THE STATE OF NEW HAMPSHIRE SUPREME COURT

I. STANDARD OF REVIEW.
ARGUMENT
When reviewing an order on a motion for summary judgment this Court considers the
affidavits and other evidence, and all inferences properly drawn from them, in the light most
favorable to the non-moving party. Tarbell Adm’r, Inc. v. City of Concord, 157 N.H. 678,
682 (2008). In this case the Trust was the non-moving party. If no genuine issue of material
fact existed, and the moving party was entitled to judgment as a matter of law, then summary
judgment should have been granted. Id. This Court reviews the trial court’s application of
the law to the facts de novo. Id.
II. THE TRIAL COURT IMPERMISSIBLY REJECTED ALL FACTS RELATED
TO HOW THE CITY CHOSE TO REGULATE/NOT REGULATE ITS
WATER AND THE RELEASE THEREOF.
A. THE TRIAL COURT MISINTERPRETED AND MISAPPLIED THIS
COURT’S HOLDING IN TARBELL ADM’R, INC.
In its order granting the City’s motion for summary judgment, the trial court stated
in light of the Supreme Court’s ruling in this case, the only act or
omission for which the City can be liable is its alleged failure to
remove debris from Rattlesnake Brook and its culvert. See Tarbell,
157 N.H. at 685, 687. The Supreme Court has ruled that all of the
other acts or omissions challenged by the plaintiff are entitled to
discretionary function immunity.
R., p. 115. Based on its understanding of Tarbell Adm’r, Inc., the trial court went on to
conclude that the Trust “failed to demonstrate that the City knew that its alleged failure to
remove debris from Rattlesnake Brook and its culvert was ‘substantially certain’ to cause
water and debris to invade the Property” and “[t]he only evidence in the record concerns the
City’s knowledge regarding the injury that could result from the City’s decision not to do a
controlled release of the lake’s water or remove the flashboards -- decisions for which the
City is entitled to discretionary function immunity.” Id. at 115-16.
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