Shea v. Portsmouth

14 Citing cases

  1. Stott v. Manchester

    109 N.H. 59 (N.H. 1968)   Cited 8 times

    RSA 249:1, 2, supra. These considerations however are not conclusive of the question of whether the particular undertaking is governmental or proprietary in character. Kardulas v. Dover, 99 N.H. 359; Shea v. Portsmouth, 98 N.H. 22, 26. See Krzysztalowski v. Fortin, 108 N.H. 187.

  2. Short v. Amerada Hess Corp.

    2019 DNH 62 (D.N.H. 2019)   Cited 5 times

    "A nuisance arises from the use of property, either actively or passively, in an unreasonable manner." Shea v. City of Portsmouth, 98 N.H. 22, 27 (1953). "Liability is imposed only in those cases where the harm or risk to one is greater than he ought to be required to bear under the circumstances."

  3. IN RE METHYL TERTIARY BUTYL ETHER PRODUCTS LIAB

    379 F. Supp. 2d 348 (S.D.N.Y. 2005)

    See id.Shea v. City of Portsmouth, 98 N.H. 22, 27 (1953).State of New Hampshire v. Charpentier, 126 N.H. 56, 62 (1985) (emphasis omitted).

  4. In re Methyl Tertiary Butyl Ether Products Liability Litig

    379 F. Supp. 2d 348 (S.D.N.Y. 2005)

    See id.Shea v. City of Portsmouth, 98 N.H. 22, 27 (1953).State of New Hampshire v. Charpentier, 126 N.H. 56, 62 (1985) (emphasis omitted).

  5. City of Manchester v. National Gypsum Co.

    637 F. Supp. 646 (D.R.I. 1986)   Cited 46 times   1 Legal Analyses
    Holding that a motion to amend complaint to add parties after discovery of documents and test results indicated that added party was involved and was made in good faith in its delay despite coming late in the suit

    But liability for damage caused by a nuisance turns on whether the defendants were in control over the instrumentality alleged to constitute the nuisance, either through ownership or otherwise. See Shea v. City of Portsmouth, 98 N.H. 22, 27, 94 A.2d 902, 906 (1953) ("a nuisance arises from the use of property, either actively or passively, in an unreasonable manner"); Town of Hooksett School District v. W.R. Grace Co., 617 F. Supp. at 133. If the defendants exercised no control over the instrumentality, then a remedy directed against them is of little use. The instrumentality which created the nuisance, in this case, has been in the possession and control of the plaintiff, the City of Manchester, since the time it purchased the products containing asbestos materials.

  6. Town off Hooksett Sch. Dist. v. W.R. Grace

    617 F. Supp. 126 (D.N.H. 1984)   Cited 67 times
    Holding school district's negligence and strict liability claims against a company which sold and installed asbestos products were properly actionable in tort under New Hampshire law

    The creator of the nuisance is responsible in his capacity as a property owner if a nuisance arises from the use of property in an unreasonable manner. Shea v. City of Portsmouth, 98 N.H. 22, 94 A.2d 902 (1953). But, in the instant case, Plaintiff seeks to recover from Defendant not in its capacity as a property owner, but in its capacity as a manufacturer.

  7. McGrath v. Manchester

    307 A.2d 830 (N.H. 1973)   Cited 4 times
    In McGrath v. City of Manchester, 113 N.H. 355, 307 A.2d 830, 831 (1973), the New Hampshire Supreme Court, also citing Nehbras, supra, adopted the majority rule "that a city is not bound by its own zoning ordinance in the performance of its governmental functions absent any statutory provisions to the contrary."

    Since such uses are commonly privately owned and operated, no purpose to authorize the regulation of governmental activities and uses is reasonably to be implied therefrom. It is established in this jurisdiction that the control of fires is a governmental function (Reynolds v. Nashua, 93 N.H. 28, 35 A.2d 194 (1943); Shea v. Portsmouth, 98 N.H. 22, 94 A.2d 902 (1953)), as is the operation and maintenance of public parks and recreational areas. Piasecny v. Manchester, 82 N.H. 458, 136 A. 357 (1926); Harkinson v. Manchester, 90 N.H. 554, 5 A.2d 721 (1939).

  8. Webb v. Rye

    108 N.H. 147 (N.H. 1967)   Cited 18 times
    Stating that whether, under the circumstances, a land use was unreasonable and constituted a nuisance is a question of fact

    See Annot. 40 A.L.R. 2d 1177, 1182. Because of their necessity, indispensability, and contribution to the public welfare and health of the public in general, public dumps do not constitute a nuisance per se (Myers v. Hagerstown, 214 Md. 312, 315), but they may become a nuisance in fact as a result of their location, the manner in which they are operated, or because of other circumstances. Shea v. Portsmouth, 98 N.H. 22, 27; Chicago v. Fritz, 36 Ill. App.2d 457, 467; In re Petition of St. George, 125 Vt. 408, 412; Annot. 52 A.L.R. 2d 1134, 1136. It follows, therefore, that even though the defendant was exercising a public right in performance of a public duty imposed upon it, if its use of its property was unreasonable as against adjoining owners the plaintiffs would be entitled to relief. O'Brien v. Derry, supra; Proulx v. Keene, 102 N.H. 427, 431; Annot. 52 A.L.R. 2d 1134, 1140.

  9. Gossler v. Manchester

    107 N.H. 310 (N.H. 1966)   Cited 21 times
    In Gossler v. Manchester, 107 N.H. 310, 221 A.2d 242 (1966), we questioned the utility of the judicially created doctrine of municipal immunity but did not strike it down. 107 N.H. at 314-15, 221 A.2d at 245.

    The plaintiff concedes that applying existing law in this jurisdiction the defendant would be entitled to prevail. Reynolds v. Nashua, 93 N.H. 28; Shea v. Portsmouth, 98 N.H. 22; Opinion of the Justices, 101 N.H. 546, 548; Hermer v. Dover, 106 N.H. 534. We are here urged to re-examine existing law and throw off the ancient shackles of governmental immunity prospectively and retrospectively as to the plaintiffs at bar.

  10. Hermer v. Dover

    215 A.2d 693 (N.H. 1965)   Cited 12 times

    One of the questions transferred without ruling is whether the defendant municipality has a valid defense by reason of governmental or municipal immunity for tort. Such immunity has existed heretofore in this jurisdiction. Reynolds v. Nashua, 93 N.H. 28; Shea v. Portsmouth, 98 N.H. 22; Opinion of the Justices, 101 N.H. 546, 548. We are aware, of course, that municipal immunity is on the wane elsewhere, has been subjected to a barrage of criticism and has been abolished in some jurisdictions by judicial decisions having prospective effect.