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                     THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Merrimack
No. 2015-0351


                               LYNETTE MARYEA

                                       v.

                             THOMAS VELARDI & a.

                           Argued: November 12, 2015
                          Opinion Issued: March 8, 2016

       The MuniLaw Group, of Epsom (Tony F. Soltani on the brief and orally),
for the plaintiff.


       Maggiotto & Belobrow, PLLC, of Concord (Corey Belobrow on the brief
and orally), for defendant Strafford County.


      HICKS, J. The plaintiff, Lynette Maryea, appeals an order of the Superior
Court (Smukler, J.) ruling that defendant Strafford County is entitled to
discretionary function immunity and granting the County’s motion for
summary judgment in an action for damages arising out of an automobile
accident. Maryea and co-defendant Thomas Velardi settled. The principal
issue in this case is whether the provisions in RSA chapter 507-B waiving
governmental immunity from tort liability arising out of, among other things,
the operation of motor vehicles, abrogate the County’s common law
discretionary function immunity. We hold that they do not, and, accordingly,
we affirm.

      The trial court’s order recites the following facts. Maryea was an inmate
at the Strafford County House of Corrections. In January 2011, the County
was transporting Maryea from the House of Corrections to the Federal District
Court in Concord in an inmate transport van. Maryea rode handcuffed and
shackled in the van’s back compartment, which was designated for inmates.
The compartment had no seatbelts. During the drive, the van collided with
Velardi’s vehicle, and Maryea sustained injuries. Maryea then brought
negligence claims against Velardi and the County. In her negligence claim
against the County, Maryea alleged that the County is liable for her injuries
because the transport van was not equipped with seatbelts in the back
compartment where she was required to be seated.

       Wayne Estes, the former Sheriff of Strafford County, had previously
considered installing seatbelts in the County’s inmate transport vans but had
decided against it. In an affidavit, Estes explained that the only seatbelts
available for the inmate compartments were “lap belts.” According to Estes,
because of their shackles, the inmates would not be able to tighten the lap
belts. To secure the belts, Estes explained, corrections officers would need to
enter the vans with the inmates. Each transport van could carry up to eight
inmates, and Estes worried that, as corrections officers adjusted the inmates’
seatbelts, inmates might overwhelm the officers, take their firearms, and/or
escape.

       The County moved for summary judgment, arguing that it was immune
from liability because the decision not to install seatbelts was a discretionary
function. In her objection, Maryea raised three principal arguments: (1) RSA
507-B:2 abrogated the County’s common law discretionary function immunity;
(2) the transportation of prisoners was not a “decision requiring a high degree
of discretion” protected by discretionary function immunity; and (3) the County
was not entitled to immunity because its use of the transport van was a
“proprietary function,” rather than a governmental function. (Bolding omitted.)
The trial court granted summary judgment in the County’s favor. On appeal,
Maryea raises the same arguments. We address each argument in turn.

      We begin by analyzing Maryea’s argument that RSA 507-B:2 abrogated
the County’s common law discretionary function immunity. Maryea explains
that “RSA 507-B:5 acts as a general grant of immunity to governmental units.”
See RSA 507-B:5 (2010). According to Maryea, RSA 507-B:5 “removes any
common law immunities as well as the common law associated with bodily
injury or personal injury cause[s] of action[], and grants immunity, subject to
the exceptions found in RSA 507-B:2.” The County contends that discretionary
function immunity survived RSA chapter 507-B’s enactment. It cites Ford v.
New Hampshire Department of Transportation, 163 N.H. 284 (2012), for the


                                       2
proposition that “[t]he existence of immunity for discretionary functions is
fundamental to [New Hampshire’s] system of separation of powers.” Ford, 163
N.H. at 294. The County then 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,
municipalities were immune from tort liability if their tortious acts arose from
the “exercise [of] a governmental function.” Merrill, 114 N.H. at 725. However,
municipalities “acting in their corporate or proprietary capacity” were “liable for
their torts under the same principles applied to private corporations.” Id. In
Merrill, we rejected this governmental-proprietary function immunity
framework, holding that municipalities were “subject to the same rules as
private corporations if a duty ha[d] been violated and a tort committed.” Id. at
730. However, we recognized an exception. Immunity remained 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.” Id. at 729. We refer to this exception as
discretionary function immunity. See Everitt v. Gen. Elec. Co., 156 N.H. 202,
211 (2007).

       In response to Merrill, the legislature enacted RSA chapter 507-B,
entitled “BODILY INJURY ACTIONS AGAINST GOVERNMENTAL UNITS.” See
Schoff v. City of Somersworth, 137 N.H. 583, 585 (1993). RSA 507-B:5 states
that “[n]o 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.” RSA 507-B:5.
RSA 507-B:2 creates an exception to RSA 507-B:5, providing 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
1 We note that many of our discretionary function cases, including Merrill, involved municipalities,
not counties. However, at the time Merrill was decided, counties and municipalities both enjoyed
immunity. See Opinion of the Justices, 101 N.H. 546, 548 (1957) (noting that municipal
immunity “from liability for torts arising out of negligence in the performance of governmental
functions” extends to counties); Dempster v. County, 88 N.H. 472, 473 (1936). Here, neither party
distinguishes between counties and municipalities for the purposes of discretionary function
immunity. Moreover, we see no reason why discretionary function immunity should protect
municipalities’ discretionary acts but not the discretionary acts of counties. Cf. Bergeron v. City
of Manchester, 140 N.H. 417, 421 (1995) (addressing a city’s and the State’s discretionary
function immunity together “[b]ecause the standards governing whether a city is immune from
tort liability under Merrill do not differ appreciably from those that govern the State’s immunity
under RSA chapter 541-B”).


                                                 3
attributable to it, arising out of ownership, occupation, maintenance or
operation of all motor vehicles, and all premises.” RSA 507-B:2 (2010)
(emphasis added). RSA 507-B:1, I, defines “governmental unit” as “any
political subdivision within the state including any county, city, [or] town.”
RSA 507-B:1, I (2010).

       RSA chapter 507-B does not address discretionary function immunity.
Since its enactment, however, we have regularly applied this immunity doctrine
in tort cases that involve state and local governmental units:

      [W]e have held that immunity exists for: . . . a town selectmen’s
      decision not to lay out certain roads, Rockhouse Mt. Property
      Owners Assoc. v. Town of Conway, 127 N.H. 593, 600 (1986);
      traffic control and parking regulations, Sorenson v. City of
      Manchester, 136 N.H. 692, 694 (1993); setting of road
      maintenance standards and construction of a sidewalk when
      based upon a city’s faulty plan or design, Gardner [v. City of
      Concord, 137 N.H. 253, 258, 259 (1993)]; traffic control and
      management of roadway safety, Bergeron v. City of Manchester,
      140 N.H. 417, 422, 424 (1995); a decision whether to enact
      maintenance and inspection regulations, Mahan [v. N.H. Dep’t of
      Admin. Services, 141 N.H. 747, 751 (1997)]; and the training and
      supervision of coaches and referees at a school basketball game,
      Hacking [v. Town of Belmont, 143 N.H. 546, 550 (1999)].

Everitt, 156 N.H. at 211-12.

       Moreover, in Everitt, we distinguished between statutory immunity —
such as sovereign immunity, see RSA 99-D:1 (2013), and immunity for
governmental units, see RSA ch. 507-B — and common-law municipal
immunity, which, except for discretionary function immunity, we abrogated in
Merrill. See Everitt, 156 N.H. at 209. We recognized that discretionary
function immunity was necessary to protect “certain essential, fundamental
activities of government . . . so that our government can govern.” Id. at 210
(quotation omitted). We noted that discretionary function immunity was meant
“to limit judicial interference with legislative and executive decision-making.”
Id. (quotation omitted). Thus, as we explained in Ford, “[t]he existence of
immunity for discretionary functions is fundamental to our system of
separation of powers.” Ford, 163 N.H. at 294.

      Recently, in Farrelly v. City of Concord, 168 N.H. ___, ___ (decided Dec.
23, 2015), we noted that, “as our decisions indicate, we have not interpreted
[RSA chapter 507-B] as completely occupying the field of municipal immunity
so as to preempt the common law doctrine.” We now hold that RSA chapter
507-B does not abrogate the doctrine of discretionary function immunity. For
more than forty years, discretionary function immunity, which is rooted in New


                                         4
Hampshire’s constitutional separation of powers, has operated alongside RSA
chapter 507-B’s immunity framework, protecting the discretionary decisions of
governmental units even when those decisions concerned the ownership,
occupation, maintenance, or operation of motor vehicles or premises. See, e.g.,
Tarbell Adm’r, Inc. v. City of Concord, 157 N.H. 678, 679-80 (2008) (holding
that discretionary function immunity barred the plaintiff’s “negligence claims
alleging that the City failed to properly construct a dam,” i.e., a city premises,
and control and regulate its water level). During this time, the legislature has
not amended RSA chapter 507-B in a way that would affect the application of
discretionary function immunity. We therefore reject Maryea’s argument that
RSA 507-B:2 abrogated the County’s discretionary function immunity in this
case.

      Maryea’s injuries allegedly arose from the County’s decision not to install
seatbelts in the inmate transport van that was transporting her to the Federal
District Court.2 That decision concerned the County’s “ownership, occupation,
maintenance or operation of [its] motor vehicles.” RSA 507-B:2. However, as
explained above, the County may still be immune from liability if its decision
constituted a discretionary function.

      “In resolving discretionary immunity questions, we distinguish between
planning or discretionary functions and functions that are purely ministerial.”
Bergeron, 140 N.H. at 421. Planning or discretionary functions are functions
that are “characterized by the high degree of discretion and judgment involved
in weighing alternatives and making choices with respect to public policy and
planning.” Opinion of the Justices, 126 N.H. 554, 563 (1985) (quotation
omitted). Ministerial functions, on the other hand, are functions that are
“absolute, certain and imperative, involving merely the execution of a set task.”
14 P. Loughlin, New Hampshire Practice: Local Government Law § 1040, at 27-
33 (2011). For example, in our analysis of the statutory discretionary function
immunity for state agencies, see RSA 541-B:19, I(c) (2007), we drew a
distinction between the “decision to place or not to place a guardrail on a
roadway,” a protected discretionary decision, and the construction of that
guardrail, an act of implementation that “neither required nor contained any
discretionary decision-making.” DiFruscia v. N.H. Dept. of Pub. Works &
Highways, 136 N.H. 202, 205 (1992).

      Here, like the decision whether to place the guardrail in DiFruscia,
Estes’s decision not to install seatbelts was “conduct characterized by [a] high
degree of discretion.” Id. (quotation omitted). Estes considered installing the

2 Although, on appeal, Maryea frames some of her discretionary function arguments around the
County’s alleged failure to provide any safety precautions in the transport van, including
“seatbelts, hand holds, [or] padding,” in her complaint and in her arguments to the trial court, her
negligence claim was based upon only the County’s decision not to install seatbelts. For this
reason, we limit our analysis to that decision.


                                                 5
seatbelts, but decided that the danger to the officers and the public outweighed
the increased safety that the seatbelts would provide for inmates. Specifically,
Estes determined that the seatbelts would require corrections officers to enter
the vans with the inmates, which would make it easier for the inmates to
overwhelm the officers, access their firearms, and escape. Thus, the decision
not to install seatbelts involved “weighing alternatives and making choices with
respect to public policy and planning,” and was therefore a protected
discretionary function. Opinion of the Justices, 126 N.H. at 563 (quotation
omitted).

       Maryea argues in her brief that the County owed a duty “to provide a
reasonably safe transportation method,” and was therefore “required to take
some good-faith action to provide inmates with a reasonably safe environment
for transportation.” Maryea further argues that “[t]he issue is not whether the
decision to not install seatbelts was a discretionary function, but rather
whether the implementation of that decision by transporting prisoners without
any . . . precautions to ensure their safety comports with” discretionary
function immunity. To the extent that Maryea argues that this case involves
the implementation of a discretionary decision, we reject that characterization
of her claim. Maryea based her negligence action against the County on the
van’s lack of seatbelts, which, we have concluded was a discretionary, rather
than a ministerial, function for which the County was entitled to immunity.
Further, to the extent that Maryea argues that the County’s duty to provide for
inmate safety conflicts with and somehow abrogates the County’s immunity, we
agree with the County that discretionary function immunity applies even if
such a duty is owed. This is because the discretionary immunity analysis does
not concern the defendant’s duty to the plaintiff, but the threshold question of
whether the defendant’s allegedly negligent act or omission is the type of
discretionary conduct that discretionary function immunity protects.

       In her notice of appeal and the questions presented in her brief, Maryea
also refers to the County’s “deliberate indifference,” suggesting that it vitiates
the County’s discretionary function immunity. The County argues that Maryea
did not preserve this deliberate indifference argument for appellate review. We
agree. “On appeal, we consider only issues that have been both timely raised
below and preserved for our review.” Appeal of Pelleteri, 152 N.H. 809, 811
(2005). The closest that Maryea came to raising an argument in the trial court
about deliberate indifference was in her objection to the County’s summary
judgment motion in which she stated that the County’s failure to install any
safety devices in the van “show[ed] a complete disregard for the safety and
well[-]being of the prisoners transported.” However, Maryea never suggested
that the County’s alleged disregard was deliberate or that deliberate
indifference negated the County’s immunity. Because Maryea failed to raise
this argument in the trial court, we need not address it now.




                                        6
      Finally, we reject Maryea’s contention that the County is not immune
because its operation of the inmate transport van was a proprietary rather than
a governmental function. In Merrill, we repudiated the distinction between
proprietary and governmental functions as the basis for immunity. Merrill,
114 N.H. at 725-26, 729; see also Opinion of the Justices, 126 N.H. at 558 (“In
Merrill . . . this court significantly altered the common law immunity of
municipalities by abolishing the governmental-proprietary function
distinction.”). Maryea cites cases from other jurisdictions that continue to
employ the governmental-proprietary function distinction, but she does not
attempt to reconcile those cases with Merrill. Nor does Maryea argue that we
should overrule Merrill in light of those cases. Thus, Maryea’s argument must
fail.

       Because we hold that RSA 507-B:2 did not abrogate the County’s
common law discretionary function immunity, and discretionary function
immunity protected the County from liability arising from its decision not to
install seatbelts in its inmate transport vans, we conclude that the trial court
did not err by granting the County’s motion for summary judgment.

                                                  Affirmed.

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




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