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                  THE SUPREME COURT OF NEW HAMPSHIRE

                             ___________________________

Hillsborough-northern judicial district
No. 2014-0773


                                  SCOTT MCCARTHY

                                          v.

                    MANCHESTER POLICE DEPARTMENT & a.

                             Argued: June 18, 2015
                       Opinion Issued: September 22, 2015

      Backus, Meyer & Branch, LLP, of Manchester (B J Branch on the brief
and orally), for the plaintiff.


      McDonough, O'Shaughnessy, Whaland & Meagher PLLC, of Manchester
(Robert J. Meagher on the brief and orally), for the defendants.

      LYNN, J. The plaintiff, Scott McCarthy, appeals an order of the Superior
Court (Nicolosi, J.) granting a motion to dismiss his defamation action against
the defendants, the Manchester Police Department (MPD) and MPD Sergeant
Craig Rousseau, on the grounds that municipal immunity bars his claim. We
affirm.

                                          I

       The trial court found, or the record supports, the following facts. On
April 8, 2011, William Socha was working on a construction site in
Manchester. At around noon, Socha noticed a truck parked on the site and
went to tell the driver to move the vehicle. As he approached, he saw that the
man in the driver’s seat had his pants down, exposing his genitalia. Socha also
observed a young female in the truck’s passenger seat. The passenger
appeared to Socha to be about twelve years old and to have some kind of
disability, possibly Down syndrome.

       Socha called the police, but, by the time an MPD officer arrived, the
vehicle had left. Socha gave the officer a description of the truck, its license
plate number, and a physical description of the driver. He described the driver
as a white male in his forties with a “bigger” build and a balding hairline, and
said that he was wearing a white “Sherwin Williams” sweatshirt. The police
determined that the truck was registered to the plaintiff, who resided in
Allenstown. A short time later, a detective from the Allenstown Police
Department observed the plaintiff arrive at his residence in a truck matching
the description and license plate number Socha had provided. The detective
also observed that the plaintiff was wearing a white “Sherwin Williams”
sweatshirt. The plaintiff told the detective that he had been in Manchester
around 12:30 p.m. that day to pick up a friend and her daughter. The MPD
filed a complaint charging the plaintiff with indecent exposure and lewdness,
and arrested him pursuant to a warrant.

       By April 11, the MPD had not identified the female passenger whom
Socha had described. In an effort to identify her, Sgt. Rousseau posted an
entry on the MPD blog, describing the incident and stating, in relevant part,
that “[d]etectives of the MPD Juvenile Division now say that McCarthy, 41, was
in fact the man who was exposing himself in the vehicle. McCarthy was
subsequently arrested [and] charged with one count of indecent exposure.”
The entry then asked for information concerning the identity of the female
passenger.

        No passenger was ever identified. On the day of the plaintiff’s criminal
trial, Socha failed to come to court, and the State entered a nolle prosequi.

       The plaintiff subsequently brought this action against the defendants,
alleging that Rousseau’s post on the MPD blog stating that the plaintiff was “in
fact” guilty of the crime was defamatory. The defendants moved to dismiss,
arguing that they were immune from suits that were not authorized by RSA
chapter 507-B. See RSA 507-B:5 (2010) (“No 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.”). The trial court construed the defendants’ position to be
that they were immune because the plaintiff’s defamation claim constituted an
intentional tort, which they argued was barred under RSA 507-B:5. The
plaintiff objected to the motion. Initially, the trial court appeared to be of the
view that RSA 507-B:2, an exception to municipal immunity, authorized suits


                                        2
against municipalities for claims based upon negligent (or perhaps reckless)
conduct, but not intentional conduct. See RSA 507-B:2 (2010). The court
therefore considered whether defamation constituted an intentional tort under
the statute. Finding no New Hampshire authority on point, the court relied
upon a Massachusetts appellate court decision which held that, under that
state’s municipal immunity statute, all forms of defamation fall within the
statute’s definition of an intentional tort for which municipalities are immune
from suit. See Barrows v. Wareham Fire Dist., 976 N.E.2d 830, 835 n.2, 838
(Mass. App. Ct. 2012).

       Following Barrows, the trial court ruled that the plaintiff’s claim
constituted an intentional tort for purposes of RSA chapter 507-B. It then
concluded that, in order to avoid constitutional infirmity, the municipal
immunity statute had to be construed consistently with the sovereign
immunity statute, RSA 541-B:19 (2007), with respect to liability for intentional
torts. See Huckins v. McSweeney, 166 N.H. 176, 182 (2014); see also RSA
541-B:19, I(d) (providing that the state and state employees are immune from
suit for “[a]ny claim arising out of an intentional tort, including . . . libel [and]
slander . . . provided that the employee . . . reasonably believes . . . that his
conduct was lawful, and provided further that the acts complained of were
within the scope of official duties of the employee”). Consistent with RSA 541-
B:19, I(d), the court found that the defendants would be entitled to immunity
unless Sgt. Rousseau acted beyond the scope of his official duties or did not
reasonably believe that his conduct was lawful, and the court ruled it would
conduct a pretrial evidentiary hearing in order to make these determinations.

       In response to the plaintiff’s motion for reconsideration, the trial court
clarified its original order. The court recognized that a claim for defamation
falls within the definition of “personal injury” under RSA 507-B:1, III(a) and
that, unlike RSA 541-B:19, I(d), RSA 507-B:1, III(a) does not classify the types
of claims that constitute “personal injury” as intentional torts. See RSA 507-
B:1, III(a) (2010) (defining “[p]ersonal injury” as “[a]ny injury to the feelings or
reputation of a natural person, including but not limited to . . . libel, slander,
or the publication or utterance of other defamatory or disparaging material”).
The court explained, however, that whether the plaintiff’s claim was for
intentional defamation or for negligent defamation, the claim was excepted
from municipal immunity under RSA 507-B:5 only if it arose “out of ownership,
occupation, maintenance or operation of all motor vehicles, and all premises.”
RSA 507-B:2.

       Because the plaintiff’s defamation claim did not relate to motor vehicles
or premises, the court next addressed the plaintiff’s assertion that application
of the municipal immunity statute so as to bar his claim would violate his right
to equal protection of the law under Part I, Article 14 of the State Constitution.
See N.H. CONST. pt. I, art. 14. Because the plaintiff’s equal protection
argument was based on the premise that he would have had a viable cause of


                                          3
action if the defamatory conduct at issue had been committed by a state actor
rather than a municipal actor, the court again considered the circumstances
under which the sovereign immunity statute, RSA chapter 541-B, would bar
the plaintiff’s claim. After doing so, the court reaffirmed its original order that
the plaintiff’s claim would be barred by RSA 541-B:19, I(d) unless Rousseau (1)
was acting beyond the scope of his official duties, or (2) did not reasonably
believe that he was acting lawfully when he made the blog post. Noting that
the plaintiff did not contest that Rousseau had acted within the scope of his
duties, the court scheduled an evidentiary hearing to resolve the second issue.

       Subsequent to the hearing, at which Rousseau testified, the court ruled
as follows:

          In light of the facts known to Sergeant Rousseau at the time he
      made the blog post, the circumstances under which the post was
      made, and the content of the entire post, the sergeant reasonably
      believed that he was acting lawfully when he posted the blog entry
      and stated [the plaintiff] “was in fact the man who was exposing
      himself in the vehicle.” Therefore, sovereign immunity, like
      municipal immunity, would bar plaintiff’s defamation claim. In the
      absence of disparate treatment between the immunity statutes,
      application of the municipal immunity statute in this case does not
      violate equal protection, and thus is appropriate.

The court therefore granted the motion to dismiss. This appeal followed.

                                         II

       On appeal, the plaintiff raises two issues. First, the plaintiff argues that
the trial court erred in ruling that defamation is always an intentional tort for
purposes of the municipal immunity statute, RSA chapter 507-B, and that the
trial court’s reliance upon Barrows is misplaced. Second, the plaintiff contends
that, assuming the trial court erred in classifying defamation as an intentional
tort, the municipal immunity statute is unconstitutional insofar as it bars this
action. The plaintiff asserts that, because RSA 541-B:19, I(b) implicitly waives
sovereign immunity for negligence actions against the state, his negligent
defamation action would succeed against a state actor. If true, the
dissimilarity between the two statutory schemes results in the law treating
individuals injured by municipal employee negligence differently from those
injured by state employee negligence. This disparity, he contends, renders the
municipal immunity statute violative of his equal protection rights under Part I,
Article 14 of the New Hampshire Constitution.

      The plaintiff’s arguments require us to interpret both the municipal and
sovereign immunity statutes. “Statutory interpretation is a question of law,
which we review de novo.” Appeal of Local Gov’t Ctr., 165 N.H. 790, 804


                                         4
(2014). “In matters of statutory interpretation, we are the final arbiter of the
intent of the legislature as expressed in the words of the statute considered as
a whole.” Id. “We first look to the language of the statute itself, and, if
possible, construe that language according to its plain and ordinary meaning.”
Id. “We interpret legislative intent from the statute as written and will not
consider what the legislature might have said or add language that the
legislature did not see fit to include.” Id. “We construe all parts of a statute
together to effectuate its overall purpose and avoid an absurd or unjust result.”
Id. “Moreover, we do not consider words and phrases in isolation, but rather
within the context of the statute as a whole.” Id. “This enables us to better
discern the legislature’s intent and to interpret statutory language in light of
the policy or purpose sought to be advanced by the statutory scheme.” Id.

       RSA 507-B:5 provides that “[n]o governmental unit1 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.” One exception to RSA 507-B:5 is set forth in RSA 507-B:2,
which states, in relevant part, 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.” “Personal injury” is defined, in relevant part, as “[a]ny injury to the
feelings or reputation of a natural person, including but not limited to . . . libel,
slander, or the publication or utterance of other defamatory or disparaging
material.” RSA 507-B:1, III(a).

      We do not read the provisions of RSA 507-B:5 in isolation. Although the
combined import of RSA 507-B:2 and :5 bars all tort actions against
municipalities that do not have “a nexus between the claim and the
[municipality’s] ownership, occupation, maintenance, or operation of a motor
vehicle or premises,” Dichiara v. Sanborn Reg’l Sch. Dist., 165 N.H. 694, 696-
97 (2013), in Huckins we held that “it is unconstitutional for the State to
immunize itself or its municipalities from liability for intentional torts
committed by government employees when those torts are not grounded on a
reasonable belief in the lawfulness of the disputed act.” Huckins, 166 N.H. at
182 (emphasis omitted). Consequently, for RSA chapter 507-B to be
constitutionally valid, it must be construed to permit intentional tort claims
against municipal actors who do not have a reasonable belief in the lawfulness

1Although Rousseau is not a “governmental unit” as RSA 507-B:1, I (2010) defines the term, RSA
507-B:4, IV (2010) provides, in part, that, in civil actions for damages, the chapter’s provisions
extend to a “present or former employee, trustee, or official of a municipality . . . so long as said
employee or official was acting within the scope of his office and in good faith.” The plaintiff has
conceded that Rousseau was acting within the scope of his office. Because the plaintiff does not
challenge Rousseau’s good faith, we have no occasion to decide that issue and we therefore
assume that Rousseau is a “governmental unit” for the purposes of this opinion.



                                                  5
of their conduct, regardless of whether the claims have a nexus to motor
vehicles or premises.

       The short answer to the plaintiff’s first claim of error is that he is wrong
in arguing that the trial court ruled that all defamation claims constitute
intentional tort claims under the municipal immunity statute. Although the
court’s initial order on the motion to dismiss did contain some language to this
effect, its ruling reconsidering that order recognized that the limitation on tort
actions found in RSA 507-B:2 depends upon the nexus between the claim and
motor vehicles or premises.2 Thus, even if the plaintiff is correct in asserting
that a claim for negligent defamation is cognizable under RSA 507-B:2, the
claim at issue here does not meet the terms of that statute because it has no
nexus with the defendants’ ownership, occupation, maintenance, or operation
of motor vehicles or premises. Accordingly, because there is no statutory
authorization for the plaintiff’s claim, it is barred by RSA 507-B:5.

       This brings us to the plaintiff’s constitutional challenge to the trial
court’s ruling. Although the plaintiff’s brief is not entirely clear on the point,
his argument appears to be that, because the sovereign immunity statute does
not contain the exception for liability arising out of ownership, occupation,
maintenance or operation of motor vehicles or premises found in the municipal
immunity statute, compare RSA 541-B:19, I(b) with RSA 507-B:2, his claim for
negligent defamation would be cognizable pursuant to RSA 541-B:19, I(b)3 if
brought against a state actor, thus demonstrating the type of disparate
treatment of similarly situated persons that is prohibited by the State
Constitution. The efficacy of this argument hinges upon the plaintiff’s
contention that RSA 541-B:19, I(d) bars defamation claims against state actors
only in the case of intentional defamation. If, instead, RSA 541-B:19, I(d) also
bars claims for negligent and reckless defamation against state actors, as the
trial court decided, then the plaintiff’s claim would fail even if the defendants
2 There is some language in the trial court’s orders indicating that it believed that only negligence
claims could be brought under RSA 507-B:2. We note, however, that despite its title, “Liability for
Negligence,” the plain language of this provision allows suits against municipalities for intentional
torts. RSA 507-B:2 allows a suit for “personal injury,” which, under RSA 507-B:1 III(a) includes
some intentional torts. See RSA 507-B:1, III(a) (“Personal injury” includes “false arrest, detention
or imprisonment, malicious prosecution, libel, slander, or the publication or utterance of other
defamatory or disparaging material, invasion of an individual’s right of privacy, invasion of the
right of private occupancy, [and] wrongful entry or eviction”). This is a clear and unambiguous
statement that a plaintiff can bring an action for certain intentional torts, provided that the other
requirements of RSA 507-B:2 are met. When the meaning of a statute is clear and unambiguous,
we will not consider the title of the statute in determining the statute’s meaning. See Appeal of
CNA Ins. Cos., 143 N.H. 270, 274 (1998).
3 RSA 541-B:19, I(b) exempts the state and state actors from liability for “[a]ny claim based upon

an act or omission of a state officer, employee, or official when such officer, employee, or official is
exercising due care in the execution of any statute or any rule of a state agency.” The plaintiff
contends that, under this provision, if a state actor is not exercising due care, i.e., is negligent,
sovereign immunity does not apply. As explained in the text, we reject this argument because all
claims for defamation against state actors fall within the purview of RSA 541-B:19, I(d).


                                                   6
here had been state actors, and the plaintiff, therefore, would not have been
denied equal treatment.

       We conclude that the trial court correctly determined that RSA 541-B:19,
I(d) grants sovereign immunity against all claims for defamation arising out of
the conduct of state actors, provided that they were acting within the scope of
their official duties and with a reasonable belief that their conduct was lawful.

      RSA 541-B:19, I(d) provides, in part, that the state does not waive its
sovereign immunity for

       [a]ny claim arising out of an intentional tort, including . . . libel
       [and] slander . . . provided that the employee whose conduct gives
       rise to the claim reasonably believes, at the time of the acts or
       omissions complained of, that his conduct was lawful, and
       provided further that the acts complained of were within the scope
       of official duties of the employee for the state.

      “Defamation is made up of the twin torts of libel and slander — the one
being, in general, written while the other in general is oral . . . .” W. Keeton,
Prosser and Keeton on Torts § 111, at 771 (5th ed. 1984); see also 50 Am. Jur.
2d Libel and Slander § 1 (2006) (“The tort of defamation includes libel and
slander.”). Liability for defamation has two distinct intent elements. See
Duchesnaye v. Munro Enterprises, Inc., 125 N.H. 244, 250 (1984). First, a
defendant can act either intentionally or negligently in communicating
defamatory material. Id.; see also Restatement (Second) of Torts § 577, at 201
(1977). Second, when concerning a private person, a defendant can either “(a)
know[] that the statement is false and that it defames the other, (b) act[] in
reckless disregard of these matters, or (c) act[] negligently in failing to
ascertain” the truth. Restatement, supra § 580B, at 221-22.

      Nevertheless, regardless of whether a defendant intentionally publishes
material that is negligently fact-checked or negligently publishes material that
intentionally defames, the cause of action is the same: defamation.4 We have
found no controlling precedent, and the plaintiff points to none, that
establishes intentional defamation and negligent defamation as two distinct
causes of action.5 In contrast, in the case of some other torts, the law

4 Although a plaintiff may plead defamation as libel or slander, as discussed earlier, the
distinction between the two concerns the mode of communication, not the intent of the tortfeasor.
5 At oral argument, the plaintiff pointed to New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

That case, however, did not recognize separate intentional defamation and negligent defamation
causes of action. It instead held that the Federal Constitution “prohibits a public official from
recovering damages for a defamatory falsehood relating to his official conduct unless he proves
that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or
with reckless disregard of whether it was false or not.” New York Times, 376 U.S. at 279-80. New
York Times simply requires a certain level of culpability upon the part of the tortfeasor before a


                                                7
recognizes separate causes of action for intentional conduct, on the one hand,
and negligent conduct, on the other. See, e.g., Morancy v. Morancy, 134 N.H.
493, 496 (1991) (“Having previously recognized the tort of negligent infliction of
emotional distress, there is no logical reason why we should not now recognize
the tort of intentional infliction of emotional distress.”); Patch v. Arsenault, 139
N.H. 313, 319 (1995) (outlining the separate standards for intentional
misrepresentation and negligent misrepresentation).

       When the legislature placed libel and slander within the list of torts in
RSA 541-B:19, I(d) for which sovereign immunity is not waived, and did not
specifically define them in another way, we assume it gave the words their
plain and ordinary meaning. See Local Gov’t Ctr., 165 N.H. at 804. We
conclude that, because libel and slander are not recognized as involving
separate causes of action based upon the actor’s mental state, the legislature
intended to place those two torts, without regard to the intent with which they
are committed, within the classification of “intentional torts” listed in RSA 541-
B:19, I(d), as to which the state retains its sovereign immunity. Thus, the
plaintiff’s defamation action would have been barred even if the defendants had
been state actors.6

       Because both the municipal and sovereign immunity statutes bar the
plaintiff’s action, there is no disparate treatment under the law and thus no
constitutional violation.

                                                                Affirmed.

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




public official can recover damages for defamation when his or her official conduct is the subject
of the defamation. The case does not, however, purport to create separate causes of action based
upon the mental state of the defendant.
6 At oral argument, the plaintiff asserted that the issue of whether Sgt. Rousseau reasonably

believed that his conduct was lawful was a matter for a jury to decide, and presumably that the
trial court erred in making the determination based on a pretrial evidentiary hearing. Because the
plaintiff neither raised this issue in his notice of appeal, nor addressed it in his brief, we decline to
consider it. See State v. Blackmer, 149 N.H. 47, 49 (2003).


                                                   8
