Judith Tompson v. Rockingham County Sheriff's Office

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0182, Judith Tompson v. Rockingham
County Sheriff’s Office, the court on September 18, 2015, issued
the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The plaintiff, Judith Tompson, appeals the order of the Superior Court
(Anderson, J.) dismissing her claims against the defendant, the Rockingham
County Sheriff’s Office, based upon RSA 507-B:5 (2010). She argues that the
trial court erred in ruling that the defendant is immune from suit in this case.

In reviewing the trial court’s grant of a motion to dismiss, our standard
of review is whether the allegations in the plaintiff’s complaint are reasonably
susceptible of a construction that would permit recovery. Chatman v. Strafford
County, 163 N.H. 320, 322 (2012). We assume the truth of all well-pleaded
allegations of fact and construe all reasonable inferences in the light most
favorable to the plaintiff. Id. If the facts do not constitute a basis for legal
relief, we will uphold the granting of the motion to dismiss. Id.

In her complaint, the plaintiff alleged that on November 14, 2011, the
defendant’s employee, a deputy sheriff, was attempting to serve civil process on
her, and that when she drove out of the parking lot of her apartment building,
he pursued her in his cruiser. When she returned home and started walking
across her yard, the deputy approached her from behind and, without warning,
knocked her down, physically assaulted her, and used unnecessary and
unreasonable force in arresting her.

RSA 507-B:5 provides immunity to “governmental unit[s]” for “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.”
We have construed RSA chapter 507-B to limit municipal liability arising from
tort suits. See Dichiara v. Sanborn Reg’l Sch. Dist., 165 N.H. 694, 697 (2013).
The plaintiff does not contest that the defendant is a “governmental unit,” see
RSA 507-B:1, I (2010), or that her action is for “bodily injury.” Instead, she
argues that she is entitled to recover because the deputy violated RSA 594:4,
I (2001), which states that “[n]o unnecessary or unreasonable force or means of
restraint may be used in detaining or arresting any person,” and because RSA
104:28 (2013) provides that “[t]he sheriff is liable for the official conduct of his
deputies.” The plaintiff’s argument fails, however, because neither statute
contains an exception to the statutory grant of immunity in RSA 507-B:5.
 One exception to RSA 507-B:5 is contained in RSA 507-B:2 (2010), which
states that “[a] governmental unit may be held liable for damages in an action
to recover for bodily injury, personal injury or property damage caused by its
fault or by fault attributable to it, arising out of ownership, occupation,
maintenance or operation of all motor vehicles, and all premises.” We have
construed RSA 507-B:2 to provide an exception for fault-based claims “only
when there is a nexus between the claim and the governmental unit’s
ownership, occupation, maintenance, or operation of a motor vehicle or
premises.” Dichiara, 165 N.H. at 696-97. Although the deputy had pursued
the plaintiff in his cruiser prior to the arrest, the allegedly tortious conduct
occurred in the defendant’s back yard. In her trial court pleadings, the plaintiff
argued that RSA chapter 507-B does not apply because her claims do not arise
from the operation of a motor vehicle. Accordingly, we conclude that the
allegations do not permit a reasonable inference that a nexus exists between
the plaintiff’s claims and the operation of a motor vehicle. See id.

Citing Everitt v. Gen. Elec. Co., 156 N.H. 202 (2007), the plaintiff argues
that the deputy’s wanton and reckless conduct negates official immunity, and
that the defendant is vicariously liable for the deputy’s conduct. The plaintiff’s
reliance upon Everitt is misplaced, however, because the trial court based its
dismissal upon immunity as set forth in RSA chapter 507-B, not the common
law doctrine of official immunity. RSA chapter 507-B contains no exception for
wanton and reckless conduct.

In addition, the plaintiff argues that the deputy is not entitled to qualified
immunity. This argument is also unavailing, however, because the plaintiff
has not alleged a constitutional violation, see Porter v. City of Manchester, 151
N.H. 30, 48 (2004), and the trial court’s dismissal was not based upon the
doctrine of qualified immunity.

We have reviewed the plaintiff’s additional arguments and conclude that
they are insufficiently developed, see State v. Blackmer, 149 N.H. 47, 49
(2003), and warrant no further consideration, see Vogel v. Vogel, 137 N.H. 321,
322 (1993).

Assuming the truth of all well-pleaded allegations in the plaintiff’s
complaint and construing all reasonable inferences in her favor, we conclude
that she has failed to allege a basis for legal relief. See Chatman, 163 N.H. at
322.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk
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