Is ultra vires used as a defense to tort liability cases?
A. Ultra vires is a fairly common defense to tort liability in other states. 18 E. McQuillin, Municipal Corporations, sec. 53.60 (3rd ed. 2003). In New Hampshire, only one Supreme Court case uses the term in connection with municipal tort liability. In Wakefield v. Newport, 60 N.H. 374 (1880), the selectmen took it upon themselves to work on a privately owned flagpole. They negligently caused it to fall and injure the plaintiff passing by in a carriage. The town itself was not liable because the actions of the selectmen were ultra vires. (Presumably the selectmen could have been liable as individuals.) Today, a similar concept is found in RSA 31:105 and :106, which call for municipalities to indemnify employees, selectmen and other municipal officials for liability for negligence and civil rights violations unless they act outside the scope of employment or office. (Note that RSA 31:105, pertaining to negligence, must be adopted by vote of the governing body, while RSA 31:106, pertaini
