Bradford Dutton v. Town of Salem

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0081, Bradford Dutton v. Town of Salem,
the court on May 22, 2015, issued the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
plaintiff, Bradford Dutton, appeals the Superior Court’s (McHugh, J.) grant of
summary judgment in favor of the defendant, the Town of Salem (Town), on his
action alleging negligence, nuisance, and trespass arising out of damage to his
residence caused by trees owned by the Town that fell onto his property.
Dutton argues that the trial court erred when it found that discretionary
function immunity barred his negligence claim. The Town cross-appeals,
arguing that the trial court erred when it failed to rule that the Town had
immunity under RSA 507-B:2-b (2010). Alternatively, the Town argues that
summary judgment in its favor was warranted because the trees fell as a result
of an “act of God.” See Goddard v. Company, 82 N.H. 225, 227 (1926). We
affirm in part, reverse in part, and remand.

The following facts are undisputed. Dutton owns property in Salem. In
2008, the Town acquired the lot adjacent to Dutton’s lot (Town property), by
tax deed. A powerful winter storm occurred in February 2010, producing high
winds and heavy snow. During the storm, six trees fell onto or near Dutton’s
residence. Of the six trees, at least two trees from the Town property and at
least two trees from Dutton’s property contributed to the severe damage to his
residence. He later filed this action, sounding in negligence, nuisance, and
trespass, against the Town and a prior owner, seeking compensatory damages
for the losses to his real and personal property.

The Town moved for summary judgment, arguing that it was entitled to
immunity because municipal decisions regarding whether to acquire property
by tax deed or whether to hire a tree expert to inspect or remove trees are
decisions concerning the “allocation of resources as to municipal property,
[which] are often subject to . . . discretionary function immunity.” The Town
further maintained that it had immunity under RSA 507-B:2-b because the
sole cause of the damage to Dutton’s residence was a winter storm that
“produced hurricane-force wind[s]” and “uprooted” healthy trees. It also
argued that it had immunity because the damage to Dutton’s residence was
caused by an “act of God.” See Goddard, 82 N.H. at 227. With respect to
Dutton’s trespass and nuisance claims, the Town argued that Dutton failed to
allege an intentional act for purposes of trespass, and that nuisance does not
apply to “conditions of purely natural origin.”
 In opposition to the Town’s motion for summary judgment, Dutton
argued that the Town is not entitled to discretionary function immunity
because whether the Town was acting pursuant to a plan or policy presented
an issue of material fact. Dutton also maintained that, because the storm was
not the sole cause of the damage, the Town is not immune under RSA 507-B:2-b
or the “act of God” defense. In support of his claim that the Town contributed
to the damage, Dutton submitted an expert report from an arborist, who
opined that one of the trees on the Town property that fell onto Dutton’s
residence was dead. Finally, Dutton opposed the Town’s motion for summary
judgment as to his nuisance claim.

The trial court denied summary judgment with respect to immunity
under RSA 507-B:2-b. However, it entered summary judgment in favor of the
Town with respect to discretionary function immunity, and with respect to the
trespass and nuisance claims. As to discretionary function immunity, the trial
court found that the Town “represent[ed] that [its] decisions [regarding
maintenance of the Town property] involved weighing financial resources,” and
that “[t]hese are the type of decisions entitled to [such] immunity.” Dutton filed
a motion for reconsideration, arguing that the Town provided no evidence that
it had a plan in place relating to trees on Town property. The trial court denied
the motion, and this appeal followed. We note that Dutton does not appeal the
grant of summary judgment as to his nuisance and trespass claims.

“We review de novo the trial court’s application of the law to the facts in
its summary judgment ruling.” Prolerized New England Co. v. City of
Manchester, 166 N.H. 617, 622 (2014) (quotation omitted). “We consider all of
the evidence presented in the record, and all inferences properly drawn
therefrom, in the light most favorable to the non-moving party.” Id. (quotation
omitted). “If our review of that evidence discloses no genuine issue of material
fact and if the moving party is entitled to judgment as a matter of law, then we
will affirm the grant of summary judgment.” Id. (quotation omitted).

On appeal, Dutton argues that the trial court erred when it ruled that the
Town is entitled to discretionary function immunity on his negligence claim.
Dutton asserts that genuine issues of material fact exist including, among
other things, whether the Town actually had a plan or policy for the inspection
or removal of trees on Town property. He maintains that the Town did not
submit evidence showing that it weighed financial resources based upon a
“high degree of official judgment or discretion” as required for discretionary
function immunity. Tarbell Adm’r, Inc. v. City of Concord, 157 N.H. 678, 683-
84 (2008) (quotation omitted). In response, the Town argues that “[t]he trial
court correctly ruled that the Town’s decisions regarding the expenditure of
time and resources to inspect and maintain property acquired by tax lien ‘are
the type of decisions entitled to discretionary immunity.’”

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 The Town cross-appeals, arguing that the trial court erred in denying
immunity under RSA 507-B:2-b. Alternatively, the Town argues that the trial
court should have entered summary judgment on the Town’s “act of God”
defense because there is no genuine issue of material fact as to causation. See
Goddard, 82 N.H. at 227.

We first consider whether the Town is entitled to discretionary function
immunity. Discretionary function immunity is an exception to municipal
liability “for acts and omissions constituting (a) the exercise of a legislative or
judicial function, and (b) 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.” Tarbell Adm’r, Inc.,
157 N.H. at 683-84 (quotation omitted). Further, “[w]hen the particular
conduct which caused the injury is one characterized by the high degree of
discretion and judgment involved in weighing alternatives and making choices
with respect to public policy and planning, governmental entities should
remain immune from liability.” Id. (quotation omitted). “[T]he discretion or
judgment must attach to decisions requiring consideration of public policy or
planning to be protected.” Id. (quotation omitted). Specifically, we distinguish
between “policy decisions involving the consideration of competing economic,
social, and political factors” and “operational or ministerial decisions required
to implement the policy decisions.” Id. (quotations omitted).

We cannot say on the record before us that, with respect to the removal
or inspection of trees on the Town property, the Town engaged in conduct
involving a “high degree of official judgment or discretion.” Id. at 684
(quotation omitted). In Tarbell, we reversed the trial court’s grant of summary
judgment in favor of the City of Concord, because “the City [did] not assert[]
and the trial court did not find that the City [had] a plan or policy concerning
the maintenance of the [subject] drainage systems.” Id. at 687.

Here, the Town did not submit any evidence to demonstrate that it had a
plan or policy in place concerning trees located on tax-deeded properties or,
even generally, on Town property, which involved the weighing of “competing
economic, social, and political factors.” Id. at 685 (quotation omitted)
(concluding that, in making the decision whether or not to adjust the water
level in the reservoir, the City of Concord “had to weigh competing economic
and social factors, including the expensive costs of pumping water from the
[river] to the [lake] in the event [of a] lack of [future] rainfall and protecting
downstream property owners” (quotation omitted)). To accept the Town’s bare
assertion — in the absence of evidence of an actual plan or policy — that
discretionary function immunity should apply to any Town decision involving
“allocation of limited municipal resources,” would, in essence, create blanket
immunity. Accordingly, we reverse the entry of summary judgment on the
basis of discretionary function immunity.

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 We next turn to the Town’s cross-appeal, and consider whether the trial
court properly ruled that the Town is not entitled to immunity under RSA 507-
B:2-b. RSA 507-B:2-b provides in pertinent part:

a municipality . . . shall not be liable for damage arising from
insufficiencies or hazards on any premises owned, occupied,
maintained, or operated by it, even if it has actual notice of them,
when such hazards are caused solely by snow, ice, or other
inclement weather, and the municipality’s . . . failure or delay in
removing or mitigating such hazards is the result of its
implementation, absent gross negligence or reckless disregard of
the hazard, of a winter or inclement weather maintenance policy or
set of priorities with respect to such premises, adopted in good
faith by the official responsible for such policy. All municipal . . .
employees, officials, and agents shall be presumed to be acting
pursuant to such a policy or set of priorities in the absence of proof
to the contrary.

(Emphasis added.) The trial court denied the Town’s motion for summary
judgment pursuant to RSA 507-B:2-b, concluding that whether the damage
was “caused solely by inclement weather is a factual issue for the jury to
decide.” See Cloutier v. City of Berlin, 154 N.H. 13, 23-24 (2006) (construing
the identical language in RSA 231:92-a (2009)). We agree with the trial court.

We have held that “a landowner who knows or should know that [its] tree
is decayed or defective and fails to maintain the tree reasonably is liable for
injuries proximately caused by the tree, even when the harm occurs outside of
[its] property lines.” Pesaturo v. Kinne, 161 N.H. 550, 555 (2011). Here,
Dutton’s expert opined that the first tree that fell from the Town property onto
Dutton’s residence “had no sap in the outer sapwood,” which “would indicate
that this . . . tree was dead.” Additionally, he observed that the tree “broke off
approximately 30 [feet] above the ground” and that “[t]he top of this tree was
dead” and “rotted.” Thus, given the record before us, including the opinion of
Dutton’s expert, we conclude that a genuine issue of material fact exists as to
whether the storm was the sole cause of the damage to Dutton’s residence.
Accordingly, we affirm the trial court’s denial of summary judgment on the
basis of immunity under RSA 507-B:2-b.

Finally, the Town argues that the trial court erred when it failed to rule
upon the viability of the Town’s “act of God” defense. “To excuse [the Town] on
this ground, it must appear that its fault was not a contributing cause for the
wrong complained of.” Goddard, 82 N.H. at 227. However, “[a]n occurrence is
not an act of God excusing human accountability unless resulting from a cause
which operates without interference or aid from man.” Id. (quotation omitted).
For the same reasons that we cannot determine whether the storm was the sole
cause of the damage to Dutton’s residence under RSA 507-B:2-b, we cannot

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determine, on the record before us, whether the storm was an “act of God” that
damaged Dutton’s residence “without . . . aid from” the Town. Id. Accordingly,
we conclude that the trial court did not err when it declined to enter summary
judgment in favor of the Town in regard to its “act of God” defense.

Affirmed in part; reversed
in part; and remanded.

DALIANIS, C.J., and HICKS, CONBOY, LYNN, and BASSETT, JJ.,
concurred.

Eileen Fox,
Clerk

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