Although RSA 212:34 does not define "intentional act," see RSA 212:34, I, V, both parties argue that we should interpret "intentional act" under RSA 212:34 in the same fashion as we did when construing the Workers' Compensation Law: for a tort to be an "intentional tort" the tortfeasor must act with the knowledge that "his conduct [is] substantially certain to result in injury." Thompson v. Forest, 136 N.H. 215, 220, 614 A.2d 1064 (1992) (citing Restatement (Second) of Torts § 870, at 280 (1979) ). Because the parties agree on this definition, we assume, without deciding, that it applies here.
We reach a similar conclusion regarding the plaintiff's claim of intentional conduct. SeeThompson v. Forest, 136 N.H. 215, 219, 614 A.2d 1064 (1992) (‘‘To constitute an intentional tort, the tortfeasor must have known that his conduct was substantially certain to result in injury."). Accordingly, the Firefighter's Rule applies and the plaintiff has not, as a matter of law, alleged facts satisfying the exceptions set forth in the statute.
Such intent is not limited to consequences that are desired. See Thompson v. Forest, 136 N.H. 215, 614 A.2d 1064 (1992). If an actor knows that an injury is substantially certain to result from his act and he nevertheless completes the act, he is treated by the law as if he in fact desired to produce the injury.
Thus, conduct is "reckless" where "the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a substantial certainty." Thompson v. Forest, 136 N.H. 215, 614 A.2d 1064, 1068 (1992) (quoting W.P. Keeton et al., Prosser & Keeton on the Law of Torts § 8, at 36 (5th ed. 1984) ). Miller argues that Mount Sunapee's conduct meets this high bar because "Mount Sunapee knew, or should have known, in light of receiving thirty-five inches of snow in the weeks leading up to the accident, that unmarked snowmaking equipment, such as that with which he collided, had become covered, and concealed from view, by snow."
Boulter v. Eli & Besse Cohen Found., 166 N.H. 414, 421 (2014). Moreover, as the court noted in Thompson v. Forest, 136 N.H. 215, 220 (1992), a litigant's characterization of conduct as "wanton and reckless" is not particularly useful in identifying the line separating negligence and intentional torts because, "willful, wanton and reckless conduct may, or may not, be the basis for a properly pleaded intentional tort." "Recklessness" as plaintiffs mean the term to be understood here — equating to bad faith in contract performance — must, at a minimum, describe conduct qualifying as an intentional tort (i.e., more than negligence), that is, "where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a substantial certainty.
What is "wanton" in New Hampshire? The Supreme Court of New Hampshire has never precisely defined the term, but has discussed the concept. In 1992, the Supreme Court issued two opinions that shed some light: Thompson v. Forest, 614 A.2d 1064 (N.H. 1992) and Akerley v. Hartford Ins. Group, 616 A.2d 511 (N.H. 1992). For Judge McAuliffe's discussion of these cases, see Minion, 929 F. Supp. at 525; see also Inserra v. Nedeau, No. 93-279, 1994 U.S. Dist. LEXIS 16278, at *12 (D.N.H. Nov. 10, 1994). In Thompson, the plaintiff alleged her co-employees engaged in "willful, wanton and reckless" conduct, which was sufficient to allow a civil action overriding the co-employee immunity provisions under New Hampshire's workers' compensation law.
Spencer concedes in the Agreed Statement of Facts that he had not availed himself of the exception to the exclusivity bar set forth in G.L. c. 152, § 24, that permits an employee to give written notice at the time of hiring of the intent to retain the right to sue at common law in the event of an employment-related injury. The workers' compensation scheme is based on a "fundamental quid pro quo," Thompson v. Forest, 136 N.H. 215, 219, 614 A.2d 1064, 1067 (1992), which is "the tort immunity conferred on the employer . . . [in exchange] for providing no-fault workers' compensation benefits." Id. at 218, 614 A.2d at 1066 (emphasis added) (quotation omitted).
The statute also precludes claims against a co-employee for negligent torts. See Thompson v. Forest, 136 N.H. 215, 219 (1992). Fernandes argues that the injuries she suffered fall outside the scope of injuries covered by the worker's compensation statute.
That enhanced compensatory damages are available in negligence cases when the defendant's conduct is also wanton, malicious, or oppressive finds further support in the New Hampshire Supreme Court's treatment of the first of these three types of aggravated conduct. In Thompson v. Forest, 136 N.H. 215, 614 A.2d 1064 (1992), the court determined that an allegation of "wanton" conduct does not necessarily constitute and allegation of "intentional" conduct that would give rise to a claim for an intentional tort. Rather, the court held that wanton conduct, in some situations, may only give rise to a negligence claim: "The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong." Id. at 220, 614 A.2d 1064 (emphasis added).
Pac. Atl. Shippers, Inc. v. Schier, 258 A.2d 351, 353 (N.H. 1969). A party can be liable for conversion without having "a hostile intent, or a desire to do any harm."Thompson v. Forest, 614 A.2d 1064, 1067 (N.H. 1992). Similarly, good faith does not rescue a party from liability, Pac. Atl. Shippers, Inc., 258 A.2d at 353, but "[t]he tortfeasor must have known that his conduct was substantially certain to result in injury."