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Archive for the ‘Facts About Washington State Tort Damages’ Category

McKenna Shows His True Colors (again) re State Immunity

In DSHS, Facts About Washington State Tort Damages, Gendler Injured Cyclist Case, Governmental Immunity, Police misconduct, Rob McKenna on February 14, 2011 at 10:45 pm

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.


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McKenna Runs For Governor

In Facts About Washington State Tort Damages, Governmental Immunity, Rob McKenna on January 12, 2011 at 3:42 pm

By Paul W. Whelan

On Friday, January 7th on KUOW, our WA State Attorney General, Rob McKenna, delivered his ethically and factually challenged explanation of his proposed legislative changes regarding government liability.

His pitch to cap or limit government responsibility is particularly dangerous because we live in an era of enormous budget problems, where essential services such as health care and education are in jeopardy.  Like most conservative pitch men, McKenna avoids the factual nuances that are absolutely critical to understand the issues.  He claims that the State should only pay its “fair share” of the responsibility of the harm it causes.

Significantly, what McKenna fails to mention is that the major settlements he complains about were approved by his own office.  Secondly, he does not bother to explain the fact that in order to have an allocation of fault among co-defendants, Plaintiffs must be absolutely fault free.  Only then can the trier of fact (like a judge or jury) proportion damages between co-defendants, each of which must be found to be held responsible for the liability-causing event.  In other words, the judge or jury must find that, ‘but for’ the defendant’s actions, the plaintiff was injured.

Mr. McKenna also fails to note that his proposed legislation would cover much more than State misconduct.  It affects the liability of County run hospitals, public utility districts, cities, towns, and any other political sub division in the State.  He also never mentions the fact that wherever the State or political subdivision thereof is the only defendant in a case, that entity itself could and usually does bring additional defendants into the case to diminish its responsibility.

Remember: This is the same attorney general who is attempting to undermine federal health care law by attacking the universal mandatory coverage provisions adopted by congress.

Clearly, Rob McKenna intends to run for governor in the next election and hopes to stir up a conservative Tea Party base by raising issues and concepts opposed by most thoughtful Washingtonians.

What is open government?

In Facts About Washington State Tort Damages, Governmental Immunity on January 7, 2011 at 5:14 am

By Mimy Bailey

Open government is a state of transparency where citizens have access to information, which allows the public to scrutinize, oversee, and participate in government business.  Open government is a concept that is fundamental in a democracy.  Government functions for the people, so it makes sense that it is not allowed to operate behind closed doors.  By making government open, it is accountable to the people it serves.

In Washington, the Public Records Act is a set of statutes that outlines the types of documents available to the public.  Under the Act (See RCW 42.56.010), a “public record” is any writing containing information relating to the conduct, performance, or function of the government.

Offices of state and local government have procedures for the public to request documents.  To request documents, visit the website of the specific government department and find out more information.  Helpful search phrases are “public disclosure” and “public records.”

To learn more about open government in Washington State, visit The Washington Coalition for Open Government’s website.

Get The Facts Right

In Facts About Washington State Tort Damages, Gendler Injured Cyclist Case, Governmental Immunity, Rob McKenna on January 5, 2011 at 12:50 am

By Catherine Fleming

A flurry of articles have surfaced in the local press about Attorney General Rob McKenna’s push to cap damages to victims of those injured due to government negligence.  These articles have incorrectly focused on large payouts to the injured citizens.

Editors and reporters have failed to note that the WSDOT representative for the Gendler case (injured cyclist awarded $8 million) stated that the amount awarded was well justified.

They also are eager to portray opponents of McKenna as “greedy trial lawyers.”  However, this misses the point entirely: Attorneys who represent seriously injured clients are focused on getting an appropriate amount of money that will pay for exorbitant medical bills, 24/7 medical assistance, lost wages, etc.

This blog and the soon-to-be website, http://www.KeepWASafe.com, will provide all of the relevant facts — not just those that conveniently fit McKenna’s agenda.