Municipal Law

Civil Liability Immunities for NH Local Governments and Officials

December 2010

By Charles P. Bauer*

Local New Hampshire governments, including counties, cities, towns, precincts, school districts, chartered public schools, school administrative units, and their departments, agencies, and officials, are protected in civil litigation by various immunities that have been created by the NH Legislature and NH Courts for the benefit of the governmental entity and general public. In general, statutory and common law immunities often times bar — or prevent — civil lawsuits from going forward against NH governmental entities.

The NH Legislature has enacted numerous statutory immunities for the benefit of NH governmental entities and their officials.

RSA 507-B:2-b provides immunity for snow, ice, and other weather hazards on premises owned, occupied, maintained, or operated, absent gross negligence or reckless disregard of the hazardous condition.

RSA 507-B:5, as a general rule, provides immunity from civil lawsuits for bodily injury, personal injury, or property damage, expect for some narrow exceptions- governmental units may be liable for negligence arising out of the ownership, occupation, maintenance, or operation of motor vehicles and premises.

Bodily injury includes death and injuries to a person; injuries to feelings, reputation, false arrest, detention, imprisonment, malicious prosecution, libel, slander, defamation, disparagement, invasion of privacy, invasion of occupancy, wrongful entry, or eviction, mental injury, mental anguish, shock, and discrimination (except when against the public policy or laws of NH).

Property damage includes loss through injury or destruction to tangible property.

RSA 231:92 provides immunity for injury or property arising out of construction, maintenance, or repair of public highways and sidewalks unless the injury or damage was caused by an insufficiency with written notice of such insufficiency to the governmental entity and a failure to act within a certain time.

RSA 507-B:4 limits recovery to $275,000 for any one person, or $925,000 by any number of persons in a single incident or occurrence.

RSA 507-B:4 prohibits punitive damages.

RSA 507-B:4 provides that a present/former employee/official shall be entitled to the same immunities and caps on liability as those which govern municipal liability so long as the employee/official was (1) acting within the scope of office and (2) in good faith.

RSA 31:104 provides immunity for municipal executives shall not be liable for any civil damages for any vote, resolution or decision made (1) in good faith and (2) within the scope of authority.

RSA 627:1 provides immunity for reasonable use of force in law enforcement work to any civil action based on such conduct.

RSA 508:18-A generally provides immunity for the use of dogs in law enforcement provided certain criteria are satisfied.

RSA 508:17 provides immunity for volunteers for a governmental entity if certain criteria are met.

RSA 508:14 provides immunity for political subdivisions which allow recreational use of property without charge, in the absence of intentionally causing injury or damage.

In addition to the NH legislature creating immunities for local NH governments and officials, the NH Supreme Court has created certain common law immunities for NH governments, officers and employees. Two significant NH common law immunities for governments, officials and employees are (1) discretionary function immunity; and (2) official immunity.

To be entitled to discretionary function immunity, a municipality must show that the alleged act or omission complained of constitutes the exercise of an executive or planning function involving the making of a based public policy decision which is characterized by the exercise of a high degree of official judgment or discretion. In other words, discretionary function immunity attaches to decisions that involve the prudent allocation of municipal resources and the weighing of competing economic, social, and political factors. The existence of municipal immunity for discretionary functions is fundamental to the system of the separation of powers between and among the legislative, judicial, and executive branches of government.

NH Courts also created official immunity for NH local governments and their employees and officials when decisions, acts, or omissions are (1) made within the scope of officials duties while in the course of employment; (2) discretionary rather than ministerial; and (3) not made in a wanton or reckless manner.

While a NH local government may procure traditional policies of insurance for civil liability and damages, many of the above statutory and common law immunities will not apply and protect the governmental unit and their officials and employees from liability and damages in civil litigation. RSA 507-B:7-a.

NH governmental entities, however, that are members of pooled risk management programs, organized and existing pursuant to NH RSA 5-B, are entitled to all of the statutory and common law immunities and protections afforded under NH law.

* Charles Bauer is licensed to practice in New Hampshire.

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