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 Clerk/Reporter, Supreme Court of New Hampshire, Supreme Court Building, Concord, New Hampshire 03301, of any errors in order that corrections may be made before the opinion goes to press. 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:

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 95-220

JOSEPH B. MAHAN, III & a.

v.

NEW HAMPSHIRE DEPARTMENT OF ADMINISTRATIVE SERVICES

April 21, 1997

Hall, Morse, Anderson, Miller & Spinella, P.C., of Concord (Douglas J. Miller on the brief and orally), for the plaintiffs.

Hall, Hess, Kenison, Stewart, Murphy & Keefe, P.A., of Manchester (Frank E. Kenison on the brief and orally), for the defendant.

BROCK, C.J. The plaintiffs, Joseph and Irene Mahan, sued the defendant, New Hampshire Department of Administrative Services (State), for negligence after Joseph Mahan (hereinafter the plaintiff) was seriously injured while working in a State-owned building. After the Superior Court (McGuire, J.) denied the State's motion for summary judgment, a jury returned a verdict in favor of the plaintiff. The State argues that sovereign immunity bars the plaintiff's claims, and that the court erred in allowing reference at trial to RSA 277:2 (1987) and related labor regulations. We affirm.

The following facts are undisputed. In October 1990, the plaintiff was employed by ServiceMaster Contract Maintenance, Inc. (ServiceMaster), which provided maintenance services in some State office buildings. The plaintiff seriously injured the index finger of his right hand while performing janitorial services in a State-owned building, the Health and Human Services Building in Concord. His injury occurred as he used a hoist owned and supplied by the State to lift and move a metal desk owned by the State. The plaintiff sued the State alleging negligence as well as the violation of mandatory duties imposed by RSA 277:2.

The State moved for summary judgment shortly before trial, see RSA 491:8-a (1983), arguing that the discretionary function exception to the State's limited waiver of sovereign immunity, RSA 541-B:19, I(c) (Supp. 1996), barred the plaintiff's case under the undisputed facts. The trial court did not rule on the motion until the close of the plaintiff's case at trial, by which time the State also had moved for a directed verdict. The trial court denied both motions, allowing the State to present its case. The jury returned a verdict in favor of the plaintiff. This appeal followed.

The State argues that it was entitled to judgment as a matter of law on the basis of the pleadings and affidavits before the superior court at the time the State made its summary judgment motion. The plaintiff urges us to review the entire record, given that the summary judgment motion was made on the eve of trial and that the ruling was not made until during trial. He further urges us to decline to consider the State's appeal for failure to provide the entire record for our review. Because we conclude, on the basis of the materials provided to us, that the State's motion for summary judgment properly was denied, we need not decide whether the entire record should have been provided for our review.

When reviewing the denial of a motion for summary judgment, we consider the pleadings and any accompanying affidavits, and all proper inferences drawn from them, in the light most favorable to the nonmoving party. Dwire v. Sullivan, 138 N.H. 428, 430, 642 A.2d 1359, 1360 (1994). Summary judgment must be granted when there is no genuine issue of material fact to be decided, and the moving party is entitled to judgment as a matter of law. RSA 491:8-a, III (1983).

I. Sovereign Immunity

Pursuant to the doctrine of sovereign immunity, the State may not be sued in State court without its consent. Tilton v. Dougherty, 126 N.H. 294, 297, 493 A.2d 442, 444 (1985). The legislature waived the State's sovereign immunity when it enacted RSA chapter 541-B, subject to several exceptions. See RSA 541-B:19; LaRoche, Adm'r v. Doe, 134 N.H. 562, 566-67, 594 A.2d 1297, 1300-01 (1991). These exceptions are similar to the judicially recognized exceptions to the abrogation of municipal immunity, and we analyze them under similar standards. Compare Gardner v. City of Concord, 137 N.H. 253, 257, 624 A.2d 1337, 1339 (1993) (describing discretionary function exception) with DiFruscia v. N.H. Dept. of Pub. Works & Highways, 136 N.H. 202, 205, 612 A.2d 1326, 1328 (1992) (same).

The "discretionary function" exception retains governmental immunity for conduct that can be characterized as "an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion." Bergeron v. City of Manchester, 140 N.H. 417, 421, 666 A.2d 982, 984 (1995) (quotation omitted); see DiFruscia, 136 N.H. at 205, 612 A.2d at 1328. We have described this exception and its characteristic high degree of official judgment or discretion by reference to whether the conduct involved "weighing alternatives and making choices with respect to public policy and planning." DiFruscia, 136 N.H. at 205, 612 A.2d at 1328 (quotation omitted); see Bergeron, 140 N.H. at 421, 666 A.2d at 984.

We have declined to draw a bright line between discretionary planning and the ministerial implementation of plans, however. Rather, we have stated that it would be possible for workers to implement a faulty design or plan, for which no tort liability should result, but that if, on the other hand, workers negligently follow or fail to follow an established plan or standards, and injuries result, then a government entity could be subject to tort liability.

Bergeron, 140 N.H. at 421, 666 A.2d at 985 (quotations and brackets omitted); see Goss v. City of Manchester, 140 N.H. 449, 451, 669 A.2d 785, 786 (1995).

The retention of sovereign and municipal immunity for discretionary functions stems from the separation of powers doctrine. Gardner, 137 N.H. at 256, 624 A.2d at 1339; see Peavler v. Monroe Cty. Bd. of Com'rs, 528 N.E.2d 40, 44 (Ind. 1988). This exception reflects judicial reluctance to evaluate the wisdom of an executive or legislative choice of public policy goals or the means to accomplish those goals; for a jury or court to determine "the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations." Gardner, 137 N.H. at 256, 624 A.2d at 1339 (quotation and brackets omitted); see also Rockhouse Mt. Property Owners Assoc. v. Town of Conway, 127 N.H. 593, 600, 503 A.2d 1385, 1389 (1986). "[C]ertain essential, fundamental activities of government must remain immune from tort liability so that our government can govern." Neumann v. Davis Water and Waste, Inc., 433 So. 2d 559, 562 (Fla. Ct. App. 1983).

With these principles in mind, we examine "the broad spectrum of official actions that can be called discretionary, [to determine the] point at which the exercise of discretion is no longer characterized by a choice of policy and becomes simply a choice of means to implement policy." Opinion of the Justices, 126 N.H. 554, 563, 493 A.2d 1182, 1189 (1985); see, e.g., Bergeron, 140 N.H. at 422, 666 A.2d at 985. We distinguish policy decisions involving the consideration of competing economic, social, and political factors from operational or ministerial decisions required to implement the policy decisions. See Bergeron, 140 N.H. at 422, 666 A.2d at 984; Peavler, 528 N.E.2d at 45 (question not simply whether judgment exercised, but whether judgment required consideration of policy).

The plaintiff presents RSA 277:2 and certain labor regulations, see N.H. Admin. Rules, Lab 1403.01, 1403.32, as evidence of the "standard" that the State negligently failed to meet. See Bergeron, 140 N.H. at 421, 666 A.2d at 985. RSA 277:2 imposes upon the State the responsibility of providing for work place safety and proper protection of employees entitled to the protections of RSA chapter 277. See RSA 277:1-b, I (1987) :2.

Pursuant to RSA 277:16 (1987 & Supp. 1996), the department of labor has enacted regulations relating to the safety and health of State employees, some of which were cited by the plaintiff in his writ. See N.H. Admin. Rules, Lab 1401.01. Labor Regulation 1403.01 mirrors the general requirement of RSA 277:2 that the State provide a safe work place for its employees. N.H. Admin. Rules, Lab 1403.01. Some rules within this part of the labor regulations establish particular inspection requirements for particular activities and particular types of machinery. E.g., N.H. Admin. Rules, Lab 1403.09(a) ("Chains, cables, ropes and hooks shall be visually inspected daily by a competent person . . . ."); N.H. Admin. Rules, Lab 1403.49(b) ("Complete inspection of [overhead] crane[s] shall be performed at one to twelve month intervals depending on [their] activity, severity of service, and environment."). The rules do not establish or require any State department to establish maintenance standards, procedures, or schedules with regard to hoists such as the one involved in the instant case; they merely require a minimum level of safety. Cf. N.H. Admin. Rules, Lab 1403.47(a) ("All construction equipment in use shall be checked at the beginning of each shift to assure that all parts, equipment, and accessories . . . are . . . free from defects."). The State argues that because the statute and regulations establish no required inspection or maintenance "standards," maintenance and inspection remain discretionary -- and therefore immune -- on the part of the State.

The State's argument that the absence of formal standards renders all maintenance discretionary has some appeal. Cf. Fowler v. Roberts, 556 So. 2d 1, 16 (La. 1989) (plurality opinion) (characterizing State as being "in the anomalous position of claiming that its failure to exercise any discretion is protected by the discretionary function exception to governmental liability"). To a certain degree, any decision involves some degree of discretion. See W. Prosser, The Law of Torts