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Law Update

New Hampshire Supreme Court Decision Holds:

1. Settling Tortfeasor Cannot Be Added As
Defendant For Trial Under The DeBenedetto Decision
* * *
2. Official And Vicarious Immunity Recognized As
Defenses In Cases Against Municipalities
Everitt v. General Electric Company, No. 2006-481 (September 21, 2007)

Facts: The plaintiff, Everitt, was seriously injured in a motor vehicle accident while a passenger in a vehicle driven by Jeremiah Citro. 

Prior to the accident, Citro had appeared at his place of employment, General Electric, on two occasions when he was not scheduled to work and refused to leave.  GE contacted the Hooksett Police on each occasion.  Two Hooksett police officers responded.  On the second occasion, the officers conducted a field sobriety test, and then released Citro.  The accident occurred later that afternoon.

Everitt settled with Citro for his insurance policy limits, and filed suit against GE, a GE supervisor, the Town of Hooksett, and the two responding police officers.  She alleged that the defendants owed her a duty of care to prevent Citro from operating his motor vehicle because of his unusual behavior and his prior accident history.

The Town and individual police officers, Gaskell and Lee, moved for summary judgment based on the doctrines of discretionary function immunity and qualified immunity.  The trial court denied the motion.

Officer Lee then filed a contribution action against Citro for his role in the accident.  The Town and Officer Gaskell filed a claim against Citro claiming that he was an indispensable party who should be joined as a third party defendant.  Citro moved to dismiss the claims, arguing that a contribution action could not be brought against him under 507:7-h because he had settled his claims with Everitt.  He also argued that Nilsson v. Bierman did not permit the joinder of a settling party.  The motion to dismiss was denied.

The trial court subsequently certified the following questions for interlocutory appeal:

  1. Does 507:7-h preclude a tortfeasor who has settled in good faith from being brought into litigation under a claim of contribution?
  2. Does Nilsson allow a defendant to require a settling tortfeasor to actually participate in the litigation, as opposed to simply having the settling party be named on the jury verdict form?
  3. Does the doctrine of discretionary function immunity preclude liability against the Town for the individual officers’ decision not to detain Citro?
  4. Does the doctrine of qualified immunity shield the individual police officers from personal liability?
  5. Is the Town entitled to vicarious immunity in the event that the individual officers are protected from personal liability based on official immunity?

Held:   Affirmed in part, reversed in part, and remanded. 

1. Defendant Lee conceded that his contribution claim was barred by RSA 507:7-h, and, therefore, that issue was not addressed on appeal.
2. The Court held that Nilsson (for purposes of apportionment under RSA 507-7:e, I(b), the term “party” refers to “parties to an action, including settling parties”) and DeBenedetto (the term “party” also incorporates “all parties contributing to the occurrence giving rise to an action, including those immune from liability or otherwise [never sued]”) do not permit joinder of a tortfeasor who has settled with the plaintiff as an active litigant in the case.  Thus the Supreme Court reversed the trial court’s denial of Citro’s motion to dismiss him as a necessary and indispensable party. 

Although the trial court should identify Citro as a party on the jury verdict form for purposes of apportioning fault, he cannot be required to participate in the case as an active litigant and incur the costs of litigation after settling with the plaintiff.  Allocation of fault to a non-litigant tortfeasor must be supported by adequate evidence, and the burden of establishing fault on the part of the “non-litigant” tortfeasor must be borne by the defendants.

3) The Court also affirmed the trial court’s denial of the Town’s motion for summary judgment, but held that the Town is not entitled to discretionary function immunity as a matter of law. 

Discretionary function immunity involves acts or omissions constituting “the exercise of 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.”  The official discretion must constitute a choice of policy or planning, involving the consideration of competing economic, social, and political factors. 

Although the decision of the officers not to detain Citro involved the exercise of discretion, it did not involve municipal governing and, therefore, did not invoke discretionary function immunity.

4) The Court remanded the case to the trial court for a determination as to whether the individual officers were entitled to official immunity (“qualified immunity” applies only to constitutional violations) for the plaintiff’s common law tort claim arising from for their decision not to detain Citro. 

Official immunity protects certain individual government officials or employees from personal liability for discretionary actions taken by them within the course of their employment or official duties. 

The Court held that the doctrine of official immunity, which it had previously applied to other government employees, is to be extended to provide immunity from personal liability to municipal police officers for decisions, acts or omissions that are: 1) made within the scope of their official duties while in the course of their employment; 2) discretionary, rather than ministerial; and 3) not made in a wanton or reckless manner.  This immunity is broader than the discretionary function immunity applicable to governmental decisions, since it protects discretion exercised at the operational level rather than exclusively at the policy-making or planning level.

5)  Finally, the Court remanded the case for a determination as to whether the Town is entitled to vicarious immunity. 

If the trial court determines that official immunity protects the individual officers from personal liability for their decision not to detain Citro, then that immunity “may be vicariously extended to the government entity employing the individual, but it ‘is not an automatic grant’”.

Vicarious immunity from liability should apply when failure to do so would undermine the policies underlying the grant of official immunity to the government employees by causing “stifling attention” on the individual officer’s job performance and deterring effective performance of his/her discretionary duties.


Mike Wallenius




Attorneys at Law

1838 Elm Street, Manchester, NH 03104
Ph 603.634.4300 - Fax 603.626.3647

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