THE STATE OF NEW HAMPSHIRE SUPREME COURT

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X. Whether the trial court properly granted the City’s motion for summary judgment? Preserved: R., pp. 108-17. XI. Whether the trial court properly ignored the City’s deed? Preserved: R., pp. 71-72, 94-96, 120, 129. XII. Whether discretionary function immunity permits or justifies a taking in this case, and whether a taking occurred? Preserved: R., pp. 121. XIII. Whether the trial court properly accepted as not shams the City’s alleged maintenance plan and accompanying affidavits? Preserved: R., pp. 68-69. XIV. Whether the trial court properly denied as moot the Trust’s motion for view? Preserved: R., pp. 131-33. 2
STATEMENT OF THE CASE This case appears before this Court for a second time. See Tarbell Adm’r, Inc. v. City of Concord, 157 N.H. 678 (2008). The Plaintiff, Tarbell Administrator, Inc., Trustee of the Tarbell Family Revocable Trust of 2003 (“Trust”), filed this action against the City of Concord (“City”) in the Merrimack County Superior Court in November 2006. The City filed a motion for summary judgment, the trial court granted that motion and the Trust appealed to this Court. In Tarbell Adm’r, Inc., this Court held the doctrine of discretionary function immunity only barred two of the Trust’s five claims against the City. Accordingly, this Court affirmed in part and reversed in part the trial court’s order granting the City’s motion for summary judgment. This Court also remanded the matter to the trial court. On remand, the City filed another motion for summary judgment seeking dismissal of the Trust’s remaining claims. After a hearing, the trial court (Conboy, J) granted summary judgment to the City. The Trust timely filed a motion for reconsideration and a motion for a view. The trial court (Smuckler, J) denied those motions. The Trust then appealed to this Court. Among other things, this appeal involves the interpretation of Tarbell Adm’r, Inc. Namely, whether this Court’s decision in that case immunized the City relative to water that flowed onto and damaged the Trust’s property –irrespective of the theory of recovery. The trial court concluded Tarbell Adm’r, Inc. altogether immunized the City from claims relating to water. The trial court also concluded that despite the existence of genuine issues of material facts, the Trust’s negligence claim required expert testimony on causation and that, as a matter of law, the Trust’s trespass and nuisance claims failed. The Trust seeks reversal of the trial court’s grant of summary judgment. 3
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Page 3 and 4: IV. THE TRIAL COURT’S ORDER GRANT
Page 5 and 6: Lemay v. Burnett, 139 N.H. 633 (197
Page 7: QUESTIONS PRESENTED I. Whether the
Page 11 and 12: The City controls and operates a da
Page 13 and 14: SUMMARY OF ARGUMENT Tarbell Adm’r
Page 15 and 16: is why. Respectfully, the trial cou
Page 17 and 18: knows that an injury is substantial
Page 19 and 20: predecessor in title considered rea
Page 21 and 22: III. PROVING THE CITY NEGLIGENTLY M
Page 23 and 24: Consequently, this Court essentiall
Page 25 and 26: properly functioning brakes on a vi
Page 27 and 28: Id. at 660. The Moore court then an
Page 29 and 30: D. THIS CASE DOES NOT REQUIRE EXPER
Page 31 and 32: Despite these rules, the trial cour
Page 33 and 34: Respectfully submitted, Tarbell Adm

THE STATE OF NEW HAMPSHIRE SUPREME COURT

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