Tarbell Administrator, Inc. v. City of Concord, 157 N.H. 678

Summary

The Supreme Court of New Hampshire addresses whether discretionary function immunity bars claims arising from the City of Concord's management and construction of a municipal dam and water system. The court held that immunity barred negligence claims concerning the dam's construction and the City's decision not to lower the reservoir level, but did not bar claims alleging negligent maintenance of drainage systems, trespass, and private nuisance. The court affirmed in part, reversed in part, and remanded.

Holdings

1. Discretionary function immunity barred count III because the City's decision not to remove the flashboards and not to lower the reservoir involved weighing competing economic and social factors and was a basic policy decision involving a high degree of official judgment and discretion.
2. Discretionary function immunity barred count I because the City's decision to construct the dam with Rattlesnake Brook as the sole outlet was a planning decision requiring substantial judgment and the weighing of competing effects.
3. Discretionary function immunity did not bar count II because the claim concerned alleged failure to maintain the drainage system, and the City identified no plan or policy governing that maintenance.
4. Discretionary function immunity did not bar counts IV and V because municipalities may be liable for intentional trespass and private nuisance, including claims alleging a physical invasion or taking of private property.

Questions Presented

1. Whether discretionary function immunity barred Tarbell's negligence claim challenging the City's decision not to remove the dam's flashboards and not to lower the reservoir water level.
2. Whether discretionary function immunity barred Tarbell's negligence claim alleging that the City should have constructed a second outlet for the lake.
3. Whether discretionary function immunity barred Tarbell's negligence claim alleging failure to maintain Rattlesnake Brook and the culverts.
4. Whether discretionary function immunity barred Tarbell's intentional trespass and private nuisance claims based on the City's alleged invasion of Tarbell's property.

Disposition

reversed_and_remanded