Vermont · New Hampshire · Maine

Newsletter

Dear TDLA Members, I am pleased and honored to serve as the 2013 Chair for TDLA. Throughout my involvement in DRI and TDLA, I am constantly reminded of the benefits of practicing law in a small state, with a close knit bar. The same holds true for those practitioners in Maine and New Hampshire. Both the professional and personal relationships we develop are crucial to our continued growth and success as lawyers. I truly appreciate the opportunities and networking that have been part of my legal career to date. To that end, I would like to remind and urge you to insure your younger associates and even partners, get involved and participate in DRI and TDLA. Involvement of the younger bar is important, not only to the future of organizations like TDLA and DRI, but also the continued forward progress of our respective trial bars as a whole. Sign them up as members, encourage them to write articles, and get them to the Annual Meeting! Our tri-state defense bars need continued growth and rely on us as members to make it happen. As we approach the New Year, let’s focus our efforts on bringing along that next generation of lawyers. On behalf of the TDLA Board, I want to extend a sincere thank you to all those who attended the Annual Meeting in Portsmouth this year. We were pleased with the turnout and participation of the three states. Please mark your calendars for next year for September 19 and 20, 2013, we will be sure to put on a stellar show. Also, note, at the request of our members, the format of the Annual Meeting has changed to a Thurs-day night Friday morning event in the hopes that all of you balancing work, life and other commitments, can make it without giving up a full Saturday. The TDLA Board is working toward bringing some great new additions to membership benefits in 2013. We will continue to keep you up to date with periodic newsletters and emails on legal news and issues as they develop. We are also planning to roll out a new Webinar series featuring interesting and current substantive and proce-dural issues. If you haven’t checked it out yet, I encourage you to take a look at the new web-site which features a personal log in and access to the membership database. It can be found at www.tristatedefenselawyers.org.

Fall 2012

Tri-State Defense Lawyers Association

Inside

Messages from State Presidents

NH Civil Procedures

Art of Networking

Maine’s

Highest Court

Annul Meeting Photos

Vermont Supreme

Court Denies

Spring 2014

I hope you enjoy this newsletter. TDLA is having a busy late winter and early spring. We had two well-attended webinars in February. These webinars are an easy and free way to earn CLE credits with topics that are directly related to the defense practice. You do not even need to leave your desk. I hope you consider our webinars when they are offered next year. A lot of appreciation goes out to Elizabeth Hurley who lead both webinars and who supplied the technical wherewithal to get them done.

In the spring, we have the Maine social set for April 3 at Mariner’s Church in Portland. Our CLE program is on trial practice. We have four veterans, John Whitman, Jon Brogan, Liz Germani, and Tica Douglas lined up to answer some of our practical questions about trial work. It is planned to be a fast moving session with audience participation. The social hour afterward is always a lot of fun. I hope you can attend.

The New Hampshire group is setting up a social to occur during the first week of April in Manchester. There will be a CLE, beer and pizza so everyone is looking forward to it.

We are always interested in those who wish to add their energy to TDLA. There are opportunities to write articles which would be accepted at any time. In addition, any member would be more than welcome to give a webinar, allowing them to let participants from three or more states know their area of expertise.

I hope you enjoy the newsletter. Feel free to send me an e-mail if you have any questions or suggestions.

Tom McKeon

A MessAge FroM the ChAirMAn

Development of Maine Law

Clients and NLRA

Winter Maintenance Providers

DON’T PANIC: Diachiara

Portland Clinic For Homeless

The Development of Maine Law Regarding Employer Liability for Torts of Off-Duty Commuting Employees in the Wake of Spencer v. V.I.P.

Joseph L. CahoonRichardson, Whitman,

Large & BadgesPortland, ME

Nearly eight years has passed since the Law Court issued its decision in the case of Spencer v. V.I.P., 2006 ME 120 (hereinafter “Spencer”). In Spencer, the Law Court reversed the Superior Court’s grant of summary judgment in favor of an employer that had been sued as a result of an automobile accident involving an off-duty employee who was driving home from an employer sponsored event. Id. at ¶¶ 2-4. The Spencer dissent, authored by Chief Justice Saufley and joined by Justice Levy, argued that the Spencer decision could serve to unreasonably expand the scope of liability that employers may face for the torts of their commuting employees. Id. at ¶¶ 10-24. The dissent further noted that the decision altered Maine law with regard to vicarious liability for the torts of off-duty commuting employees and took Maine out of step with the historically supported Restatement view. Id. This article seeks to examine the impact of Spencer in the eight years since it was decided.

I. The Spencer Decision

The Spencer litigation arose out of a sad set of facts involving terrible injuries to the Plaintiffs. In short, the employer invited its hourly employees to volunteer at an annual promotional event at a local race track. Id. at ¶ 2. The tortfeasor hourly employee (hereinafter “tortfeasor”) chose to volunteer at the event on his day off. Id. at ¶¶ 2-3. For his volunteer work, the employer gave the tortfeasor $25.00 and a t-shirt. Id. at ¶ 2.

On the morning of the accident, the tortfeasor drove to the race track at approximately 4:30 a.m. Id. at ¶ 3 He performed his volunteer work in approximately one hour and then departed the race track. Id. While driving home, the tortfeasor’s vehicle crossed the center line and collided with a car carrying a family of three. Id. One member of the family was killed and the other two family members were injured. Id.

The estate and other plaintiffs sued the tortfeasor and the employer for personal injuries and wrongful death. Id. at ¶ 4. The employer moved for summary judgment, “arguing that, inasmuch as [the tortfeasor] was not acting within the scope of his employment, [the employer] could not be held vicariously liable.” Id. The Superior Court granted the motion, which led to the appeal that is the subject of Spencer. Id. (explanations added) In a 3-2 decision, the Law Court reversed the Superior Court’s grant of summary judgment, holding that, under certain facts, an employer may be held liable for the tortious activities

of its employees as the employees are travelling to or from work. Id. at ¶¶ 7-9. To support its decision, the Law Court noted that a fact finder could hold that the employee’s travel to and from work “occurred substantially within the authorized time and space limits” of employment because the employer would have reasonably expected travel to occur directly before and after the employee’s attendance at the workplace. Id. at ¶ 8. The Law Court further noted that the employee’s travel could be found “to have been actuated” by a purpose to serve the employer “inasmuch as [the travel] was necessary” to perform the employee’s work. Id. at ¶ 9 (explanations added). Lastly, the Law Court noted that a $25 payment for “expenses including gas” could support a finding that the travel was part of the task that the employee was employed to perform, “inasmuch” as the $25 fee amounted to compensation. Id. at ¶ 7.

As noted above, the vigorous dissent by Chief Justice Saufley noted that Spencer changed Maine law. Id. at ¶ 10. The dissent further opined that “[c]ourts have universally acknowledged that, as a general rule, an employee is not within the scope of employment while commuting to and from work” and that the dissent’s position was consistent with the Restatement because a commuting employee “ordinarily is not subject to his employer’s control and does not act with a purpose to serve the employer.” Id. at ¶ 16.

II. The Law Before Spencer

Before Spencer, Maine unquestionably applied the principles of the Restatement (Second) of Agency to determine the limits of imposing vicarious liability on an employer. Dragomir v. Spring Harbor Hospital, 2009 ME 51,¶ 12 (citing Mahar v. StoneWood Transp., 2003 ME 63, ¶ 13. “Specifically, an employer may be liable for the actions of its employee if the actions were taken ‘in the scope of employment.’” Id. Section 228 controls the question of whether the employee was in the course of his employment and reads as follows:

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;(b) it occurs substantially within the authorized time and space limits;(c) it is actuated, at least in part, by a purpose to serve the master, and(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Restatement (Second) of Agency § 228. Though never recognized in the tort context by the Law Court prior to Spencer, courts from other jurisdictions have fashioned a

The Development of Maine Law - cont’d.

“coming and going” rule, which generally holds that employers will not be held liable for the torts of their employees while travelling to and from work.1 Spencer, ¶ 16 (dissent). The Spencer dissent suggested that the “coming and going” rule was both universally accepted by courts of other jurisdictions and consistent with the Restatement view that Maine applied prior to Spencer. Id. It is the Spencer court’s failure to adhere the common interpretation of the Restatement and the “coming and going” rule that caused the dissent to argue that Spencer reflected a change in Maine law.

I. The Law After Spencer

Surprisingly, Spencer has influenced few decisions in the eight years since it was published. However, Justice Warren commented on the new Spencer standard in the case of Ruotolo v. Paul, 2008 WL 4106428 (Me. Super. 2008) (Warren, J.). In Ruotolo, Justice Warren declined to grant summary judgment for a defendant employer in a case where an employee was involved in an automobile accident in a company vehicle while off duty and driving home from work. Id. In reaching his decision, Justice Warren noted as follows:

In the Spencer case, the Law Court appeared to relax the “going and coming” rule by suggesting that, under the facts of that case, there was a disputed issue for trial as to whether an employee was acting within the scope of employment when traveling in his own vehicle on his way back from volunteering at a promotional event for his employer. This is potentially a stronger case for vicarious liability than Spencer because in this case, [tortfeasor employee] was driving a vehicle owned by his employer with his employer’s name displayed on the side of the vehicle and the vehicle was used to transport work tools for the employer’s purposes…There is at least a disputed issue for trial in this case whether, even if [employer] did not in fact control [tortfeasor employee] once he was off duty and driving home, [employer] at least had the right to control [tortfeasor employee’s] use of the truck which [employer] owned, which displayed [employer’s] name on the side, and which carried tools for [employer’s] work purposes. There is also a disputed issue for trial as to whether [employee’s] use of the truck to travel to and from jobsites served a purpose of his employer

Id. (explanations added). Warren’s decision is clear in its indication that at least some Maine trial judges will not apply the traditional view of the “coming and going” rule in light of Spencer. It remains to be seen if future Maine court decisions will reject the “coming and going” rule in its entirety.

One interesting aspect of the Ruotolo decision is that it focuses its vicarious liability inquiry into whether the employer has the ability to control the manner of use of the tortfeasor’s vehicle. Id.

1 There are certain exceptions to the “coming and going” rule, which will not be considered in this article.

This examination of the element of control is in line with traditional thinking on vicarious liability issues, including issues related to the “coming and going” of employees. See Spencer ¶¶ 21-24 (dissent). Ruotolo’s focus on control is especially interesting as the Spencer summary judgment was reversed even though the Spencer employer did not have any control over the employee’s method or manner of commute. In short, Ruotolo does not rely on the logic of Spencer majority, but rather focuses on a logical scheme that apparently had little influence on the Spencer majority’s position.

More recently, the Law Court noted that § 7.07 of the Restatement (Third) of Agency may provide an appropriate framework for evaluating vicarious liability issues. Picher v. Roman Catholic Bishop of Portland, 2009 ME 67, ¶ 32. Section 7.07 focuses heavily on the element of “control” as a hallmark for vicarious liability. Given the Picher dicta, it appears that the Spencer fact pattern and logic should be reexamined in order to clarify Maine law with regard to employer liability for the torts of off duty commuting employees.

II. Conclusion

The problem with Spencer for practitioners is that the Law Court majority does not elaborate on the standard that trial courts should apply when evaluating questions of employer liability for the torts of off duty commuting employees. However, it is important to note that Spencer and Ruotolo did not make any specific findings as to whether the actions of the employees actually were “in the course” of their employment. Both decisions avoided such holdings by simply noting that there were genuine issues of fact which precluded entry of summary judgment. In light of these holdings, practitioners representing employers should be aware that it may be difficult to attain summary judgment in cases where the traditional formulation of the “coming and going” rule would have insulated an employer from liability.

It seems probable that the Law Court will eventually take the opportunity to clarify the scope and future application of Spencer. Until that happens, Maine practitioners will face an uncertain standard for employer liability for the torts of their off-duty commuting employees.

Why should defense lawyers and litigators care about the National Labor Relations Act (the “Act”)? After all, we defend our clients at trial, so the activities of an administrative agency typically associated with union issues seems pretty far-afield from our usual practice areas. But employers should know that in a time of shrinking union membership, the National Labor Relations Board (the “Board”) is increasingly focused on the policies and practices of employers in non-union settings. Prudent businesses should review their employee policies with that in mind. The Act has a broad jurisdictional mandate, and generally covers all private sector employees working for employers whose business impacts interstate commerce. Section 7 of the Act protects employees’ rights to act together, for the purposes of mutual aid and protection, and to improve working terms and conditions. Those activities do not necessarily require union involvement, and are “protected concerted activities.” Under Section 8 of the Act, it is an unfair labor practice for employers to interfere with Section 7 rights. Some of the areas in which employers need to be aware of increasing Board oversight include social media policies, employment at will statements, codes of conduct, gossip policies, and issues surrounding confidentiality in workplace investigations. The Board’s involvement in social media has already received a fair amount of publicity. In 2011 and 2012, the then-acting General Counsel for the Board issued several summaries of NLRB social media cases, reviewing cases in which employers attempted to regulate the use of social media in the workplace. Issues including disclosure of confidential information, protection of employer information, and general conduct were all addressed, and often related to employee Facebook, Twitter and You-tube postings. In most cases, at least some portion of each social media policy examined was deemed to be in violation of the Act, because it was overly-broad and could reasonably be interpreted as chilling the rights of employees to exercise their Section 7 rights. The cases did not usually involve traditional union issues, and instead typically focused on complaints about coworkers or supervisors – most often expressed through harsh name-calling. Posting those comments on social media was deemed to be protected activity where it could be interpreted as a conversation between coworkers about the conditions of employment, even where there was swearing and abusive language. While employees may lose Section 7 protections if rising to a level of “opprobrious conduct,” the mere fact that language used in postings is inappropriate or insulting when directed towards coworkers or supervisors will probably not rise to that level. The Board has reviewed conduct policies in the same way. For example, a dress code that banned the display of vulgar/obscene phrases, offensive remarks, or clothing displaying words or images derogatory to the company, was deemed to be overly broad when, in a collective bargaining negotiation, a union member was sent home for wearing a shirt that said “slave.” Other conduct policies, generally prohibiting offensive language, may be deemed to be overbroad as set forth above. However, if a policy is narrow in scope, and is supported by clear examples, it may pass an NLRB review. A recent NLRB decision deemed a “no gossip” policy to be a violation of the Act, when an employee was told she could not discuss events at work outside of her chain of command. In that case, there had been discussions between employees about job security following some layoffs. The company has previously implemented a “no gossip” policy and terminated an employee for talking about those issues at work. The NLRB deemed the policy to overly broad. Employers should also be careful in the use of employment at will statements and statements involving the confidentiality of workplace investigations. Traditionally, such statements were considered standard – but not anymore. The well-publicized Banner Health decision changed the way in which employers utilize confidentiality provisions in workplace investigations. It is now impermissible to have a blanket confidentiality rule, and instead the burden is on the employer to show the need for confidentiality (typically to preserve evidence or prevent collusion or retaliation), and to limit the scope or duration of confidentiality. Moreover, “at will” statements that

essentially “freeze” employee status are likewise overbroad. Per the NLRB, employment status can in fact change, if, for example, employees decide to unionize. Thus, an employment at will statement broadly prohibiting any change in status is too broad, whereas a better crafted statement will allow for some element of change. These are complicated and evolving issues, touched on briefly here to alert TDLA members who advise employers, so they will have some familiarity with the emerging trends when it comes to NLRB oversight and activity.

WHAT YOUR CLIENTS NEED TO KNOW ABOUT THE NLRAChristopher J. Pyles

Sulloway & Hollis, P.L.L.C., Concord, NH

PORTLAND PRO BONO CLINIC fOR HOMELESS TO LAUNCH IN APRIL

Thomas P. MarzakThompson & Bowie LLP.

Volunteer attorneys in the greater Portland area will be staffing a first-of-its-kind legal clinic for the homeless in collaboration with Preble Street Resource Center beginning in April. With the participation of Pine Tree Legal Assistance, the Volunteer Lawyers Project, the American Bar Association and several area law firms, the clinic will help Portland’s homeless access legal assistance on a weekly basis.

People who are homeless often face a number of legal problems that need to be addressed or resolved

before they can successfully stabilize their lives. The Maine Homeless Legal Project clinic will increase legal resources for these people. After working with a social services support person to identify legal issues, clients will be given appointments at the MHLP clinic where they will consult with a pro bono lawyer. If a client has a legal issue that could benefit from further legal help, then extended representation will be offered.

Typical legal issues for people who are homeless include unpaid child sup-port, reestablishing acceptable identification and benefits - although, there will likely be a variety of other issues. Volunteer attorneys will learn how to address some of these problems at a CLE training in early March, funded by the ABA Section of Litigation. The clinic is based on a model originally implemented in New Orleans by Judge Jay Zainey of the United States District Court for the Eastern District of Louisiana. Nancy Degan, the chair-elect of the ABA Section of Litigation, is taking the project nation-wide and Portland was selected as one of a limited number of cities in which to pilot the program. Zainey and Degan recently traveled to Portland as part of a kick-off event at which several justices at all levels of Maine’s court system spoke about the importance of pro bono service.

The response from Portland-area firms and attorneys has been enthusiastic thus far. The following firms have each already committed to staff the clinic for a month: Bernstein Shur; Thompson Bowie; Murray Plumb & Murray; Petrucelli, Martin & Haddow; the Offices of Joe Bornstein; Drummond & Drummond; Pierce Atwood; Verrill Dana; Richardson, Whitman, Large & Badger; Curtis Thaxter; Drummond Woodsum; Norman, Hanson & DeTroy; and counsel from UNUM. The clinic is also offering opportunities for smaller firms or solo practitioners to cooperate to staff a month or to sign up for shorter time periods. Any attorneys or firms interested in participating should contact David Soley at 774-1200 or Tom Marczak at 774-2500.

As civil defense lawyers, most of us are familiar with the general fact pattern: a plaintiff slips on ice while walking through a parking lot. She sues the property owner, and also goes after the snow plow company the property owner hired to maintain the lot.

Courts in Maine, Vermont, and New Hampshire have considered whether snow removal contractors can owe plaintiffs a duty of care in these circumstances – although with disparate outcomes.

Vermont – Snow Plow Contractors May Owe a Duty of CareThe Vermont Supreme Court held that a snow plow contractor

owes a duty of care to third party plaintiffs in Perry v. Green Mountain Mall, 177 Vt. 109; 857 A.2d 793 (2004). In Perry, the plaintiff worked at a shopping mall. She slipped on some ice in the mall’s parking lot. The mall’s owner had a contract with a snow plow company to plow and sand the lot. The plaintiff sued both the owner and the snow plow company.

The Court held that the contractor owed a duty of care to the plaintiff pursuant to the standard articulated in Restatement (Second) of Torts § 324A (1965), which states:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) His failure to exercise reasonable care increases the risk of such harm, or

(b) He has undertaken to perform a duty owed by the other to the third person, or

(c) The harm is suffered because of reliance of the other or the third person upon the undertaking.

The Court noted that other jurisdictions, including Connecticut, Indiana, and Ohio, had all cited § 324 as the basis for similar holdings. Id. at pp. 796 - 77.

Maine – Snow Plow Contractors Do Not Owe a Duty of Care Unless the Contractor Affirmatively Created the Dangerous Condition

Conversely, in Davis v. R.C & Sons Paving, Inc., 2011 ME 88, 26 A.3d 787 (2011), the Supreme Judicial Court of Maine held that the contractor did not owe a duty of care, because it had not created the dangerous condition. In that case, the plaintiff worked for a bank. She slipped on ice in the bank’s parking lot. The bank had contracted with the defendant to plow and sand the lot. The defendant was actually present when the plaintiff fell– it had completed plowing, but had not yet sanded.

The plaintiff presented two arguments in favor of her position that the snow plow contractor should be liable. First, she asserted that she was an intended third-party beneficiary of the contract between the defendant and the bank. The Court held that this argument was

immaterial, because her claim sounded in tort and not contract.

Second, she argued that the defendant owed her a duty of care because it had created the dangerous condition by failing to sand the area after plowing it. Although the Court agreed that a non-possessor of land who creates a dangerous condition may be liable, it held that the defendant did not create the condition at issue. The Court noted that given the realities of “harsh” Maine winters, “requiring landowners or non-possessors to fully protect against hazards created by snow and ice [is] simply impracticable.” Id. at pp. 792 - 93 (citations omitted).

The majority opinion did not reference §324. However, two justices dissented, citing § 324 and asserting that the defendant “had a duty to reasonably respond to a foreseeable danger posed to invitees by a continuing snow or ice storm.” Id. at p. 793.

New Hampshire – Superior Courts have held that Snow Plow Contractors Owe No Duty of Care

The New Hampshire Supreme Court has yet to consider the issue. Some Superior Courts have found that a duty does exist. However, at least two separate Superior Courts have granted motions to dismiss snow plow contractor-defendants.

In Dunshee v. Burhoe, Docket No. 215-2011-CV-526 (Nov. 2, 2012), the Grafton County Superior Court held that the defendant plow company owed no duty to the plaintiff. The Court found that there was no privity of contract between the plaintiff and the defendant, and that the defendant’s failure to plow in a timely manner did not create an unreasonably dangerous condition. The Court noted opinions from other jurisdictions – including Michigan, New York, Wisconsin, Illinois, and the Davis opinion from Maine – which held that snow plow contractors did not owe a duty of care when the contractor did not create the condition.

Similarly, in Anderson v. Demoulas, 04-C-0050, 05-C-0008 (July 1, 2005), the Cheshire County Superior Court granted dismissal because the plaintiff did not allege that the defendant breached any duty, other than its duty to perform under the contract. Because the plaintiff was not a party to that contract, and there was no “unreasonably dangerous” risk of harm created by the defendant’s conduct, the defendant did not owe the plaintiff any duty of care.

Conclusion Although Maine, New Hampshire, and Vermont all have

winter climates ripe for hazardous conditions, their respective courts do not share the same views about the legal duty of snow plow contractors to prevent and/or remedy icy conditions. We can safely say, however, that slip and fall accidents will both continue to occur and to be litigated in all three states.

WINTER MAINTENANCE PROVIDER’S DUTIES TO THIRD PARTY PLAINTIffS

Clara E. Lyons, Getman, Schulthess & Steere in Manchester, NH

DON’T PANIC: Dichiara Is Not A Game-Changer for Municipal Immunity

Samantha D. Elliott and Erik G. Moskowitz, Gallagher, Callahan & Gartrell, P.C., Concord, NH.

The New Hampshire Supreme Court’s decision in Dichiara v. Sanborn Regional School District decided in November 2013 did not have the far-reaching affect claimed in a recent New Hampshire Bar Journal article; nor does it have the constitutional or equitable consequences the article suggests. Dichiara is not a game-changer. It did not contain any surprises, it did not expand the statutory immunity that has been on the books since 1975, and it mirrored the New Hampshire Supreme Court’s earlier analysis of the statute. Immunity under RSA 507-B is still limited to certain types of claims, is still trumped by other statutes providing causes of action, and still offers protection to municipal employees.

In the Dichiara case, a high school basketball player sued the Sanborn Regional School District in negligence for damages associated with a broken arm he suffered during a basketball practice, claiming that the basketball drill in which he was participating at the time of his injury was outdated and dangerous. The school district moved for and was granted summary judgment on the basis that RSA 507-B:2 limits the types of negligence actions that can be maintained against certain governmental entities, including school districts. RSA 507-B:2, titled “Liability for Negligence,” provides in part that governmental units may be held liable in actions to recover for bodily injury, personal injury, or property damage “arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises.”

Dichiara did not argue on appeal that RSA 507-B was unconstitutional. He argued only that RSA 507-B:2, the section of the statute that permits certain types of negligence claims, should be read to permit all negligence claims. Essentially, the plaintiff maintained that, under RSA 507-B:2, a governmental unit is liable for bodily injuries “caused by its fault or by fault attributable to it,” regardless of any connection to a motor vehicle or premises.

The Supreme Court found that the sentence structure as interpreted by the School District, rather than as by Dichiara, was consistent with a plain-language interpretation and did not lead to an absurd result. The Supreme Court held that Dichiara’s negligence claims were barred by the statute because they did not have a sufficient nexus with any motor vehicle or premises.

The Dichiara decision does not “broadly expand” municipal immunity. Instead, it is consistent with the Court’s interpretation of 507-B:2 in Chatman v. Strafford County, 163 N.H. 320 (2012) and Farm Family Casualty Ins. Co. v. Town of Rollinsford, 155 N.H. 669 (2007). In both of those prior cases, the Court analyzed whether the plaintiffs’ negligence claims had arisen out of the ownership, occupation, maintenance or operation of a motor vehicle or premises. That analysis determined whether immunity applied. There was no outcry after those opinions were issued regarding the interpretation or the constitutionality of the statutory immunity.

Nor is there any valid New Hampshire precedent calling into question the Supreme Court’s statutory analysis in Dichiara. The Court did not “ignore” the federal case of Farrelly v. City of Concord, Civil No. 10-cv-583-LM (D.N.H. Oct. 2. 2012). Interestingly, the portion of the Farrelly opinion quoted in the Bar Journal article was vacated by the federal judge who originally issued it. In fact, the judge vacated her order on the very ground that her statutory interpretation was novel and therefore better left to the state courts to decide in light of her decision to dismiss all pendant federal claims.

Contrary to the Bar Journal article, the Dichiara decision also properly analyzed the statutory language in light of its historical context. Merrill v. City of Manchester abolished the judicially-created municipal immunity for reasons of policy - not on constitutional grounds - and invited the legislature to take action, even delaying the effective date of the decision for roughly six months. The legislature responded by enacting RSA 507-B. This historic perspective, coupled with the language of

RSA 507-B:5 (which provides that “[n]o governmental unit shall be held liable in any action to recover for bodily injury, personal injury or property damage except as provided by this chapter or as is provided or may be provided by other statute”) supports the Court’s interpretation of 507-B:2 as an exception for certain negligence cases to the broader statutory immunity provided by 507-B:5.

Panic is unwarranted. The immunity under RSA 507-B does not apply in all cases. First, it applies only in cases for bodily injury, personal injury, and property damage as those injuries are defined in RSA 507-B:1. For instance, claims for lost wages or damage to real property are unaffected by the statute. Second, the statutory immunity does not apply if liability is provided for by RSA 507-B or any other statute. Tort claims are permitted by other state statutes, such as RSA 507-B:2, and by federal statutes, such as 42 U.S.C. § 1983 (which frequently provides claims for excessive force, false arrest, and malicious prosecution). Third, RSA 507-B:4, IV allows claims against governmental employees for intentional torts unless those employees were acting in the scope of their employment and in good faith. The limited immunity conferred by RSA 507-B:4, IV upon the individual employees of governmental entities mirrors in execution the immunity the Supreme Court suggested the State should adopt in its 1985 Opinion of the Justices, 126 N.H. 554, 564 (1985). It is difficult to see how this framework could be deemed unacceptable as applied to municipalities but preferred by the Court as applied to the State. RSA 507-B:4, IV strikes an appropriate balance between protecting individual employees from liability and providing recourse to citizens who are damaged by the bad faith conduct of governmental actors. The Bar Journal article expresses the concern that these municipal employees are left out in the cold by RSA 507-B immunity, but any concern should be allayed by the fact that individual statutory immunity is denied only if they are acting in bad faith or outside the scope of their employment. In such cases, it hardly seems appropriate to require the governmental employer to provide coverage.

Finally, 507-B is not unconstitutional. For decades prior to Merrill, common law municipal immunity attempted to immunize governmental entities from liability for governmental functions while exposing them to liability for proprietary functions. Put simply, municipalities were immune when they acted as municipalities but not immune when they acted as citizens.

When judicially-created immunity was abrogated by the Court, the legislature answered the Court’s invitation to act by creating a statutory scheme that attempted to preserve the governmental-proprietary distinction. Municipalities are presumed to be immune from respondeat superior liability for certain intentional torts because they cannot insulate themselves from liability by refusing to perform functions that expose them to a heightened risk of those tort claims. For instance, a governmental entity cannot avoid exposure to claims for false arrest by refusing to arrest criminals. Municipal employees are likewise immune if they act in good faith and in the scope of their employment in performing those necessary governmental functions.

This type of immunity is constitutional as it accomplishes important governmental objectives; it preserves fiscal resources and protects the government from liability for undertaking tasks that only it can perform. Having invited the legislature to act in the wake of Merrill, the Supreme Court should respect the legislative and executive discretion reflected by the statute.

All immunities create classes of plaintiffs with limited rights to recovery—ask anyone who has been injured on a New Hampshire ski slope. Creating classes alone does not render an immunity unconstitutional. RSA 507-B is constitutional because it is substantially related to important government objectives. Nothing in the Dichiara decision changes that.

TRI-STATE DEFENSE LAWYERS ASSOCIATION

Plan To Attend

Annual TDLA Spring CLE Course and Social

April 3, 2013 Mariner’s Church

368 Fore St., Portland CLE: 4:00 p.m. - 5:00 p.m. Social: 5:00 p.m. – 6:00 p.m.

Feel free to attend only one event.

The fastest CLE in Maine.

PRACTICAL PROBLEMS IN TRIAL PRACTICE – -a fast moving panel discussion looking at trial practice from a defense

perspective.

Featuring our own:

John Whitman Martica Douglas Jonathan Brogan

Elizabeth Germani Cost: Members: $15 Members from NH, VT, or Augusta and North: Free Non-members: $35 Non-members who sign up as first time members with this RSVP: Free (Allows you to receive a free one year member with DRI) SOCIAL: Free. Cash bar. Appetizers will be provided.

For Registration Information visit the TDLA website at www.tristatedefenselawyers.org or email tmckeon@rwlb.com

Publisher: Peggy L. Schultz

This newsletter is a publication produced by the TDLA for the use of attorneys in Maine, New Hampshire and

Vermont. Articles should not be re-printed without the permission of the authors. The TDLA welcomes submissions, announcements and recommendations for its next newsletter. Please contact us at:

Tri-State Defense Lawyers Association ■ 304-344-1611 ■ www.tristatedefenselawyers.org

Peggy L. Schultz, Executive Director

2014 Annual Meeting — Plan to Attend

DRI OfficersPatricia Orr, DRI VT Regional Director

Richard Tucker, DRI ME State RepresentativeChristopher Poulin, DRI NH State Representative

2013-2014 TDLA Officers

Registration form can be obtained by going to the TDLA website Home Page at www.tristatedefenselawyers.org or by contacting Peggy Schultz, Executive Director at pschultz@tristatedefenselawyers.org

TDLA 8th Annual Meeting

Residence InnPortsmouth, NH

September 18 & 19, 2014

Thomas R. McKeon, TDLA Chair

Thomas R. McKeon, Maine PresidentPaul Catsos, Maine Vice President

Elizabeth L. Hurley, New Hampshire PresidentChristopher Pyles, New Hampshire Vice President

Matthew S. Borick, Vermont PresidentAndy MacIlwaine, Vermont Vice President

Bonnie B. Shappy Immediate Past TDLA Chair and Vermont President