Cited by

Furthermore, as the trial court correctly noted, the legislature enacted RSA chapter 507-B in response to our decision in Merrill v. Manchester, 114 N.H. 722 (1974), in which we abrogated municipal immunity subject to certain exceptions.

asserts that, “based on separation of powers,” discretionary function immunity is “constitutionally required.” The County further argues that discretionary function immunity remained “intact” after RSA chapter 507-B because this court has continued to apply the doctrine in cases in which “liability would have been [otherwise] permissible under RSA 507-B:2.” Merrill v. City of Manchester, 114 N.H. 722 (1974), charted a new course for governmental immunity in New Hampshire law.1 Before Merrill, mu

Merrill v. Manchester, 114 N.H. 722, 728 (1974) (“The prevailing rule of torts today is that where there is negligence by an individual or a corporation liability follows.

In Merrill v. Manchester, 114 N.H. 722, 730 (1974), we abrogated municipal immunity, subject to certain exceptions.

Subsequent to Gossler, an increasing number of states began acknowledging the lack of administrative or fiscal reasons for retention of the doctrine of municipal immunity and a major trend developed towards its abolition.

Tilton v. Dougherty, 126 N.H. 294, 298 (1985) (sovereign immunity); Merrill v. Manchester, 114 N.H. 722, 727 (1974) (municipal immunity).

We have noted that “[t]he legislature expresses its will by enacting laws, not by failing to do so.” Merrill v. Manchester, 114 N.H. 722, 728 (1974).

Immunity is the rare exception.” Merrill v. Manchester, 114 N.H. 722, 728 (1974) (citation omitted); see also Sargent v. Ross, 113 N.H. 388, 396 (1973).

In Merrill v. City of Manchester, 114 N.H. 722, 728-29, 332 A.2d 378, 382-83 (1974), we held that municipal immunity, a judicially created doctrine that had become outdated and outmoded, should be sharply limited.

In Merrill v. Manchester, 114 N.H. 722, 729, 332 A.2d 378, 383 (1974), we abrogated the doctrine of municipal immunity.

Since the purpose of RSA 412:3 is to permit recovery of damages against governmental units up to the limit of insurance purchased, see Merrill v. Manchester, 114 N.H. 722, 727, 332 A.2d 378, 382 (1974), we refuse to adopt an interpretation of the interplay among RSA 412:3, RSA 507-B:4, I, and the school district’s primary policy that would limit the recovery of damages despite the purchase of additional insurance coverage.

Merrill v. Manchester, 114 N.H. 722, 725, 332 A.2d 378, 383-84 (1974); RSA 541-B:19 (Supp. 1994).

Is the special duty/special relationship test, as recognized by the New Hampshire Supreme Court in Hartman v. Hooksett, 125 N.H. 34 (1984) and Weldy v. Town of Kingston, 128 N.H. 325 (1986), affected by the erosion of sovereign immunity in Merrill v. Manchester, 114 N.H. 722 (1974) and City of Dover v. Imperial Casualty and Indemnity Company, 133 N.H. 109 (1990)?

Eight years later, however, we abrogated municipal immunity, except “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.” Merrill v. Manchester, 114 N.H. 722, 729, 332 A.2d 378, 383 (1974).

The city filed a motion to dismiss arguing, among other things, that the plaintiff’s claims were barred by the discretionary function exception to the abrogation of municipal immunity as set forth in Merrill v. City of Manchester, 114 N.H. 722, 332 A.2d 378 (1974).

We note first that RSA 422:17 was enacted in 1941, well before our decision in Merrill v. Manchester, 114 N.H. 722, 332 A.2d 378 (1974), which abrogated, with limited exceptions, municipal tort immunity, reasoning that it “offends the basic principles of equality of burdens and of elementary justice.” Id.

Our holding today is not at variance with the decision in Merrill v. Manchester, 114 N.H. 722, 332 A.2d 378 (1974), where we judicially abrogated municipal immunity.

The doctrine of municipal immunity for torts was first created by the judiciary, see Merrill v. Manchester, 114 N.H. 722, 727, 332 A.2d 378, 382 (1974), and is generally believed to have originated in England.

The decision in Rounds is one such instance since it does not overrule an established precedent upon which litigants relied, see Burns v. Bradley, 120 N.H. 542, 545, 419 A.2d 1069, 1071 (1980); Hampton Nat’l Bank v. Desjardins, 114 N.H. 68, 74-75, 314 A.2d 654, 658 (1974); Merrill v. Manchester, 114 N.H. 722, 729-30, 332 A.2d 378, 383-84 (1974); Vickers v. Vickers, 109 N.H. 69, 70-71, 242 A.2d 57, 58 (1968), and since retroactive application of Rounds would not result in inequitable consequences

*242 We note that the cases dealing with this exception to municipal immunity predated our decision in Merrill v. Manchester, 114 N.H. 722, 729, 332 A.2d 378, 383 (1974), in which we abrogated municipal immunity except for acts requiring the exercise of a judicial or legislative function and for acts requiring the exercise of an executive or planning function which involved policy decisions characterized by a high degree of official judgment.

Merrill v. Manchester, 114 N.H. 722, 731, 332 A.2d 378, 384 (1974) (Duncan, J., concurring).

generally Merrill v. Manchester, 114 N.H. 722, 730-31, 332 A.2d 378, 384 (1974) (new rule applied in case that announced it).

In Merrill v. Manchester, 114 N.H. 722, 332 A.2d 378 (1974) we held that a town is immune from tort liability for acts performed in the exercise of a legislative or judicial function, or of an executive or planning function involving basic policy decisions requiring the exercise of a high degree of discretion.

At common law, “municipal corporations [were similarly] immune from liability for torts arising out of negligence in the performance of governmental functions,” Opinion of the Justices, 101 *558 N.H. 546, 548, 134 A.2d 279, 280 (1957), but not of proprietary functions, Merrill v. Manchester, 114 N.H. 722, 726, 332 A.2d 378, 381 (1974).

Merrill v. Manchester, 114 N.H. 722, 725, 726, 332 A.2d 378, 381 (1974) (municipalities’ immunity from tort liability depends on nature of function).

Similarly, in Merrill v. Manchester, 114 N.H. 722, 730, 332 A.2d 378, 384 (1974), we only prospectively abolished the doctrine of municipal tort immunity.

Furthermore, its inaction could be motivated by its assumption that if a judicially developed rule is unjust the courts will overrule it.” Merrill v. Manchester, 114 N.H. 722, 728, 332 A.2d 378, 382 (1974).

This opinion is effective as of August 17, 1982, but retrospective to Joyce A. Marden who undertook the effort and expense to challenge the law.

Further, in January 1975, town counsel informed the selectmen that the common-law defense of sovereign immunity for municipalities had been eliminated by decision of the New Hampshire Supreme Court in Merrill v. Manchester, 114 N.H. 722, 729, 332 A.2d 378, 383 (1974), and that insurance coverage was available to protect the town against its new potential liability.

The fact that the legislature has done nothing since the Poliquin decision is of no relevance to the issue in this case and would also be of little aid in any consideration whether Poliquin should be overruled, because the legislature speaks by action and not by inaction.

In Merrill v. City of Manchester, 114 N.H. 722, 332 A.2d 378 (1974), this court prospectively abrogated the common law tort immunity of cities and towns.

With the exception of the instant cases, this decision will not be given retroactive effect, for prior appropriations of the legislature were undoubtedly based upon the presumed constitutionality of the statutory fee schedules.

Merrill v. City of Manchester, 114 N.H. 722, 727, 332 A.2d 378, 382 (1974).

Merrill v. Manchester, 114 N.H. 722, 730, 332 A.2d 378, 382 (1974); Hampton Nat’l Bank v. Desjardins, 114 N.H. 68, 73-75, 314 A.2d 654, 657-58 (1974); Madbury v. Durham, 108 N.H. 474, 240 A.2d 760 (1968).

The events in question took place prior to July 1, 1975, the effective date of Merrill v. Manchester, 114 N.H. 722, 332 A.2d 378 (1974), abolishing sovereign immunity for cities and towns.

The superior court held that it need not decide the governmental immunity issue presented by this suit against a town, “for, even assuming defendants are liable the Court cannot find any damages assessable.” See Merrill v. Manchester, 114 N.H. 722, 332 A.2d 378 (1974).

“The legislature expresses its will by enacting laws, not by failing to do so.” Merrill v. Manchester, 114 N.H. 722, 728, 332 A.2d 378, 382 (1974); see United States v. Price, 361 U.S. 304, 310-12 (1960).

However, this court pointed out in Merrill v. Manchester, 114 N.H. 722, 725-26, 332 A. 2d 378, 381 (1974), that in the field of municipal immunity such a distinction has not been applied with consistency or logic, resulting in an abstract and confusing principle.

State immunity is broader than municipal immunity which this court has recently abolished in Merrill v. Manchester, 114 N.H. 722, 332 A.2d 378 (1974); see Opinion of the Justices, 101 N.H. 546, 548, 134 A.2d 279, 281 (1957).