Preview:

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-northern judicial district No. 2006-481 SARAH EVERITT v. GENERAL ELECTRIC COMPANY & a. Argued: April 5, 2007 Opinion Issued: September 21, 2007 Thomas Craig, PA, of Manchester (Thomas Craig and David Woodbury on the brief, and Mr. Woodbury orally), for the plaintiff. Devine, Millimet & Branch, P.A., of Manchester (Donald E. Gardner and Donald L. Smith on the brief, and Mr. Smith orally), for defendant Keith Lee. Ransmeier & Spellman, P.C., of Concord (Charles P. Bauer & a. on the brief, and Mr. Bauer orally), for defendants Town of Hooksett and Owen Gaskell. Wiggin & Nourie, P.A., of Manchester (Gordon A. Rehnborg, Jr. and Mary Ann Dempsey on the brief, and Mr. Rehnborg orally), for defendant Jeremiah Citro.

BRODERICK, C.J. This interlocutory appeal, see Sup. Ct. R. 8, was brought by direct defendants, Town of Hooksett (Town), Owen Gaskell and Keith Lee, and third-party defendant Jeremiah Citro, from two rulings of the Superior Court (Conboy, J.). The first denied the direct defendants' motion for summary judgment seeking immunity from the negligence claim brought by the plaintiff, Sarah Everitt, and the second denied Citro's motion to dismiss the third-party claims against him. We affirm in part, reverse in part and remand. I The following facts are taken from the interlocutory appeal statement, unless otherwise noted. See Guglielmo v. Worldcom, 148 N.H. 309, 311 (2002). Citro was employed at the General Electric (GE) facility in Hooksett. On Saturday morning, November 1, 2003, he arrived at work, and his supervisor reminded him that on the day before, he had been instructed not to return to work until Monday. When Citro failed to leave, GE security contacted the Hooksett Police Department. Lee, a Hooksett police officer, arrived at about 10:45 a.m., but Citro had already left. Officer Lee was familiar with Citro from a prior encounter and went to his home to speak with him. Citro admitted that he was not supposed to be at the GE facility and agreed not to return there until the following Monday. Around 12:45 p.m. that day, however, Citro returned to GE. Hooksett Police were again contacted, and Officer Lee responded to the call. When he arrived, he noticed Citro sitting in his vehicle outside of the company gate. Citro told the officer that he was supposed to meet with the company nurse. During this conversation, Lieutenant Gaskell, also from the Hooksett Police Department, arrived. He observed that Citro had difficulty understanding the situation. As a result, the police conducted field sobriety tests and determined that Citro should be released. At about 3:00 p.m., Citro was involved in a motor vehicle accident with the van in which Everitt was a passenger, allegedly causing her significant injuries. Everitt and Citro settled prior to suit for the full amount of Citro's automobile liability insurance limits. Everitt then sued GE, a GE supervisor, the Town of Hooksett, Lieutenant Gaskell and Officer Lee. She later added as defendants the security company for GE and one of its employees. Everitt asserts that, because of Citro's unusual behavior, each defendant owed her a duty of care to prevent Citro from operating his motor vehicle on the day of the accident. With respect to the Town and the police officers, Everitt also alleges that they had knowledge of or access to information about Citro's prior motor vehicle accidents. For example, she asserts that two years before her accident, Citro hit a car in a parking lot while operating his automobile and that the Hooksett police took him into protective custody because of his disoriented state.

2

Officer Lee moved for summary judgment, which the Town and Lieutenant Gaskell joined, arguing, inter alia, that the doctrines of discretionary function immunity and qualified immunity precluded any liability for the decision not to detain Citro. The trial court denied the motion. Lee then brought a contribution action against Citro for his role in the accident, and defendants Town and Lieutenant Gaskell filed a claim against Citro, contending that he was an indispensable party who should be joined as a third-party defendant. Citro moved to dismiss these claims, arguing that under RSA 507:7-h (1997), no contribution action could be filed against him because he had entered into a valid settlement agreement with Everitt. He also contended that common law did not support including him in the litigation as an indispensable party, and that Nilsson v. Bierman, 150 N.H. 393 (2003), did not permit the joinder of a settling party. The trial court denied the motion and subsequently certified five questions for interlocutory appeal. We accepted three, none of which pertains to defendants GE, the GE supervisor, GE's security company or its employee. II The first two questions relate to whether the trial court properly denied Citro's motion to dismiss him as a participating party in the litigation. They inquire: Does 507:7-h, Effect of Release or Covenant Not to Sue, preclude a settling tortfeasor from being brought into litigation under a claim of contribution when there is no allegation that the settlement was not made in good faith? Does Nilsson v. Bierman, 150 N.H. 393 (2003) allow a defendant to bring a settling tortfeasor into the litigation as a party, as opposed to simply allowing them to be named on the jury verdict form, thereby requiring them to participate in the litigation itself and incur the costs of litigation despite obtaining a full release from liability? Because defendant Lee now concedes that his contribution claim is barred by RSA 507:7-h, we need not address the first question. Thus, we only consider whether under Nilsson, a settling tortfeasor can be compelled to join litigation as a participating party. This inquiry constitutes a question of law, which we review de novo. See K & B Rock Crushing v. Town of Auburn, 153 N.H. 566, 568 (2006). The legislature has enacted a "comprehensive statutory framework for apportionment of liability and contribution" in tort actions, designing several provisions of RSA chapter 507 to work in concert to create "a unified and

3

comprehensive approach to comparative fault, apportionment of damages, and contribution." Nilsson, 150 N.H. at 395 (quotation omitted). In Nilsson, we were asked to decide whether the trial court properly instructed the jury to assess the percentage of fault attributable to a joint tortfeasor who settled before trial and to a non-settling party in accordance with RSA 507:7-e. Id. That statutory provision states in pertinent part: In all actions, the court shall: (a) Instruct the jury to determine, or if there is no jury shall find, the amount of damages to be awarded to each claimant and against each defendant in accordance with the proportionate fault of each of the parties; and (b) Enter judgment against each party liable on the basis of the rules of joint and several liability, except that if any party shall be less than 50 percent at fault, then that party's liability shall be several and not joint and he shall be liable only for the damages attributable to him. RSA 507:7-e, I(a), (b) (1997). We held that for the purposes of apportionment under RSA 507:7-e, I(b), the term "party" refers to "parties to an action, including settling parties," and affirmed the jury verdict that apportioned ninety-nine percent of the fault to the settling defendant and one percent to the non-settling defendant. Nilsson, 150 N.H. at 396 (ellipsis and quotations omitted). In DeBenedetto v. CLD Consulting Engineers, 153 N.H. 793 (2006), a decision issued after this interlocutory appeal was filed, we again reviewed the scope of the term "party" in the apportionment statute, RSA 507:7-e. We examined whether the trial court erred by instructing the jury to consider the apportionment of fault against "non-parties," a settling tortfeasor and a tortfeasor who was immune from liability. DeBenedetto, 153 N.H. at 797. Following Nilsson, we upheld the trial court's instruction noting that "for apportionment purposes under RSA 507:7-e, the word `party' refers not only to parties to an action, including settling parties," but incorporates "all parties contributing to the occurrence giving rise to an action, including those immune from liability or otherwise [never sued.]" Id. at 804 (quotations and ellipsis omitted). Permitting juries to allocate fault on the verdict form among current parties, former parties who have settled, tortfeasors who settled before suit and immune tortfeasors does not mean that a settling tortfeasor (whether that tortfeasor settled with the plaintiff before or after suit was filed) may be joined in the litigation as an active litigant. In Nilsson, the settling tortfeasor was not

4

an active litigant at trial. Nilsson, 150 N.H. at 396. The trial court simply instructed the jury about apportioning fault and, in its special verdict questions, asked the jury to assess the percentage of fault, if any, that was attributable to the defendant and the settling non-litigant tortfeasor. Id. at 394. We note that the jury returned a verdict assessing ninety-nine percent of fault to the settling tortfeasor who was not an active litigant. Id. Further, in DeBenedetto, we anticipated that jurors would apportion fault among joint tortfeasors, including those "otherwise not before the court." DeBenedetto, 153 N.H. at 804. Indeed, we noted that a defendant "may not easily shift fault under RSA 507:7-e; allegations of a non-litigant tortfeasor's fault must be supported by adequate evidence before a jury or court may consider it for fault apportionment purposes." Id. (emphasis added). Thus, we anticipated that the jury or the court would need to apportion fault among joint tortfeasors, even when some tortfeasors were not active litigants at trial, and we expected that the burden of establishing fault on the part of "non-litigant" tortfeasors would be borne by the litigant defendants. Id. Requiring a settling tortfeasor to participate actively in litigation, regardless of whether the defense cost is borne by an insurer, is not contemplated or permitted by Nilsson or DeBenedetto. Therefore, we conclude that a defendant is not permitted under Nilsson or DeBenedetto to bring a settling tortfeasor into the case as an active litigant, requiring him to participate in and incur the cost of the litigation itself. Accordingly, we hold that the trial court erred in denying Citro's motion to dismiss him as an active litigant in the case. We decline to address arguments raised by the defendants that were not preserved for our review because they exceed the scope of the interlocutory question presented. The defendants Town and Lieutenant Gaskell argue that the trial court properly exercised its discretion to retain Citro as a third-party defendant pursuant to RSA 514:10 (2007), Superior Court Rule 27 and our common law practice regarding necessary and indispensable parties. Defendant Lee joined in their argument, identifying Citro as a necessary and indispensable party. The interlocutory appeal question, however, is limited to inquiring whether Nilsson permits the defendants to join a settling tortfeasor as a party to the litigation. Thus, we decline to address the defendants' additional arguments. Further, we do not address the contention made by defendants Town and Gaskell that joinder of Citro comports with their rights to equal protection and due process under our State Constitution. This argument is also beyond the scope of the interlocutory appeal question, was asserted in a mere passing manner without further development, see Franklin Lodge of Elks v. Marcoux, 149 N.H. 581, 592 (2003), and was not raised below.

5

III We now turn to the third question posed in the defendants' interlocutory appeal: Were Officer Lee, Lt. Gaskell and/or the Town of Hooksett entitled to summary judgment because the decision not to detain Mr. Citro was a discretionary decision entitled to immunity under the doctrines of discretionary function immunity and/or qualified immunity? This question incorporates two separate immunity inquiries: (1) whether the discretionary function immunity exception to municipal liability protects the individual police officers and/or the Town; and (2) whether qualified immunity affords similar protection. At the outset, we note that while Everitt asserts a direct claim against the Town for failing to provide proper training and discipline for its police officers, this claim was not included in the interlocutory appeal. Thus, our analysis regarding the defendants' possible immunity reaches only Everitt's claim of negligence premised upon the officers' decision not to detain Citro. In denying the defendants' motion for summary judgment, the trial court ruled that it could not "find, under all the circumstances, that the Hooksett defendants are entitled[,] as a matter of law[,] to municipal immunity." It offered no other analysis or reasoning and did not separately address qualified immunity. When reviewing the denial of a motion for 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." Porter v. City of Manchester, 155 N.H. __, __, 921 A.2d 393, 398 (2007). If "no genuine issue of material fact existed, and the moving party was entitled to judgment as a matter of law, then summary judgment should have been granted." Id. (quotation omitted); see RSA 491:8-a, III (1997). We review the trial court's application of the law to the facts de novo. Belanger v. MMG Ins. Co., 153 N.H. 584, 586 (2006). A Various concepts of immunity exist under both common law and statutory law to protect governmental entities and public officials from liability for injury allegedly caused by official conduct. Sovereign and municipal immunity are distinct doctrines, both designed to protect particular government entities and both rooted in the common law at their inception. Tilton v. Dougherty, 126 N.H. 294, 298 (1985) (sovereign immunity); Merrill v. Manchester, 114 N.H. 722, 727 (1974) (municipal immunity). Sovereign immunity protects the State itself "from suit in its own courts without its

6

consent," and shields it "from liability for torts committed by its officers and employees." Tilton, 126 N.H. at 297. In 1978, the legislature adopted the doctrine of sovereign immunity by statute, RSA 99-D:1 (2001), and has waived immunity for certain circumscribed acts, see, e.g., RSA 507-B:2 (1997) (governmental unit may be held liable for certain damages arising out of government's operation, inter alia, of motor vehicles and premises). The doctrine of municipal immunity has historically protected local governments from tort liability. Merrill, 114 N.H. at 724. More than three decades ago, however, this court abrogated the common law doctrine of municipal immunity with limited exception. Id. at 729. Consequently, municipalities are subject in most instances to the same rules of liability as private corporations. Id. at 730. With respect to personal liability for public officials and employees, the doctrines of qualified immunity and official immunity provide immunity for wrongful acts committed within the scope of their government employment. Richardson v. Chevrefils, 131 N.H. 227, 232 (1988); Tilton, 126 N.H. at 299. The doctrines are distinct, however, in that the former shields against lawsuits alleging constitutional violations, such as claims brought under 42 U.S.C.

Download 2006-481, SARAH EVERITT v. GENERAL ELECTRIC COMPANY.pdf

New Hampshire Law