Below is an excellent piece that appeared in the Trial News Feb. 2011 issue (Trial News is the newspaper for Washington State Association for Justice members). It also appeared as a blog entry at WhatsupWSAJ.com, copied and pasted immediately below.
By Carol Johnston – It should come as no surprise that our Attorney General, Rob McKenna, is once again initiating an all-out assault on rules of law which hold the state responsible for its tortious wrongful conduct. McKenna is using his elective office as a bully pulpit to mold public opinion into a political agenda — one that eliminates governmental accountability for harm it causes to its citizens.
His agenda seeks to expand sovereign immunity, eliminate our remaining shred of joint and several liability, and demands caps on damages, particularly for state agencies ‘most vulnerable to liability claims.’ (The Seattle Times, December 30, 2010).
Instead of focusing on escaping full responsibility for irresponsible acts, reform should focus on cleaning up the internal problems of agencies responsible for harming our most vulnerable citizens – the kinds of problems that needlessly cause tragedies giving rise to the legitimate liability claims that Mr. McKenna apparently deplores.
It is unconscionable that Mr. McKenna advocates for open government for developers to sue local governments and uses taxpayers’ dollars to sue to stop health care reform, but fights against the rights of the citizens he swore to protect. We must not sit quietly on the sidelines and let our AG dismantle fair and just rules of law that protect the innocent. He has been on this warpath before – and lost. We will fight to ensure he loses again.
McKenna is wrong on the facts of the cases he cites, wrong on the cause of damage payouts by the state, wrong on the solution to avoiding payouts from the state budget for wrongful acts, wrong that a cap on damages will in any way provide ‘full and fair compensation’ (his words) for the lives torn to shreds by the state’s tortious conduct, and wrong when he uses other states’ liability payouts as comparables.
It is shocking that in McKenna’s recent media pieces for his tort reform campaign he uses the disingenuous “rephrase-the-facts technique” to give the public a grossly false understanding of some very horrific examples of tortious conduct by the state and trivializes a family’s tragic loss. Unlike the version in McKenna’s op eds, Tracy Joe Enoch-Jevne was no mere check forger when she killed Michael McGuire. She had four prior DUI convictions, a drug conviction, and had skipped several court appearances. She should have been completing a DUI sentence in jail but was mistakenly released and lost in the system despite a court order to supervise and control her. She went home, got drunk, and got behind the wheel. A state agency and the City of Algona failed in their most basic duties. Michael’s family will live with this failure every day for the rest of their lives.
Take the Micky Gendler case. McKenna describes it as ‘the case of the bicycle rider whose wheel got stuck in a rut on the Mountlake Bridge and was paralyzed in his fall. The award was $8 million.’ (The Olympian, January 2, 2011).
The true facts are:
• The state was aware for more than eight years that similar incidents were caused by the same roadway defect, which went unrepaired throughout those years, and then fought to hide the records of those incidents;
• The state fought Gendler’s request for disclosure of previous accident reports under the Public Records Act until Division Two recently upheld a Thurston County Superior Court ruling requiring disclosure;
• The defect was more than the half-inch width called for in the design and was large enough to catch a bicycle tire;
• The aberrantly large gap was created when the drawbridge’s deck was replaced during a seismic retrofit;
• WSDOT’s risk manager said that state officials assumed the gap wouldn’t be a problem since most bicyclists use the sidewalk or the right lane when crossing the bridge, even though they knew bicyclists doing what Gendler did were following the law and rules of the road;
• The gap was filled with epoxy after this incident;
• The state settled the case rather than risk a jury verdict. WSDOT’s risk manager said Mickey did nothing wrong and the settlement was fully justified;
• Micky Gendler didn’t just fall when his tire instantly came to a grinding halt in the gap; he was thrown over the handlebars and his head slammed against the roadway, splitting his helmet and paralyzing him from the neck down; and
• The $8 million the state voluntarily paid will cover Gendler’s medical costs but not the pain and havoc that have become his life.
It’s cases like this that prompt Mr. McKenna to call for a return of sovereign immunity. But what justification can the person elected to keep Washington safe possibly offer for such egregious conduct to go unrecognized, as if it never occurred? How much did it cost to fill the gap with epoxy? How much more time is Mr. McKenna spending on his personal political agenda rhetoric than it took to fill the gap with epoxy? What risk assessment process did the state utilize regarding this problem as required by statute? Why have the statutorily mandated risk assessments by the state decreased over the past few years? Why did McKenna omit from his sample cases those real-life examples which show compellingly how CPS and other state agencies have for years failed to properly do their job? The truthful answers to these questions lead to a conclusion other than the one advocated by our AG.
Don’t fight to hide the truth, Mr. McKenna. Instead, do your job and fight to fix the dangers that kill and maim the law-abiding citizens of this wonderful Evergreen State.
Carol N. Johnston, WSAJ EAGLE member, is a partner in the firm of Otorowski Johnston Morrow & Golden. Her practice focuses on major medical negligence, pharmaceutical and medical devices products liability, and government liability. She is president of WSAJ for 2010-2011.