Need for official immunity statute to bring lawsuit against a municipality

Over the past two years, several personal injury lawsuits filed against the Municipality have lost on summary judgment. The parties never received a hearing on the merits of their cases as the New Hampshire Supreme Court ultimately ruled that the defendants (who represented local communities) were immune from prosecution. Such rulings prompted lawmakers to establish a committee, to study the legislative actions.

Consequently, in 2015, Senate Bill 41(NH SB41) was passed for the creation of a committee “to study government immunity from suit and accountability by its citizens”, under the chairmanship of Senator Sharon Carson, R-Londonderry.

The committee was created with the objective to study the recent State Supreme Court decisions construing or ruling on state statutes regarding negligence and intentional torts by governmental entities, the lack of statutes of limitations for enforcement actions by governmental entities, and the denial of equitable or declaratory relief to challenge actions by all levels of government. The goal was to make recommendations for legislative action consistent with part I, articles 8 and 14 of the New Hampshire constitution in order to strike a proper balance for government to be held accountable to the citizens in our courts.

However, the committee failed to achieve its objective and produced three bills (Senate Bill 421[1], House Bill 1687[2] and House Bill 1688[3]), out of which one was headed for the Senate and two in the House. All the three bills tampered around the edges of municipal immunity, but none tackled the problems.

The New Hampshire Association was unhappy with the way the bills were heading. Moreover, Cordell Johnson, the Chief Lobbyist also warned in his January-February legal update that the matter should be “of grave concern to all local officials and taxpayers, especially HB1688”. He further pointed out that the existing law states that a municipality, county or school district can be held liable for personal injuries caused by negligence “arising out of ownership, occupation, maintenance or operation of all motor vehicles and all premises”.

The only way to tackle the problem was to craft an official immunity statute, with language establishing that statute as the only basis for judges to grant immunity to cities, towns and their employees. Otherwise, State Supreme Court would continue to shield public employees from lawsuits, particularly law enforcement officials.

The State Supreme Court made it clear through its rulings, that proving negligence was not enough, but reckless or wanton conduct would be sufficient to strip them of protection.

The American Civil Liberties Union of New Hampshire stated that the decision in Farrelly v. City of Concord, 2012 DNH 166, only sets the stage for more violations, and that “[i]nstead of encouraging New Hampshire police officers to know the state of the law, we fear that this decision will enable officers to violate individuals’ constitutional rights through their own ignorance of the law,” said Chief Justice Linda Dalianis. Also, “[n]o citizen can escape punishment by claiming that he or she did not know the law. It is only fair that those charged with enforcing our laws — our sworn officers — be held to the same standard”.





[1] See “NH SB421



[2] See “NH HB1687



[3] See “NH HB1688




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