The Value of Government Tort Liability: Washington State's Journey from Immunity to Accountability

• Publication year: 2006

SEATTLE UNIVERSITY LAW REVIEWVolume 30, No. 1FALL 2006

ARTICLES

The Value of Government Tort Liability: Washington State's Journey from Immunity to Accountability

Debra L. Stephens and Bryan P. Harnetiaux(fn*)

I. Introduction

When the Washington legislature waived sovereign immunity of state and local governmental entities, it provided that those entities shall be liable for their "tortious conduct to the same extent as if [they] were a private person or corporation."(fn1) In so doing, the legislature aligned Washington with a nationwide trend to limit or eliminate the antiquated notion that the sovereign can do no wrong, instead favoring responsible, accountable government.(fn2) This movement was triggered in part by the passage in 1946 of the Federal Tort Claims Act, which waived the sovereign immunity of the United States.(fn3) Overall, the movement reflected the notion that "greater efficiency and justice would be attained by accompanying power with responsibility."(fn4)

In a recent article, Washington's Attorney General Rob McKenna and Senior Assistant Attorney General Michael Tardif argued that Washington's abolition of sovereign immunity should be re-examined because it has resulted in unacceptable government tort liability and escalating litigation costs.(fn5) That article also criticized court interpretations of government tort liability and the consequences of that liability.(fn6) In response to a perceived crisis, Tardif and McKenna urged the legislature to replace the current broad waiver with a scheme that precisely sets forth when the government is liable in tort.(fn7)

This Article takes a contrary view, commending both the legislature's choice to broadly waive sovereign immunity and judicial decisions defining the impact of this waiver. In doing so, this Article traces the development of government tort liability in Washington both before and after the state expressly abandoned sovereign immunity in 1961. Moreover, this Article demonstrates that the waiver of immunity did not create excessive governmental liability. Rather, the waiver has been implemented in a way that not only respects the prerogative of the state and local entities to govern, but also provides for greater government accountability and individualized justice for Washington citizens.

Part I of this Article traces Washington's history with the common law doctrine of government immunity from tort liability. It also identifies other distinct common law immunities protecting executive, legislative, and judicial functions-immunities that lay dormant during the reign of sovereign immunity. Part II discusses the legislature's broad waiver of sovereign immunity in 1961 and the legislature's subsequent reaffirmation of the waiver. It also notes isolated instances in which the legislature has partially restored immunity or otherwise limited tort liability. Part III addresses the development of case law interpreting the scope of government tort liability in light of the legislative waiver of sovereign immunity and examines the impact of the remaining related common law immunities for executive, legislative, and judicial functions. Part III also examines the role of the "public duty doctrine," which has evolved as a conceptual framework for assessing whether a predicate duty supports government tort liability in any given circumstance. Finally, Part IV exalts the continuing value of holding government accountable for its tortious conduct, treating such accountability as a legitimate means to encourage responsible government and achieve individual justice. Part IV also urges that any marked retreat from the broad waiver of sovereign immunity is unnecessary and unjustified, whether viewed from a fiscal or ideological standpoint.

II. A Brief History of Government Immunity in Washington

A. Sovereign Immunity

From the formation of the United States, both the federal government and the several states adopted the notion of sovereign immunity that had prevailed in England since ancient times.(fn8) Historically, sovereign immunity was a common law doctrine imposed by the courts as a matter of policy.(fn9) This doctrine was well-settled when Washington became a state and so remained well into the twentieth century.(fn10) The fram-ers of the Washington constitution implicitly acknowledged default application of the doctrine in art. II, § 26: "The legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state." Thus, since statehood, it has been understood that the legislature is constitutionally empowered to alter the common law doctrine of sovereign immunity.(fn11)

Early in the reign of sovereign immunity, the Washington Supreme Court required clear evidence that the legislature intended to waive sovereign immunity. For example, on two separate occasions at the beginning of the twentieth century, the court held that the legislature's mere authorization of a right to "begin an action" against the state was not a sufficient declaration that the state would be responsible for the tortious acts of its agents and employees.(fn12) The court required the legislature to use unmistakable statutory language in order to demonstrate the legislature's consent to respondeat superior liability.(fn13)

While Washington common law regarding the sovereign immunity of the state was plain and all-encompassing, the same was not true with respect to the sovereign immunity of local governmental entities.(fn14) In Washington, as elsewhere, entitlement to immunity often turned on the particular nature of the entity. Geographical subdivisions of the state, such as counties and school districts, were deemed to partake fully in the state's immunity. However, municipal corporations, such as cities and towns, were treated differently because of their independent corporate status.(fn15) Functions performed by cities and towns were not immune if those functions were considered "proprietary" in nature.(fn16)

When local governmental entities were found to be immune from liability for tortious acts or omissions, they were not deemed immune in their own right. Instead, their immunity was said to derive from that of the state.(fn17) As a result, cities and towns were imbued with immunity when they were performing "governmental functions" similar to those performed by the state, unless that immunity had been waived by statute; however, if a function was "proprietary" or "corporate" in nature, that function was subject to tort liability.(fn18)

Prior to the waiver of sovereign immunity, courts developed a test to distinguish a governmental function from a proprietary function or, put another way, to decide whether an entity was "acting in a governmental capacity."(fn19) The test centered on whether the particular act was done for the benefit of all, rather than for the advantage of the governmental entity itself(fn20) In other words, the overarching question was whether the particular activity was undertaken for the common good.(fn21) Under this standard, a city or town performing a proprietary function was liable for its tortious acts to the same extent as a private corporation. While this criteria appears to be simple and straightforward, it proved to be difficult to apply. As in other jurisdictions, Washington's early case law revealed inconsistencies in the application of the governmental-proprietary dichotomy.(fn22)

The common law distinction between governmental and proprietary functions became obsolete once the Washington legislature waived sovereign immunity for state and local governmental entities. Nevertheless, this historical distinction has some lingering relevance because of the language later used by the legislature to describe the breadth of the waiver of sovereign immunity.(fn23)

B. Other Common Law Immunities

During the era of sovereign immunity in Washington and elsewhere other less-encompassing common law immunities also existed, although they did not receive the full attention of the courts until after the veil of sovereign immunity was lifted. These immunities corresponded to certain core functions performed by the legislative, judicial, and executive branches of government.(fn24) While legislative and judicial immunity each bear the name of the branch affected, the immunity for the executive branch is often referred to as "discretionary immunity."(fn25) Understandably, there was no need to widely discuss legislative, judicial, and discretionary immunities while sovereign immunity reigned because sovereign immunity was all-encompassing: a claim of sovereign immunity necessarily subsumed conduct giving rise to each of the narrower immunities.

Legislative immunity provides that a legislature and its members cannot be held responsible in tort for merely passing a statute that causes injury to a person.(fn26) Similarly, judicial officers (and quasi-judicial officers) are not subject to tort liability for fulfilling their adjudicative functions.(fn27) In turn, discretionary immunity insulates members of the executive branch from tort liability with regard to the implementation of laws.(fn28) Generally conceived, discretionary immunity is confined to conduct at the policy-making level, as opposed to the ministerial level. The American Law Institute noted the following:[W]ithin the scope of the executive branch are many agencies, officers and...