Thе plaintiffs, George and Maxine Pierson, appeal from the Trial Court’s (T. Nadeau, J.) dismissal of a claim against defendant Town of Effingham (town), and grant of summary judgment to defendant Andrea Hubbard. They argue that: (1) the town was not absolutely immune from liability for the allegedly defamatory statements Hubbard made at a meeting of the board оf selectmen; and (2) the trial court erred in granting summary judgment to Hubbard. We reverse.
Considering the record in the light most favorable to the plaintiffs, the relevant facts follow. See Collectramatic, Inc. v. Kentucky Fried Chicken
Early the next morning, Hubbard contacted one of the town’s selеctmen and advised him of Mrs. Taylor’s attempts to contact town officials. Hubbard proposed to provide a draft deed to the cemetery plot to allow the burial to take place on August 24, with the understanding that the selectmen and town treasurer, who were required to authorize and apprоve the sale of the cemetery plots, would not execute the deed until their meeting scheduled for August 26. The selectman advised her to initiate the deed, collect the money and allow the burial to proceed. The burial took place as scheduled.
The selectmen met as scheduled on August 26, 1999. That day, a member of the board of selectmen asked Hubbard to attend the meeting to explain what had occurred with the sale of the two cemetery plots. During the meeting, Hubbard explained her involvement in the sale of the two cemetery plots, provided the selectmen with the draft deed and advised them that they needed to sign it to formalize the sale of town property. Hubbard also stated that Mrs. Taylor’s husband had contacted her by telephone to report that the funeral home director had told the family that two town residents had approached the gravedigger while he was filling the grave and told him that the body might be buried in the wrong-location. Hubbard also explained that Mr. Taylor and his family were extremely upset.
According to the plaintiffs, Hubbard also stated that they had
“verbally abused and taunted” the Town’s grave-digger by stating, among other things, “don’t bother, you’ll have to dig him up anyway.” Ms. Hubbard stated that the family of the deсedent was present during this exchange. She stated that the family was upset and crying because of what the Piersons had done. Ms. Hubbard indicated that what the Piersons had allegedly done was “absolutely disgraceful” and “distasteful.” The Defendant Hubbard indicated that she wanted the matter addressed by the Board.
The plaintiffs brought claims against the town and Hubbard alleging defamation and negligent and intentional infliction of emotional distress. Both defendants moved to dismiss on the grounds that Plubbard was
The standard of review in considering a motion to dismiss is “whether the allegations [in the plaintiffs’ pleadings] are reasonably susceptible of a construction that would permit recovery.” Collectramatic, Inc.,
The amended writ asserts that Hubbard made the allegedly defamatory statements “in her official capacity and within the course and scope of her duties as Clеrk of the Town of Effingham.” Because the writ does not allege any independent act or wrongful conduct by the town, the town’s liability, if any, would be predicated solely on its status as Hubbard’s employer. Therefore, the town argues, if Hubbard’s statements were absolutely privileged and Hubbard is absolutely immune from suit, then the town cannot be held liable. Because we disagree for the reasons that follow that Hubbard is absolutely immune from suit, we hold that the trial court erred in granting the town’s motion to dismiss on this ground.
A plaintiff proves defamation by showing that the defendant failed to exercise reasonable care in publishing a false and defamatory statement of fact about the plaintiff to a third party, assuming no valid privilege applies to the communication. See Indep. Mechanical Contractors v. Gordon T. Burke & Sons,
“The classification of absolutely privileged communiсations is narrow.” 50 Am. JUR. 2d Libel and Slander § 275 (1995). Indeed, we have cautioned that “the availability of an absolute privilege must be reserved for those situations where the public interest is so vital and apparent that it mandates complete freedom of expression without inquiry into a defendant’s motives.” Supry v. Bolduc,
Consistent with this trend, we held recently that a report made by a member of the board of selectmen at a town meeting regarding the recent termination of a police chief was absolutely privileged. See Voelbel v. Town of Bridgewater,
The board of selectmen is the governing body of all towns operating under the town meeting form of government. See 13 P. LOUGHLIN, NEW Hampshire Practice, Local Government Law § 472, at 369 (1995). The selectmen are officers who form an executive that carries out certain statutory duties and any orders enacted by the town meeting, which is the legislative body. Id. Legislative decision-making is done at the annual town meeting, see id.-, RSA 39:1 (2000), or any town meeting specially warned by the board of selectmen, see RSA 39:4 (2000). Between town meetings, the board of selectmen meet to cаrry out its function of managing the “prudential affairs of the town” and performing duties otherwise “by law prescribed.” RSA 41:8 (1991). However, unlike city councils, for example, boards of selectmen do not exercise any legislative power while conducting their meetings because they are simply carrying out the mandatеs of the legislative body. Cf. Sherburne v. Portsmouth,
One of the board’s duties “by law prescribed” is signing deeds of cemetery lots prepared by the cemetery trustees. See RSA 289:7, 1(e) (1999); RSA 41:9, VI (Supp. 2001). In the present case, because the cemetery trustees were apparently unavailable, Hubbard undertook, at the request of the selectmen, the task of preparing the deed. At the next weekly meeting of the board of selectmen, Hubbard explained her involvement in the sale of the two cemetery lots, providеd the selectmen with the draft deed and advised them that they needed to sign it to formalize the sale of the town property. It is clear from these facts that both the board’s and Hubbard’s functions were administrative and ministerial, not legislative. Therefore, Hubbard’s comments were not absolutely privileged, she was not absоlutely immune from suit, and the trial court erred in dismissing the claim against the town on the grounds of absolute legislative immunity. We do not address the potential
The town argues in the alternative that even if Hubbard’s statements were not absolutely privileged, the motion to dismiss should have been granted because Hubbard acted outside the scope of her employment when she made the allegedly defamatory сomments. We disagree.
The town’s liability is predicated on the doctrine of respondeat superior, which provides that an employer may be held vicariously responsible for the tortious acts of its employee if the employee was acting within the scope of his or her employment when his or her tortious act injured the plaintiff. See Daigle v. City of Portsmouth,
The plaintiffs’ original writ asserted claims against both Hubbard in her individual capacity and the town. In response to the superior court’s holding that the writ contained no facts supporting a finding that Hubbard acted in an individual capacity, the plaintiffs amended their writ to allege the following additional facts:
11. The Defendant Hubbard was not asked to speak on this specific topic by anyone оn the Board of Selectmen or by any other Town employee.
12. The subject upon which the Defendant Hubbard spoke was not on the posted agenda and was not the subject of discussion at the time that she made her statements.
15. The Defendant Hubbard, in her capacity as Town Clerk/Tax Collector doеs not give monthly “reports” to the Board of Selectmen. The Defendant Hubbard made no prior request of the Board asking for time to bring up the matter upon which she spoke, or to have it placed on the agenda.
16. The Defendant Hubbard reported in her hand-written notes that she made her statements “during publiс comments at the Selectmen’s meeting.”
We turn to the plaintiffs’ contention that the trial court erred in granting summаry judgment to Hubbard. In reviewing the trial court’s grant of 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. See Del Norte, Inc.,
After the trial court dismissed the claim against the town on the grounds of absolute immunity, Hubbard moved for summary judgment. She argued that because she had acted in an оfficial capacity when she made .the allegedly defamatory statements, she, like the town, was entitled to absolute immunity. The trial court granted the motion, stating, in pertinent part:
The undisputed material facts establish that Ms. Hubbard acted in her official capacity as the Town Clerk when she informed the selectmen at the August 26, 1999, meeting of the circumstances surrounding the sale of the cemetery plots....
According to the Supreme Court’s decision in Voelbel v. Town of Bridgewater... Summary Judgment must be granted.
We conclude from the order that the trial court granted Hubbard’s motion for summary judgment for the same reason that it granted the town’s motion to dismiss. The court’s reference to Voelbel suggests that the order rests on the erroneоus legal conclusion that the allegedly defamatory statements in this case are absolutely privileged.
Reversed and remanded.