions affording p. 9 9

basketball game, Hacking

adequate drainage, Hurley v. Hudson immunity exists for: a planning board’s approval of a subdivision plan without Hacking discretionary function immunity exception. In so doing, we have held that place guardrail on a State highway falls within discretionary immunity, State Id Highways, 136 N.H. 202, 205 (1 p. 9 992) (although decision whether or where to sovereign immunity. See, e.g., DiFruscia v. N.H. Dept. of Pub. Works & when based upon a city’s faulty plan or design, Gardner discretionary function immunity as it applies to the State’s limited waiver of

5 p. 9 90, as well as for decisions by the referees and coaches during a school established plan to inspect roadway signage and railings, Schoff, 137 N.H. at Yet, we have denied immunity to municipalities for failing to carry out an

, 143 N.H. at 550.

training and supervision of coaches and referees at a school basketball game, We have had numerous occasions to address the scope of the maintenance and inspection regulations, Mahan, 141 N.H. at 751; and the Manchester, 140 N.H. 417, 422, 424 (1 p. 9 995); a decision whether to enact traffic control and management of roadway safety, Bergeron v. City of guessing of the governing functions of another branch of government. See should remain immune from liability., 137 N.H. at 258, 259; (1993); setting of road maintenance standards and construction of a sidewalk respect to public policy and planning, governmental entities implement the policy decisions.” Id and parking regulations, Sorenson v. City of Manchester involved in weighing alternatives and making choices with, 136 N.H. 692, 694 Owners Assoc. v. Town of Conway, 127 N.H. 593, 600 (1986); traffic control selectmen’s decision not to lay out certain roads, Rockhouse Mt. Property

at 74 p. 9 9-50.

and omissions for which attaching liability would permit judicial second-

political factors” and “operational or ministerial decisions required to characterized by the high degree of discretion and judgment “policy decisions involving the consideration of competing economic, social, and Services, 141 N.H. 747, 750 (1 p. 9 997). In particular, we distinguish between

discretion or judgment must attach to decisions requiring consideration of blurred,” Gardner that distinguishes immune acts or omissions from those that are not; the N.H. at 54 p. 9 9-50. Rather, recognizing that the distinction is “sometimes . It is not simply the exercise of a high degree of discretion and judgment

When the particular conduct which caused the injury is one

discriminate between the different functions:

, 137 N.H. at 257, we adopted the following test to following actions is, in the judgment of the officer, the

p. 10 protective custody and shall take whichever of the RSA 172-B:1, X, the officer may take such person into the judgment of the officer, is intoxicated as defined in

I. When a peace officer encounters a person who, in

RSA 172-B:3 (2002), states, in pertinent part, that:

person in protective custody.

to himself or others, the police officer may place the the person poses an immediate danger of bodily injury that unless the person is placed in protective custody

from a mental illness and probable cause to believe

suspicion to believe that the person may be suffering

behavior which gives the peace officer reasonable When a peace officer observes a person engaging in

RSA 135-C:28, III (2005) provides in pertinent part that:

public as a representative of government.” conduct, and fundamental judgments about how to deal with members of the

“require[ ] the deliberation and judgment characteristic of discretionary

person and protecting the public. These decisions, according to the Town, likely future conduct and harm, and alternative approaches to assisting the officers to evaluate the mental condition of a person, the cause of the condition,

172-B:3, police authority to take a person into protective custody requires

exercise of a high degree of official judgment or discretion.” Merrill

executive functions. The Town argues that under RSA 135-C:28, III and RSA becomes simply a choice of a means to implement policy,” Mahan

involving the making of a basic policy decision which is characterized by the omissions constituting “the exercise of an executive or planning function The Town seeks immunity for discretionary functions involving acts or

by a municipal governing body,” but extends protection to the exercise of the exercise of discretion is no longer characterized by a choice of policy and discretionary function immunity exception “is not limited to planning decisions official actions that can be called discretionary, to determine the point at which 729. According to the Town, the scope of decisions protected by the flashing beacon at intersection). After examining “the broad spectrum of, 114 N.H. at

not immune for failure of State worker to install specific guardrail); Bergeron

type of discretionary function protected under the Merrill immunity exception. Lieutenant Gaskell and Officer Lee not to detain Citro does not constitute the 750 (quotation and brackets omitted), we conclude that the decision of

140 N.H. at 422 (State immune from liability for decision whether to install

p. 11 economic, social, and political factors. The officers’ discretion in this case did a choice of policy or planning, involving the consideration of competing discretionary function. To be protected, the official discretion must constitute

not the sole factor for determining whether government conduct constitutes a

automatic. The exercise of discretion, even to a significant degree, however, is

recognized. case requires an extension or modification of the parameters already

judgment, experience and discretion. Their decision was not menial, rote or carefully Citro’s conduct and attendant circumstances, and to use their trained whether to detain Citro required Lieutenant Gaskell and Officer Lee to evaluate Certainly, under these statutes, the process of reaching a decision about

powers. See

respecting our system of separation of powers. We are not convinced that this

the public, the individual, or both. most appropriate to ensure the safety and welfare of making which would otherwise compromise our system of separation of

the exception was tailored to satisfy the underlying policy of preserving and function immunity. As the last remnant of common law municipal immunity, We decline the Town’s invitation to expand the scope of discretionary

following actions is, in the judgment of the officer, the tantamount to judicial interference with legislative or executive decision-

liability for the alleged negligence of Lieutenant Gaskell and Officer Lee. law, cannot rely upon discretionary function immunity to protect it from

Schoff, 137 N.H. at 590. Accordingly, the Town, as a matter of

into protective custody and shall take whichever of the Therefore, subjecting the Town to liability for the officers’ decision is not in RSA 172-B:1, IX, the officer may take such person policy). Simply put, their decision did not involve municipal governing. the judgment of the officer, is incapacitated as defined judgment was exercised, but whether judgment required consideration of

of Com’rs, 528 N.E.2d 40, 45 (Ind. 1988) (question not simply whether concerning municipal planning and public policy); Peavler v. Monroe Cty. Bd. game, while perhaps involving some discretionary judgment, were not decisions Hacking, 143 N.H. at 552 (decisions of referees and coaches during basketball

II. When a peace officer encounters a person who, in

. . . .

the public, the individual, or both. most appropriate to ensure the safety and welfare of performance of their duties.” Sletten

p. 12 personal liability, which might deter independent action and impair effective “The goal of official immunity is to protect public officials from the fear of

course of their employment or official duties. See from personal liability for discretionary actions taken by them within the Official immunity protects individual government officials or employees

before us today. official immunity remains a common law question, a matter of first impression

qualified immunity. authority cited for their position, albeit they at times interchange the term

argue for application of official immunity, as demonstrated by the legal

to initiating and pursuing judicial proceedings against a person. Belcher v.

the state concerning all state officers, trustees, officials and employees. RSA scope of [their] authority”). Further, it adopted official immunity as the law of of Torts § 895D comment b at 412 (1979). A genuine need exists to “preserv[e] be held liable for certain acts or decisions made “in good faith and within the Town of East Montpelier, 638 A.2d 561, 564 (Vt. 1993); Restatement (Second) County of Hennepin, 637 N.W.2d 286, 296 (Minn. Ct. App. 2001); Hudson v. on the government’s behalf. See, 675 N.W.2d at 299; see also Dokman v. pleadings below and the briefs before us, Lieutenant Gaskell and Officer Lee tort claim and not upon an alleged constitutional violation. Further, in the qualified immunity, because Everitt seeks recovery based upon a common law

performing advocacy functions; that is, functions which are intimately related

the officer had jurisdiction over the person and subject matter. See harm caused by a mistake made in the performance of official duties, provided such as selectmen, school board members, mayors and city managers, cannot example, any public officer performing judicial duties is immune from suit for, e.g., RSA 31:104 (certain municipal officials, immunity to certain municipal employees performing particular job functions Paine, 136 N.H. 137, 146 (1992). The legislature has provided official Town. In reality, Lieutenant Gaskell and Officer Lee seek official immunity, not

decision dismissing student). Prosecutors also enjoy immunity when 159, 165-66 (1925) (immunity for members of school board for quasi-judicial license commissioners for granting state licenses); Sweeney v. Young, 82 N.H. Little, 72 N.H. 555, 556-57 (1904) (immunity for members of state board of

immunity to protect various government employees from personal liability. For Lang, 549 S.E.2d 341, 344 (Ga. 2001). We previously have applied official Sletten v. Ramsey County, 675 N.W.2d 291, 300 (Minn. 2004); Cameron v.

consider whether the doctrine of qualified immunity shields the individual The second component of the immunity question before us requires us to

people from public service. inhibition of discretionary action, and deterrence of able trial -- distraction of officials from their governmental duties,

performance of ministerial duties.” Sletten

Id

basis of hindsight.

include the general costs of subjecting officials to the risks of

not the challenged government activities require something more than the

see particular government activity that is alleged to have given rise to the claim, a discerning fashion or who may now be acting largely on the particular public official is largely a policy question, see Whether, and to what extent, official immunity should be granted to a are not limited to liability for money damages; they also behalf the officials act. pointed out that the consequences of personal liability

necessary to examine “the kind of discretion which is exercised and whether or Sletten, 675 N.W.2d at 304; Restatement, supra comment f at 415-16. It is

299, and depends upon the nature of the claim against the official and the and may be much less qualified than he to pass judgment in Tilton, 126 N.H. at judgment of others, who may have no experience in the area at the same time is held responsible according to the

discretion required by their official duties to the benefit of the public on whose safeguard the ability of public officials to act properly in the exercise of the review of his judgment in hindsight). The United States Supreme Court has qualified immunity). In sum, official immunity is designed to encourage and

duty of making decisions, either of law or of fact, and of requires that officers and employees be charged with the

position in which he is required to exercise his judgment and

employee’s independence of action without fear of lawsuits and to prevent .; see also Cameron, 549 S.E.2d at 344 (immunity meant to preserve public

The complex process of the administration of government

manifest[ly] unfair[ ] [to] plac[e] any [public official] in a personal liability and vexatious suits.” Restatement independence of action without deterrence or intimidation by the fear of . It would be

when conducting the affairs of government stand in a unique position: Further, those individuals charged with exercising discretion and judgment

immune or “ministerial” and unprotected. in deciding whether official conduct is “discretionary” and suit for honest decision-making are factors to be considered

the officer’s freedom of decision and the likelihood of unjust

two kinds of work is also quite different. The importance of claims than the other. The range of free choice needed in the adversely affect others and does so, is more likely to generate

socially desirable, but one kind, since it is intended to

the contrary makes their travel safer. Both kinds of work are

availability of alternative remedies to the injured party. See

of the street repair department does not harm people, but on criminals, but, unavoidably, others as well); good operation the prosecutor’s office does adversely affect people (usually

of the harm borne by the injured party should immunity attach; and (10) the

anger and, sooner or later, a citizen suit. Good operation of

will result to members of the public in the absence of immunity; (9) the nature damage award would be covered by insurance; (8) the likelihood that damage whether the official would be indemnified by the government or whether any

prosecuting attorney cannot do a good job without provoking can do a good job without provoking a citizen suit; the unhampered decision-making. One who repairs the street

the threat of vexatious lawsuits will impact the exercise of discretion; (7)

vulnerable to complaint nor in need of especially

subjected to frequent accusations of wrongful motives; (6) the extent to which exercise of discretion by the officer; (5) the likelihood that the official will be and the extent to which the imposition of liability would impair the free

personal liability. Other official conduct is neither especially the extension of official immunity to municipal police officers. of choice that is not hampered by concerns over potential ed. 1984). Within this framework, we examine whether public policy demands conduct. Some official conduct especially needs a free range

al., Prosser and Keeton on the Law of Torts § 132, at 1065 (5th

performed solely by the government; (4) the extent of the responsibility involved

Some official conduct is more vulnerable to attack than other

private individuals for which they could be held liable in tort or it is one unhampered by extraneous matters; (3) whether the function is performed by the importance that the duty be performed to the best judgment of the officer,

nature of the comparison and evaluation of these competing factors: Restatement, supra comment f at 416-17. A commentator aptly stated the

(1) the nature and importance of the function that the officer is performing; (2) numerous factors must be examined and weighed, and we identify but a few: abrogating municipal immunity in Merrill

p. 15 unfair to our citizens who are injured by erroneous police decisions. When Certainly, it is incontrovertible that immunity can be fundamentally

at times a lengthy and cumbersome process.

subsequent lawsuits or to have their energies otherwise deflected by litigation,

and preserving community safety to have their judgment shaded out of fear of The public simply cannot afford for those individuals charged with securing someone is injured and claims an officer’s decision or conduct was to blame.

and independent in their judgments, without fear of personal liability when

entrusted to police officers demands that they remain diligent in their duties liability for performing inherently governmental tasks. The public safety compromise effective law enforcement and unfairly expose officers to personal

personal liability and hindsight review of their decisions would undoubtedly

underlying police conduct or decision was errant or not. Unbridled exposure to

the executive branch, are particularly vulnerable to lawsuits, whether the police as well as by the citizenry at large. Police officers, as frontline agents for hostilities and hindsight second-guessing by those directly interacting with

Further, law enforcement by its nature is susceptible to provoking the

dangerous, and sometimes deadly, affairs. Even routine traffic stops can be unpredictable and can escalate into

legislation. See stops, investigations of crime, arrests and high speed pursuits, to name a few.

to protect police officers from personal liability, either by common law or by Numerous jurisdictions have adopted some version of official immunity judgment and prudence in a variety of volatile situations, such as investigatory any given day, they are required to employ their training, experience, measured must formulate a necessary compromise. individuals immediately involved, to the public at large and to themselves. On

injuries he may receive in his person or property.” Id our constitutional guarantee that every subject is entitled to a legal remedy for

2003) (statutory immunity); Samaniego v. City of Kodiak, 2 P.3d 78, 83 (Alaska

, e.g., Borders v. City of Huntsville, 875 So. 2d 1168, 1178 (Ala.

pt. I, art. 14. We are, however, at a crossroad of competing policies, and we take actions which have serious consequences and repercussions to the . at 725; see N.H. CONST.

leaving an injured citizen exposed without recourse “is foreign to the spirit of elementary justice.” Merrill, 114 N.H. at 724. We further recognized that employees “offends the basic principles of equality of burdens and of citizen to bear his loss himself when injured by the negligence of municipal

discretion in the performance of their duties. They must make decisions and sector. Police officers are regularly called upon to utilize judgment and essential and inherently governmental task is not shared with the private

functions of civilized society, securing and preserving public safety. This Police officers are trusted with one of the most basic and necessary p. 16 Voelbel v. Town of Bridgewater

try to do their duty to the constant dread of retaliation.

wrongs done by dishonest officers than to subject those who been thought in the end better to leave unredressed the evils inevitable in either alternative. In this instance it has

case, the answer must be found in a balance between the

anyone who has suffered from their errors. As is so often the exposing such as have been honestly mistaken to suit by truant to their duties; but that is quite another matter from

approach to discerning discretionary and ministerial decisions, acts or indeed be means of punishing public officers who have been

(3) not made in a wanton or reckless manner. We caution against a formulaic hard put to it to satisfy a jury of his good faith. There must mistake, in the face of which an official may later find himself calls for action which may turn out to be founded on a

the course of their employment; (2) discretionary, rather than ministerial; and or omissions that are: (1) made within the scope of their official duties while in municipal police officers are immune from personal liability for decisions, acts discharge of their duties. Again and again the public interest

identified by the legislature in RSA 99-D:1. Accordingly, we hold that resolute, or the most irresponsible, in the unflinching law, the law in foreign jurisdictions as well as the scope of official immunity decisions. We adopt parameters for official immunity, as informed by our case common law civil recourse for individuals who may be injured by errant police 16

its outcome, would dampen the ardor of all but the most guilty, to the burden of a trial and to the inevitable danger of [thus] to submit all officials, the innocent as well as the protection and welfare of the citizenry at large must prevail over ensuring

official] is well founded until the case has been tried, and Today, we decide that encouraging independent police judgment for the

[I]t is impossible to know whether [a] claim [against an

emphasized realities that are equally applicable here:

2000) (common law immunity); Mulligan

immunity). When affording official immunity to town selectmen, we immunity); Long v. L’Esperance, 701 A.2d 1048, 1052 (Vt. 1997) (common law University of Houston, 60 S.W.3d 206, 208 (Tex. Ct. App. 2001) (common law Camden, 773 A.2d 693, 697, 703-04 (N.J. 2001) (statutory immunity); Clark v. S.E.2d 166, 174 (N.C. Ct. App. 2001) (common law immunity); Alston v. City of 383, 388 (Miss. Ct. App. 1999) (common law immunity); Prior v. Pruett, 550 1303, 1308 (Md. 1988) (common law immunity); Brumfield v. Lowe, 744 So. 2d 637 N.W.2d at 296 (common law immunity); Clea v. City of Baltimore, 541 A.2d immunity); Cameron, 549 S.E.2d at 344 (common law immunity); Dokman,

or omission as “discretionary” for purposes of official immunity is in accord We note that the criteria adopted today for characterizing a decision, act that do not involve governmental policy-making or planning.

the exercise of a governmental function.” Id character of official action that may support an immunity claim must involve officer’s judgment or discretion,” Brumfield duty to perform under the conditions specified not being dependent upon the

prescribed manner without the exercise of judgment or discretion,” Mulligan

official immunity could extend to discretionary decisions, acts or omissions how or under what circumstances their acts are to be done”). immunity exception under Merrill). In other words, we did not decide whether from fixed and designated facts. Sletten. (citing discretionary function

N.H. at 300. Yet, we left open the question of “whether the discretionary “mere inaction or inattention” not protected by official immunity. Tilton, 126 time and in a manner or upon conditions which are specifically designated, the deliberation, discretion, judgment or policy choice,” and otherwise constituted employees because the alleged negligent acts and omissions did not “call for

. In Tilton, we refused to apply official immunity to individual state

the public official). “Ministerial refers to a duty which is to be performed in a

underlying official immunity. See ministerial when official administers law “with little choice as to when, where, grant of official immunity. Above all, the distinction must serve the purposes certain and imperative, involving merely execution of a specific duty arising brackets omitted); see also Restatement, supra comment h at 418 (acts are courts to render legal conclusions that accomplish the policies underlying the, 744 So. 2d at 388 (quotation and

decisions, acts or omissions “imposed by law with performance required at a 643 A.2d at 1233 (quotations and brackets omitted), and includes those Restatement facts of the situation and the professional goal. Sletten, deliberation and individual professional judgment that necessarily reflects the require obedience to orders or performance of a duty which leave no choice for A discretionary decision, act or omission involves the exercise of personal N.W.2d at 296; Clark, 60 S.W.3d at 208 (ministerial actions are those which

1 p. 17 178. An official’s decision, act or omission is ministerial when it is absolute, provide exacting strictures, but rather to furnish guiding criteria to enable what is just and proper under the circumstances. Borders, 875 So. 2d at and those acts requiring the exercise of judgment and choice and involving hard and fast rules as to the course of conduct that one must or must not take Clark, 60 S.W.3d at 208. Such decisions include those for which there are no

omissions. In the context of immunity, these terms are not subject to a

discretionary and ministerial decisions, acts or omissions is intended not to prescription we provide today for discerning the dividing point between

, supra comment d at 413; Hudson, 638 A.2d at 564. The p. 18 See

operational level rather than exclusively at the policy-making or planning level. with official immunity protecting the kind of discretion exercised at the protected by official immunity must be broader than functions of governing,

job. Accordingly, the scope of the discretionary decisions, acts or omissions

the official’s ability to render independent judgment and effectively perform his

grant.” Sletten “effectively lost if a case is erroneously permitted to go to trial.” Sletten the government entity employing the individual, but it “is not an automatic available to individual public officials, generally may be vicariously extended to

such that subjecting the decision to unbridled tort liability would compromise discretion in the operation or implementation of a government policy or plan, their government employment. Public officials may be required to exercise 18

the grant of official immunity to an individual public official would otherwise be

a bar to a lawsuit, rather than as a mere defense against liability, and is applies in this case. We caution that the purpose of immunity is to operate as allegedly negligent decision not to detain Citro. Official immunity, when remand this case to the trial court for it to determine whether official immunity

exercise independent judgment and effectively perform the responsibilities of

419-20. Vicarious immunity ought to apply when the very policies underlying

, 675 N.W.2d at 300; see also Restatement, supra comment j at

protects Lieutenant Gaskell and Officer Lee from personal liability for their such immunity protects an officer’s particular decision, act or omission, we vicarious immunity should the trial court determine that official immunity One final matter remains, determining whether the Town may enjoy

discretion in the performance of their official duties so that they are free to IV the fear of personal liability for public officials who are required to exercise making or planning. By contrast, official immunity is premised upon removing (discussing qualified immunity for constitutional claims). N.W.2d at 300 (quotation omitted); see also Richardson, 131 N.H. at 231

municipal police officers, and identified the standard for determining whether Because today we have adopted, for the first time, official immunity for

Sletten, 675 N.W.2d at 301-02; Hudson, 638 A.2d at 565 n.1.

exception are limited to discretionary decisions involving municipal policy-

immunity exception for municipalities under Merrill official immunity than that in the context of the discretionary function “Discretionary” necessarily has a broader meaning in the context of

law. Thus, the discretionary functions that fall within the protection of the legislative branch by supervising its policy and planning decisions through tort municipalities from judicial intrusion into the province of the executive or n.4 (Minn. 1988). The discretionary function immunity exception protects underlying the two. p. 18 See Nusbaum v. Blue Earth County, 422 N.W.2d 713, 718

entitled to vicarious immunity. immunity for their decision not to detain Citro, and whether the Town is

determine whether Lieutenant Gaskell and Officer Lee are entitled to official

under discretionary function immunity. We remand for the trial court to judgment, but hold as a matter of law that the Town is not entitled to immunity fault. We affirm the trial court’s denial of the Town’s motion for summary

jury verdict form should identify Citro as a party for purposes of apportioning

the jury should apportion fault among all of the alleged tortfeasors, and the indispensable party. Should the case go to trial, pursuant to RSA 507:7-e, I, the trial court’s denial of Citro’s motion to dismiss him as a necessary and

In sum, we conclude that our holdings under Nilsson

under the standard adopted today.

DALIANIS and DUGGAN, JJ., concurred.

officers. See and remanded.

liability claim against him, as an active litigant in the case. Thus, we reverse

must also determine whether the Town is protected by vicarious immunity

afford relief to citizens harmed by the negligent conduct of municipal police We note that the legislature is free to enact legislation that would otherwise would fear retribution from government that would have to pay the judgment). do not permit joinder of Citro, a tortfeasor who has fully settled Everitt’s

thereby deter effective performance of the discretionary duties at issue. Id focus “stifling attention” upon the individual official’s job performance and that Lieutenant Gaskell and Officer Lee are entitled to official immunity, it has secured liability insurance). On remand, should the trial court determine effectively undermined. See employee does not protect government employer to the extent that employer

Cameron, 549 S.E.2d at 347 (immunity for individual public

protect independence in judgment and discretion because individuals still Tilton, 126 N.H. at 299 (indemnification of individual state officials does not

vicarious immunity applies when exposing the municipality to liability would