Sousa v. StateSousa v. State
- Reporters:
- , ,
- Before:
- Lampron
Actions by John Sousa and Joseph Evans, driver and passenger in a tractor-trailer truck, to recover damages for the injuries they sustained when the State-owned and -maintained bridge over the Gale River on Route 117 in Franconia collapsed while they were driving over it. Plaintiffs allege that their injuries were caused by the negligent failure of the State to properly maintain the bridge, to keep it in proper repair, and to post warning signs of load limitation. The State filed motions to dismiss these actions on the ground of sovereign immunity. The motion in the
Sousa
case was granted by
Mullavey,
J., and the motion in the
Evans
case by
Johnson,
J. All questions of law raised by the plaintiffs’ exceptions were
The doctrine of sovereign immunity is deeply entrenched in this jurisdiction.
Krzysztalowski v. Fortin,
108 N.H. 187, 188, 230 A.2d 750, 751 (1967). State immunity is broader than municipal immunity which this court has recently abolished in
Merrill v. Manchester, 114
N.H. 722, 332 A.2d 378 (1974);
see Opinion of the Justices,
101 N.H. 546, 548, 134 A.2d 279, 281 (1957). In addition to having immunity from liability for torts, which municipal corporations previously enjoyed as to certain torts, the State is also immune from suit in its courts without its consent, a privilege cities and towns never had.
Bow v. Plummer,
79 N.H. 23, 104 A. 35 (1918);
Rhobidas v. Concord,
70 N.H. 90, 114, 47 A. 82, 86 (1899);
In many States the rule that a State cannot be sued without its consent is written into its constitution which either prohibits the giving of consent, or provides that the legislature will direct the manner, courts, and cases in which suits can be brought. Hutchinson v. Board of Trustees, 228 Ala. 20, 256 So. 2d 281 (1971); Blair v. Anderson, 325 A.2d 94, 96 (Del. 1974); Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973); see Restatement (Second) of Torts § 895A, Special Note 12-19 (Tent. Draft No. 19, 1973). In other jurisdictions, including our own, the State’s immunity from suit is traced back to the immunity of the British Crown carried over to the States by the courts. Id. § 895B, Comment a; see Bow v. Plummer, 79 N.H. 23, 104 A. 35 (1918); 2 F. Harper 8c F. James, The Law of Torts § 29.2, at 1609 (1956).
The State’s immunity for torts, also said to be a carry-over from the British Crown, is generally recognized to be of judicial origin as was municipal immunity. Gossler v. Manchester, 107 N.H. 310, 311, 221 A.2d 242, 243 (1966); Muskopf v. Corning Hosp. Dist., 55 Cal. 2d 211, 218, 359 P.2d 457, 461 (1961). In most cases, however, no distinction has been made as to whether a tort suit against the State was dismissed because of the State’s immunity for torts or its immunity from suit without its consent. Krzysztalowski v. Fortin, 108 N.H. 187, 188, 230 A.2d 750, 751 (1967); cf. Holytz v. Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962).
The tort immunity of the State and that of cities and towns have had a different history in this State. In
Gossler v. Manchester,
107 N.H. 310, 221 A.2d 242 (1966), when this court was asked to reconsider the doctrine of municipal immunity for torts, indications were given in a concurring and a dissenting opinion that this doctrine was on
Plaintiffs argue, however, that abolishment of this immunity is mandated by article 14, part I of our constitution. It reads in pertinent part as follows: “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 . . . conformably to the laws.” The decision in Merrill v. Manchester was not based on this ground. We indicated in Opinion of the Justices, 113 N.H. 205, 210, 304 A.2d 881, 885 (1973), that these rights are necessarily relative. “As indicated in article 14 the remedies provided are to be ‘conformably to the laws’. This means the rules of statutory and common law applicable at the time the injury is sustained.” Id.; Pinnick v. Cleary, 360 Mass. 1, 2, 271 N.E.2d 592, 599 (1971). If article 14 were to be interpreted as urged by the plaintiffs, contributory or comparable negligence, statutes of limitations, or other defenses which would prevent an injured plaintiff from recovering for his injuries against an individual defendant or the State would be unconstitutional. McCoy v. Kenosha County, 195 Wis. 273, 218 N.W. 348 (1928); see Annot., 57 A.L.R. 419 (1928).
Plaintiffs’ actions are based on a negligent act of agents of the State and not on an appropriation of their property.
Gilman v. Concord,
89 N.H. 182, 186, 195 A. 672, 674-75 (1937). Hence the defense of state immunity is not in violation of state and federal constitutional provisions that a man’s property is not to be taken by eminent domain without just compensation being awarded.
See N.H. Water Resources Board v. Pera,
108 N.H. 18, 226 A.2d 774 (1967); Angelle v.
State,
212 La. 1069, 34 So. 2d 321 (1948); Annot., 2 A.L.R.2d 677,
It is not contested that the State may waive its immunities and permit suits to be brought and recovery obtained by plaintiffs injured by the negligence of its agents.
The State has waived its immunities in many instances. It has permitted suits to be brought and judgments entered against it in actions founded upon any express or implied contract.
Another avenue of relief for plaintiffs who are damaged by the negligence of State employees, or otherwise, is a petition to the legislature. N.H. Const, pt. I, art. 32. However the legislature “is not organized to determine the merits of such claims and the time consumed in their consideration adds materially to the legislative costs.” “When there is a genuine issue, this procedure is not satisfactory to any of the parties.” N.H. Judicial Council, Third Biennial Report 41 (1950). To obviate these difficulties, many States have created a board of claims in which relief for torts committed by agents of the State can be obtained. They consist of a certain number of State officials, or of specially named members, who hear such claims with power to render a judgment for the claimant or for the
As previously stated, state immunity for torts involves certain factors not present in the immunity of cities and towns. By its magnitude the striking of a balance between granting relief to injured claimants and protecting the solvency of the State is a more complex problem at that level than it is for most cities and towns. Extremely broad considerations of public policy and government administration are involved. In this respect the legislature’s machinery is well adapted to conduct investigations and give consideration to plans advanced as a solution. Furthermore the legislature has already enacted certain laws in that area. We are aware that other measures are under consideration to regulate this field of liability which could lead to additional legislation. For these reasons we are of the opinion that at this time it would be inappropriate for the court to abrogate by judicial action the existing rules of state immunity.
Because of the result reached it is unnecessary to consider the other issues raised by the parties. We hold that the State’s motions to dismiss were properly granted under the existing law.
Plaintiffs’ exceptions overruled.
All concurred.