“Whereas, in 1983 the New Hampshire Supreme Court stated that it should be reluctant to reconsider the validity of the doctrine of sovereign immunity ‘until the legislature has been given an opportunity to correct the present procedural and financial inadequacies of statutes relating to sovereign immunity.’ State v. Brosseau,
“Whereas, HB 440 has been introduced and amended by the judiciary committee of the house of representatives and is now pending before the house of representatives; and
“Whereas, HB 440, as amended, waives the immunity of the state with respect to claims against the state and its employees to a maximum recovery of $250,000 per claimant and $2,000,000 per incident with certain specified exceptions; and
“Whereas, the intention of HB 440, as amended, is to provide a comprehensive procedure for bringing claims against the state and its employees and to address the procedural and financial inadequacies of existing legislation, RSA 541-B; and
“Whereas, in the view of the house of representatives HB 440, as amended, provides a reasonable system of compensation to satisfy the claims of persons injured by the negligent acts of state officers
“Whereas, questions have been raised concerning the constitutionality of this legislation; be it
“Resolved by the House of Representatives:
“That the justices of the Supreme Court are respectfully requested to give their opinion upon the following questions of law:
“1. Is it permissible under Part I, Article 14 of the New Hampshire Constitution for the state to impose limitations on recovery by a person injured by the negligent acts of a state official or employee?
“2. If the answer to question one is in the affirmative, are the limitations on recovery set forth in HB 440, as amended, permissible under the New Hampshire Constitution?
“That the clerk of the house of representatives transmit copies of this resolution to the justices of the New Hampshire Supreme Court.”
The following answer was returned:
To the House of Representatives:
The undersigned Justices of the Supreme Court submit the following reply to your request for an opinion as to the constitutionality of the provisions of House Bill No. 440 (HB 440), as amended. Interested parties were permitted to file memoranda with the court until April 19, 1985.
I. Introduction
“The doctrine of sovereign immunity is deeply entrenched in this jurisdiction.” Krzysztalowski v. Fortin,
Despite the firmly established position of the sovereign immunity doctrine, this court increasingly has criticized and expressed doubts as to the validity of its various aspects. Chief Justice Kenison, writing for the court in Krzysztalowski v. Fortin, supra at 189,
In State v. Brosseau supra, the opinion of the court stated that judicial action on the validity of the doctrine of sovereign immunity should be deferred “until the legislature has been given an opportunity to correct the present procedural and financial inadequacies of statutes relating to sovereign immunity.” State v. Brosseau, supra at 192,
As the resolution certifying the bill to our consideration makes clear, HB 440 is a legislative response to the increasing criticism of the sovereign immunity doctrine. HB 440 addresses this criticism by, among other things: (1) preserving the sovereign immunity of the State and the official immunity of its officials and employees except where the bill or other legislation waives the immunities; (2) waiving these immunities for claims by persons injured by negligent acts of State employees, subject to certain exceptions and restrictions; (3) establishing procedures for the adjudication of such claims; and (4) limiting the damages recoverable against the State to a maximum of $250,000 per claimant and $2,000,000 per incident.
In certifying HB 440 for our opinion, the House of Representatives asks us the following two questions:
“1. Is it permissible under Part I, Article 14 of the New Hampshire Constitution for the state to impose limitations on recovery by a person injured by the negligent acts of a state official or employee?
“2. If the answer to question one is in the affirmative, are the limitations on recovery set forth in HB 440, as amended, permissible under the New Hampshire Constitution?”
II. The Constitution
Part I, article 14 of the State Constitution provides:
“Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.”
“The purpose of [this provision is] to make civil remedies readily available, and to guard against arbitrary and discriminatory infringements on access to courts.” Estate of Cargill v. City of Rochester,
Our constitution guarantees State citizens equal protection under the law. N.H. Const, pt. I, arts. 2 and 12. Principles of equal protection are intended to ensure that persons similarly situated are similarly treated by government. See Gazzola v. Clements,
“The continued existence of any application of the doctrine of sovereign immunity depends upon whether the restrictions it places on an injured person’s right to recovery be not so serious that [they] outweigh[] the benefits sought to be conferred upon the general public.” State v. Brosseau,
Four considerations support continuation of the immunity doctrine. First, exposure to liability would force the State to obtain funds to satisfy, process, and insure against claims against the State by either increasing revenues or diverting funds from other uses. See State v. Brosseau, supra at 197-98,
Against these four considerations must be weighed the constitutional principle “that all citizens have a right to the redress of their actionable injuries” and the policy that a person or entity that “unreasonably interferes with the interests of another should be liable for the resulting injury.” Gould v. Concord Hospital,
The scope of the legislature’s authority to immunize the State from tort liability depends on a balancing of the considerations supporting and opposing continuation of the immunity doctrine. In Merrill v. Manchester supra, this court abolished the rule that a municipality is immune from liability for torts arising from its performance of governmental, but not proprietary, functions. The court stated that the availability of insurance, the likelihood that liability exposure would encourage responsible government, and the principle that a party should be liable for the injuries it causes others
As the opinions in State v. Brosseau,
Other members of the court would assign a greater relative weight to the considerations favoring immunity, and would decline to begin the analysis by recognizing any broad presumption against the constitutionality of the immunity doctrines. These members of the court would agree that immunity should be recognized in the instances described in the foregoing quotation from Merrill, and would likewise recognize that reasonable dollar limitations on recovery are constitutional.
Thus, despite different starting points, the court is unanimous in its judgments concerning all but one of the basic features of the amended bill. Moreover, the court is unanimous in finding that the bill would create certain equal protection problems by its proposed demarcation between protected and unprotected activities. The practical result is either a majority or unanimity within the court on
In reviewing the bill, we confine our attention to three of its aspects: A. the substantive scope of liability imposed on the State; B. the notice required to be given the State before a claim against the State may be filed; and C. the limits set on damages recoverable against the State.
A. Substantive Scope of Liability
HB 440 proposes to withdraw the shield of sovereign immunity to allow against the State actions alleging a “request for monetary relief for bodily injury, death or property damages caused by the failure of the state or state officers, trustees, officials, employees, or members of the general court to follow the appropriate standard of care when that duty was owed to the person making the claim.” (Proposed RSA 541-B:1, Il-a.) The bill thus allows negligence actions to be maintained against the State for the above-specified types of injuries. Complementing and qualifying this allowance of negligence claims are six provisions retaining the State’s immunity under certain circumstances. To determine whether the substantive scope of liability imposed on the State is constitutionally sufficient, we consider, first, the constitutionality of limiting actionable injuries to “bodily injury, death or property damages,” and, second, the constitutionality of the six provisions detailing the circumstances under which the immunity of the State is retained.
By authorizing recovery only for “bodily injury, death or property damages,” the bill denies recovery for otherwise actionable injuries, including emotional distress, loss of consortium, interference with economic relations, and invasion of privacy. We see no basis for excluding recovery for these injuries, while allowing recovery for the specified injuries. The State’s interest in minimizing its liability does not depend on the nature of the injury inflicted; nor does the plaintiff’s interest in obtaining recovery necessarily depend on the nature of the injury suffered. A plaintiff whose car has been damaged due to the negligence of a State employee cannot rationally be said to be more entitled to relief than a plaintiff who has suffered the emotional trauma of witnessing a loved one negligently injured or killed at the hands of that same employee. We thereforeí find that the State may not authorize recovery for certain injuries/ to the exclusion of others. J
We next address the six provisions in HB 440 that specify the circumstances under which the State retains its immunity. To opine on their constitutionality, we address the provisions in turn.
“Any claim which is based upon the exercise of a legislative or judicial function.”
The effective exercise of legislative discretion and the ability of the courts to render final judgments and to maintain confidence in the judiciary would be greatly impaired by exposure to liability for the tortious exercise of legislative or judicial functions. Continuing the immunity in these areas is therefore permissible.
2. Proposed RSA 5U1-B:19,1(c)
“Any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the state or any state agency or a state officer, employee, or official acting within the scope of his office or employment.”
In the broad spectrum of official actions that can be called discretionary, there is a 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. As to the former type of actions, the members of this court are not prepared to state the extent to which the legislature may immunize the State and its officials from tort liability. We recognize, however, that under the constitutional principle of separation of powers, N.H. Const, pt. I, art. 37, certain actions of the executive are clearly immune. For these actions, we adopt the following test:
“When the particular conduct which caused the injury is one characterized by the high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning, governmental entities should remain immune from liability. ...”
Whitney v. Worcester,
3. Proposed RSA 5U1-B: 19,1(d)
“Any claim arising out of an intentional tort, including*564 assault, battery, false imprisonment, false arrest, intentional mental distress, malicious prosecution, malicious abuse of process, libel, slander, misrepresentation, deceit, invasion of privacy, interference with advantageous relations, or interference with contractual relations.”
Among HB 440’s limitations on the tort liability of the State, this provision’s conferrence of intentional tort immunity is the most sweeping. Although we would uphold the constitutionality of this provision if its application were narrower, we find the present version overly broad.
In balancing the citizen’s constitutional right to the redress of his actionable injuries against the State’s interest in limiting its tort liability, we believe that the State may immunize itself and its officials from intentional tort liability whenever the offending State employee acted under a reasonable belief that his conduct was authorized by law. Liability should arise only if the employee did not reasonably believe in the lawfulness of his conduct. As is more fully discussed below, we would so circumscribe the potential liability of the State because unbridled liability exposure in our view would discourage diligent service on the part of State personnel and thus would impair the functioning of State government.
The functioning of government necessarily entails certain personally intrusive actions by the State, such as the making of arrests, the condemnation of property, or the garnishment of wages. Because these intrusions are almost always intentional, such an intrusion, if not authorized by law, may well constitute an intentional tort.
Although we fully expect government personnel to be familiar with and to conform their conduct to the law, we recognize that unfamiliarity with the subtler nuances of the law may occasionally lead State personnel to overstep its bounds and thereby to injure unlawfully the interests of a third party.
To hold the State liable when the employee or official reasonably believes that his conduct conforms to the law would in our opinion have a chilling effect on the morale and motivation of government personnel. Given the societal importance of maintaining vigilant government personnel, we believe that the State is not constitutionally compelled to expose itself to liability for intentional torts committed by government officials or employees who act under a reasonable belief in the lawfulness of their conduct.
We do not find a similarly compelling rationale for insulating the State from liability for intentional torts not grounded on a reasonable belief in the lawfulness of the disputed act. We therefore
We recognize that exposing the State to even this limited liability for its intentional torts sharply breaks with precedent. We note, however, that the window of liability opened by our construction of HB 440 is small. The State’s liability in tort is vicarious. To establish the State’s intentional tort liability, a plaintiff thus must prove that the offending State employee not only lacked a reasonable belief in the lawfulness of his conduct, but also acted within the scope of his employment. See Chalmers v. Harris Motors,
4. Proposed RSA 541-11:19,1(b)
“Any claim based upon an act or omission of a state officer, employee, or official when such officer, employee, or official is exercising due care in the execution of any statute or any rule of a state agency.”
This provision’s retention of sovereign immunity in instances where State employees or officials act with reasonable care does not affect the State’s exposure to liability. As we have previously discussed, liability for negligence will arise only on the failure of an employee to exercise reasonable care and for an intentional tort only on the failure of an employee to act under a reasonable belief in the lawfulness of his conduct. We can imagine no circumstances under which an employee’s exercise of reasonable care would create tort liability on the part of the State. This provision therefore raises no apparent constitutional problems.
5. Proposed RSA 541-11:19,1(e) and, (f)
“Any claim arising in respect to the assessment or collection of any tax, or the lawful detention of any goods or merchandise by any law enforcement officers.”
“Any claim arising out of the ownership, occupation, maintenance, or operation of public sidewalks, streets, highways, or publicly owned airport runways or taxiways.”
The sweeping immunity conferred by these provisions is not constitutionally justifiable. We believe that the State’s interest in minimizing its liability exposure is adequately served by retention of the State’s immunity for injuries caused in the exercise of a legis
B. Statute of Limitation and Notice of Claim Requirement
HB 440 proposes to amend RSA 541-B:14, IV to provide:
“Any claim submitted under this chapter shall be brought within 6 years of the date of the alleged bodily injury or property damage or the wrongful death resulting from bodily injury; provided, however, that the agency is notified by mail within 180 days of the alleged bodily injury or property damage sustained by the claimant. Such notification may be made either by the claimant or an appropriate representative of the claimant.”
The bill thus establishes a six-year limitations period and a six-month notice of claim period. We address these two provisions in turn.
Because “[i]t is manifestly unfair to foreclose an injured person’s cause of action before he has had a reasonable chance to discover its existence,” French v. R. S. Audley, Inc.,
The notice of claim provision has two purposes: to allow the State to investigate claims promptly after an injury, and to permit the State to pursue settlement negotiations prior to the institution of
The same reasoning that we have applied to the six-month notice provision requires us to strike down the bill’s provision limiting interest on judgments against the State to the period following judgment. (Proposed RSA 541-B:14, III.) RSA 524:1-b provides generally that interest shall run from the date of the writ. We see no basis for distinguishing between the State or its officials and other defendants on this matter.
C. Damage Limits
HB 440 proposes to amend RSA 541-B.T4,1 to provide:
“All claims arising out of any single incident against any agency for damages in tort actions shall be limited to an award not to exceed $250,000 per claimant and $2,000,000 per any single incident, or the proceeds from any insurance policy procured pursuant to RSA 412:3, whichever amount is greater ....”
The bill thus establishes two damage ceilings: $250,000 per claimant and $2,000,000 per incident. The constitutionality of these limitations turns on whether “the restrictions ... place[d] on an injured person’s right to recovery” by these limitations “be not so serious that [they] outweigh[] the benefits sought to be conferred upon the general public.” State v. Brosseau,
The authority of the legislature to set reasonable limits on damages recoverable against governmental entities is well established. See Estate of Cargill v. City of Rochester,
We earlier noted that the State had an interest in minimizing its liability exposure because if the State incurred significant liability, the payment of claims could impair the financial ability of the State to render governmental services. Recognizing the risk posed by unlimited liability exposure, as well as the unique characteristics of the State-tortfeasor citizen-plaintiff relationship, we hold that reasonable recovery limits are constitutionally permissible.
The $250,000 per claimant limitation distinguishes between persons injured by the State and persons injured by other tortfeasors. Although a plaintiff’s legitimate damages may exceed this ceiling, we find that, even “[g]iven the soaring costs of medical services, legal expenses, and other damages likely to be sustained by tort victims,” this limit adequately balances the competing interests of the State and of the personal injury plaintiff at this time. Estate of Cargill v. City of Rochester,
The $2,000,000 per incident limitation will apply only in certain instances where there are more than eight persons claiming damages from the State for the same incident ($250,000 per person limit X 8 plaintiffs = $2,000,000 per incident limit). In such an instance, the hardship occasioned by application of this provision could be
Although we recognize the potential hardship posed by this provision, we also recognize that any similar restriction will pose the same problems. Since we have determined that the legislature may constitutionally limit the damages recoverable from the State, the only issue before us is whether the $2,000,000 limit is a reasonable exercise of the legislature’s authority. “We are not prepared to say... that [the limit] is so severe as to be ‘very wide of any reasonable line of demarcation.’ ” Estate of Cargill v. City of Rochester,
John W. King David A. Brock William F. Batchelder David H. S outer
I fully agree with this opinion with the exception of section III. C, upholding dollar limits on recovery, for the reasons stated in my dissent in Estate of Cargill v. City of Rochester,
Charles G. Douglas, III