Washington State's 45-year Experiment in Governmental Liability

• Publication year: 2005

SEATTLE UNIVERSITY LAW REVIEWVolume 29, No. 1FALL 2005

ARTICLES

Washington State's 45-Year Experiment in Governmental Liability

Michael Tardif(fn*) and Rob McKenna(fn**)

INTRODUCTION

In March 1961, the Washington State Legislature (the "Legislature") eliminated the judicial doctrine providing sovereign immunity from tort liability for state government. Sovereign immunity is the right of government to be free from suit or liability.(fn1) Sovereign immunity originated in English law and both federal and state courts consistently applied the doctrine after the United States became a nation.(fn2) Courts perceived sovereign immunity to be a prudent protection for government functions and taxpayer funds.(fn3)

The Legislature eliminated the sovereign immunity of state government with a simple statutory "waiver" of the immunity, which read as follows:The State of Washington, whether acting in its governmental or proprietary capacity, hereby consents to the maintaining of a suit or action against it for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation. The suit or action shall be maintained in the county in which the cause of action arises: Provided, That this section shall not affect any special statute relating to procedure for filing notice of claims against the state or any agency, department or officer of the state.(fn4) Attorney General John O'Connell described the Legislature's action in sweeping terms in September 1961:Within the body of public law, the doctrine of governmental immunity from tort liability has been described as the towering thorn from the tree which bears no fruit. Through the years, courts and legislatures in this state and elsewhere have pruned the branches or chopped off whole limbs; but it was not until this year that the Washington State Legislature, in Chapter 136, Laws of 1961, apparently laid the axe to the very roots of this doctrine.(fn5)

The Attorney General's description was accurate when first given and remains accurate today. No other state had completely waived sovereign immunity.(fn6) Washington's waiver has not been modified.

Washington's waiver has been in force for nearly forty-five years, during which time many questions have been answered. New litigation, however, continues to expand the scope of the waiver, and the extent of liability continues to raise new questions and present difficult problems. Major problems include the uncertainty of case-by-case determinations of government liability and the cost of liability for inherently risky governmental(fn7) programs, such as corrections and child welfare.

Part I of this Article examines the waiver against the background of prior Washington law and the pattern of immunity waivers in other jurisdictions. This examination reveals surprising features of prior Washington law, such as the narrow scope of liability for local governments which lacked sovereign immunity before 1961. It also reveals fundamental differences between waivers in Washington and in other states. Washington's waiver contains no partial immunities, no limits on claims or damages, and no liability standards for government; it requires neither legislative review and approval of claims, nor adjudication of claims by special tribunals. Waivers in other states contain at least one of these features; most contain two or more.

Part II of the Article summarizes three very different periods of development of government liability law following the 1961 waiver. This part of the Article includes summaries of state experience with claim and defense costs, the effect of two tort reform acts (1981 and 1986), and three proposals for legislative control of government tort liability.

Part II also summarizes the substance of Washington's governmental liability law and compares it to the laws in other jurisdictions. In the public duty doctrine, for example, Washington law is similar to other jurisdictions. In other areas, including crimes committed by released criminal offenders, Washington law is very different. These differences have proved controversial because they have generated high costs and affected administration of important programs. The law in these areas remains unsettled.

Part III of this Article analyzes the results of Washington's waiver and identifies problems caused by the waiver, arguing that court interpretation of the waiver produced a result that was not intended by legislators 45 years ago-expansive liability for purely governmental functions and decisions. This liability has produced high legal defense costs and increasing tort payouts for harms caused, not by the government directly, but by third parties who have contact with broad government programs. The Legislature should take action to ensure that the waiver serves its original intent. The open-ended waiver should be discarded in favor of a statutory scheme that defines the extent of liability for various government functions, as such a scheme would better serve the public interest.

I. The Waiver and its Historical Context

A. The 1961 Washington Waiver

The Washington Legislature's waiver of sovereign immunity contained no hint of later controversies about the extent and cost of government liability. House Bill (HB) 338, waiving the state's immunity, was introduced on January 30, 1961, and reported out of the Judiciary Committee with a do pass recommendation three days later.(fn8)

The bill had wide support. Committee members voting in favor of the bill included future Seattle Mayor Wes Uhlman, future state Attorney General and United States Senator Slade Gorton, and future Washington State Supreme Court Justice James Anderson. At its second reading on February 7, HB 338 received its only amendment, a proviso stating that the bill did not affect requirements for claim filing.(fn9) On February 8, the House passed HB 338 by a vote of 93-0.(fn10) There was a similar lack of controversy in the Senate. Although the waiver was rejected after it was amended to have retroactive effect, it passed, without the amendment, on March 6 by a vote of 32-9.(fn11)

Attorney General O'Connell portrayed the waiver as an advance in social policy, writing the following:The Federal Tort Claims Act of 1946, although limited in scope and strictly construed, represented the acceptance into the law of this country of a valuable principle; and once accepted, that principle expanded in scope, influence, and stature. Accordingly, with its acceptance, there was no longer any reason to continue to give effect to a doctrine universally condemned as productive of unnecessary injustice. The practical experience of modern government with its everyday contact with its citizens had shown that the state and its agencies could injure an individual citizen in a number of ways. The trend today is toward responsible government, that is, responsible toward those for whose benefit and needs it presumably exists. It was in recognition of sound principles of social policy for our state to abolish the doctrine of sovereign tort immunity.(fn12)

Neither the Attorney General nor the four assistants who made the 1961 bar convention presentation predicted major problems as a result of the waiver, though the assistants did note potential administrative difficulties because the waiver contained no provisions for implementing procedures or a method to fund claims.(fn13) Only Assistant Attorney General Delbert Johnson forecasted that the generality of the waiver would cause difficulty. Certainly, the areas of state immunity are not now clearly defined. The Washington statute gives little guidance. It would seem obvious that a substantial amount of litigation will be required before anyone can make any reasonable conclusions on extent of the area of exclusion from liability in the new act. (fn14) Forty-five years after the waiver, as subsequent sections of this Article discuss, there is still ongoing litigation over the extent of tort liability for governmental functions in Washington.

In 1963, the Legislature provided procedures for claims, lawsuits, and funding.(fn15) In that same year, Kelso v. City ofTacoma held that the state waiver included municipal corporations.(fn16) The Legislature enacted a separate waiver, essentially identical to the state waiver, for local government in 1967.(fn17) In response to concerns about increasing claims and costs, the 1989 Legislature added risk management provisions and changed claim and funding provisions.(fn18) The 1999 Legislature moved legal defense costs "off-budget" by providing that they could be funded directly out of the non-appropriated liability account.(fn19) There were no changes to the waiver itself in any of the later legislation.

B.Washington Government Liability Before the Waiver

Although the state had complete immunity prior to 1961,(fn20) cities, counties, and quasi-municipal corporations had liability for torts. Cities had liability for proprietary functions, which included common city services such as water, electricity, sewer, garbage, and maintenance of streets and sidewalks.(fn21) The primary areas of municipal immunity were governmental functions, such as police, parks, and health.(fn22) Counties and quasi-municipal governments, such as school districts, had no immunity. The Revised Code of Washington (RCW) 4.08.120,(fn23) enacted when...