New Hampshire is a textbook example of how disjointed common-law and statutory reforms can create dysfunction. Unlike states that have enacted a uniform tort claims act that jointly resolves questions of state and municipal liability, New Hampshire law addresses state and municipal liability separately. 1
The end result is a system in which governmental immunity is broadly granted, governmental liability is largely limited to instances of negligence, and victims of constitutional violations have little recourse outside of common-law remedies.
No Constitutional Torts and Broadly Granted Immunities
While the New Hampshire Supreme Court has acknowledged that it has the power to create a common-law damages remedy for state constitutional violations, it has said that it will do so only on a case-by-case basis, and not “where an established statutory, common law, or administrative remedy is adequate.” 2
New Hampshire municipalities are liable for certain instances of negligence and can be held vicariously liable for intentional torts of employees committed in bad faith. Municipal liability for negligence is limited to cases involving “bodily injury, personal injury or property damage” caused by municipal motor vehicles or occurring on municipal premises. 3
The New Hampshire Supreme Court struck down the legislature’s attempt to grant absolute immunity to municipalities for intentional torts of public employees, holding that municipalities must be liable for intentional torts of employees when the municipal actors do not have “a reasonable belief in the lawfulness of their conduct.” 4
Municipal employees who are sued in their personal capacities enjoy common-law immunity for “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.” 5
In some cases, when a municipal official enjoys official immunity, the municipal employer will enjoy vicarious immunity. 6
For negligence claims, New Hampshire provides a limited waiver of state sovereign immunity that mirrors the doctrine of respondeat superior. 7
Like municipalities, the State is liable only for intentional torts and only when the state actors do not have a reasonable belief in the lawfulness of their conduct. 8
New Hampshire provides broad statutory immunity for state officials. The state’s statute governing state official liability includes a broad policy statement designed to extend the State’s sovereign immunity to all “officers, trustees, officials, or employees of the state or any agency thereof acting within the scope of official duty,” whether arising against them in their “personal capacity or official capacity,” provided they were not acting in a “wanton or reckless manner.” 9
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