discretionary function exception in New Hampshire

2007In assessing whether the discretionary function immunity exception applies in any given case, we “distinguish between planning or discretionary functions and functions that are purely ministerial.” Hacking, 143 N.H. at 549 (quotation omitted); see Gardner, 137 N.H. at 257 .

1993The plaintiffs contend that the acts and omissions alleged do not constitute discretionary functions, and alternatively, even if they do, former RSA 231:92 (1982) permits suit for a municipality’s failure “to install sufficient signage and guardrails in areas of dangerous embankments.” The superior court ruled that “the decision not to erect warning signs and/or guardrails is not a decision characterized by a high degree of discretion to which the discretionary function exception to municipal liability applies.” In light of our recent decisions in Gardner v. City of Concord, 137 N.H. 253, 258

2016Cf. Bergeron v. City of Manchester, 140 N.H. 417, 421 (1995) (addressing a city’s and the State’s discretionary function immunity together “[b]ecause the standards governing whether a city is immune from tort liability under Merrill do not differ appreciably from those that govern the State’s immunity under RSA chapter 541-B”). 2 Although, on appeal, Maryea frames some of her discretionary function arguments around the County’s alleged failure to provide any safety precautions in the transport van, including “seatbelts, hand holds, [or] padding,” in her complaint and in her arguments to the tr

1999Accordingly, in evaluating whether the trial court erred, we must “distinguish between planning or discretionary functions and functions that are purely ministerial.” Bergeron v. City of Manchester, 140 N.H. 417, 421 , 666 A.2d 982, 984 (1995).

1999Works & Highways, 136 N.H. 202, 205 , 612 A.2d 1326, 1328 (1992) (decided under the discretionary function exception to the State’s waiver of sovereign immunity) (decision whether or not to place a guardrail on a highwáy is discretionary).

1999Works & Highways, 136 N.H. 202, 205 , 612 A.2d 1326, 1328 (1992) (decided under the discretionary function exception to the State’s waiver of sovereign immunity) (decision whether or not to place a guardrail on a highwáy is discretionary).

2015“In assessing whether the discretionary function immunity exception applies in any given case, we distinguish between planning or discretionary functions and functions that are purely ministerial.” Id. at 211 (quotation omitted).

2012Co., 156 N.H. 202, 220 , 932 A.2d 831 (2007) (discretionary functions falling within the protection of the discretionary function immunity doctrine "are limited to discretionary decisions involving ... policy-making or planning.").

2007We have recognized that “certain essential, fundamental activities of government must remain immune from tort liability so that our government can govern,” Hacking v. Town of Belmont, 143 N.H. 546, 549 (1999) (quotations and brackets omitted), and thus we preserved the discretionary function immunity exception primarily “to limit judicial interference with legislative and executive decision-making,” Schoff v. City of Somersworth, 137 N.H. 583, 590 (1993).

1995“One of our primary concerns underlying the discretionary function exception [to municipal liability] is to limit judicial interference with legislative and executive decision-making.” Schoff, 137 N.H. at 590 , 630 A.2d at 787 .

2008The discretionary function immunity left intact by Merrill is premised upon the notion that “certain essential, fundamental activities of government must remain immune from tort liability so that our government can govern.” Hacking v. Town of Belmont, 143 N.H. 546, 549 (1999) (quotations and brackets omitted).

2007We have recognized that “certain essential, fundamental activities of government must remain immune from tort liability so that our government can govern,” Hacking v. Town of Belmont, 143 N.H. 546, 549 (1999) (quotations and brackets omitted), and thus we preserved the discretionary function immunity exception primarily “to limit judicial interference with legislative and executive decision-making,” Schoff v. City of Somersworth, 137 N.H. 583, 590 (1993).

1993We have held that the following conduct qualifies for immunity under the discretionary function exception: a planning board’s approval of a subdivision plan without adequate drainage, Hurley v. Hudson, 112 N.H. at 369 , 296 A.2d at 907 ; a town selectmen’s decision not to lay out certain roads, Rockhouse Mt.

1993We have held that the following conduct qualifies for immunity under the discretionary function exception: a planning board’s approval of a subdivision plan without adequate drainage, Hurley v. Hudson, 112 N.H. at 369 , 296 A.2d at 907 ; a town selectmen’s decision not to lay out certain roads, Rockhouse Mt.

1999Services, 141 N.H. 747, 750 , 693 A.2d 79, 82 (1997) (quotation and brackets omitted) (decided under the discretionary function exception to the State’s waiver of sovereign immunity).

1999Services, 141 N.H. 747, 750 , 693 A.2d 79, 82 (1997) (quotation and brackets omitted) (decided under the discretionary function exception to the State’s waiver of sovereign immunity).

1993The city filed a motion to dismiss arguing, among other things, that the plaintiff’s claims were barred by the discretionary function exception to the abrogation of municipal immunity as set forth in Merrill v. City of Manchester, 114 N.H. 722 , 332 A.2d 378 (1974).

1993The city filed a motion to dismiss arguing, among other things, that the plaintiff’s claims were barred by the discretionary function exception to the abrogation of municipal immunity as set forth in Merrill v. City of Manchester, 114 N.H. 722 , 332 A.2d 378 (1974).

1993The plaintiffs contend that the acts and omissions alleged do not constitute discretionary functions, and alternatively, even if they do, former RSA 231:92 (1982) permits suit for a municipality’s failure “to install sufficient signage and guardrails in areas of dangerous embankments.” The superior court ruled that “the decision not to erect warning signs and/or guardrails is not a decision characterized by a high degree of discretion to which the discretionary function exception to municipal liability applies.” In light of our recent decisions in Gardner v. City of Concord, 137 N.H. 253, 258

1993The plaintiffs contend that the acts and omissions alleged do not constitute discretionary functions, and alternatively, even if they do, former RSA 231:92 (1982) permits suit for a municipality’s failure “to install sufficient signage and guardrails in areas of dangerous embankments.” The superior court ruled that “the decision not to erect warning signs and/or guardrails is not a decision characterized by a high degree of discretion to which the discretionary function exception to municipal liability applies.” In light of our recent decisions in Gardner v. City of Concord, 137 N.H. 253, 258

2025See Maryea v. Velardi, 168 N.H. 633, 637-38 (2016).

2025See Tarbell, 157 N.H. at 688 .

2025See Tarbell, 157 N.H. at 688 .

2016Recently, in Farrelly v. City of Concord, 168 N.H. 430, 442 (2015), we noted that, “as our decisions indicate, we have not interpreted [RSA chapter 507-B] as completely occupying the field of municipal immunity so as to preempt the common law doctrine.” We now hold that RSA chapter 507-B does not abrogate the doctrine of discretionary function immunity.

2016Recently, in Farrelly v. City of Concord, 168 N.H. 430, 442 (2015), we noted that, “as our decisions indicate, we have not interpreted [RSA chapter 507-B] as completely occupying the field of municipal immunity so as to preempt the common law doctrine.” We now hold that RSA chapter 507-B does not abrogate the doctrine of discretionary function immunity.

2007See Nusbaum v. Blue Earth County, 422 N.W.2d 713 , 718 n.4 (Minn. 1988).

1999The discretionary function exception “was not designed to cloak the ancient doctrine of [municipal] immunity in modern garb.” Adriance, 687 A.2d at 241 (quotation omitted).

1997Cf. 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”).

1993See State v. Blow, 135 N.H. 640, 643 , 608 A.2d 1309, 1311 (1992).

1993See State v. Blow, 135 N.H. 640, 643 , 608 A.2d 1309, 1311 (1992).

1993Relying on Rockhouse Mountain Property Owners Ass’n v. Town of Conway, 127 N.H. 593, 599-600 , 503 A.2d 1385, 1389 (1986) (Merrill immunity barred claim against the town for its refusal to lay out a roadway), and Hurley v. Hudson, 112 N.H. 365, 369 , 296 A.2d 905, 907 (1972) (planning board’s approval of subdivision plan was discretionary function for which city could not be held liable), the trial court granted the motion to dismiss, ruling: “Like decisions regarding approval of a subdivision plan or the laying out of roadways, a municipality’s decisions with regard to the design of a sidewal

1993Relying on Rockhouse Mountain Property Owners Ass’n v. Town of Conway, 127 N.H. 593, 599-600 , 503 A.2d 1385, 1389 (1986) (Merrill immunity barred claim against the town for its refusal to lay out a roadway), and Hurley v. Hudson, 112 N.H. 365, 369 , 296 A.2d 905, 907 (1972) (planning board’s approval of subdivision plan was discretionary function for which city could not be held liable), the trial court granted the motion to dismiss, ruling: “Like decisions regarding approval of a subdivision plan or the laying out of roadways, a municipality’s decisions with regard to the design of a sidewal

1983See Whitney v. Worcester, 373 Mass, at 217, 366 N.E.2d at 1216 .