THE STATE OF NEW HAMPSHIRE SUPREME COURT

trial court’s error is, as this Court noted, that the Trust’s intentional tort claims “are not
restated versions of the negligence claim asserted in count III (negligent failure to
control/regulate water). Id. at 667-68. Rather, they are claims alleging: 1) the deliberate
invasion of the Trust’s property; and 2) that the City used its property in an unlawful and
unreasonable manner. Id. Thus, the Trust’s trespass and nuisance claims properly allege
damage from, among other things, water, and discretionary function immunity does not
preclude the Trust from pointing to water as a fact supporting those two claims. Id. The trial
court’s conclusion to the contrary, was respectfully, not in accordance with this Court’s prior
decision.
B. THE TRIAL COURT ERRED IN GRANTING THE CITY SUMMARY
JUDGMENT ON THE TRUST’S TRESPASS CLAIM.
Based on its conclusion that the only facts that could legally support the Trust’s
trespass claim were those related to the City’s alleged failure to remove debris, the trial court
dismissed the Trust’s trespass claim. R., 115-16. The trial court reasoned that “absent
evidence that the City knew that its alleged failure to remove debris from Rattlesnake Brook
and its culvert was ‘substantially certain’ to cause damage to the Property, the [trial c]ourt
rules that the defendant is entitled to summary judgment as a matter of law.” R., 116. As
explained above, the trial court should have also considered the water that damaged the
Trust’s property. Tarbell Adm’r, Inc., 157 N.H. at 667-68.
The Trust properly set forth facts to support its trespass claim. A trespass is an
intentional invasion of the property of another. Moulton v. Groveton Papers Co., 112 N.H.
50, 54 (1972). Involuntary and accidental entries on another’s land are not considered
trespasses. White v. Suncook Mills, 91 N.H. 92, 98 (1940). On the other hand, when an actor
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