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Archive for the ‘Governmental Immunity’ Category

Government lobbies for itself

In Governmental Immunity on March 6, 2011 at 6:59 pm

By Karen Koehler

Government entities are in trouble for lobbying the Legislature on our dime and not reporting.    69 complaints were filed last year.  The Olympia-based Evergreen Freedom Foundation is the watchdog that filed these complaints.   The Public Disclosure Commission is looking into about half of them.

According to the Associated Press, Washington state regulators have fined four government entities so far.



Gendler chastises McKenna for double speak

In Gendler Injured Cyclist Case, Governmental Immunity, Rob McKenna on March 5, 2011 at 5:43 am

By Karen Koehler


If the government messes up, the government should make things right.  In the case of Mickey Gendler, the governmental mess up caused him to be paralyzed from the neck down.  For life.

In an op-ed to The Seattle Times, Mickey Gendler slams Attorney General Rob McKenna:

My case is a great example of how government accountability is an important catalyst to change government behavior and fix dangerous conditions to make all of us safer. I sustained a life-changing spinal cord injury due to a defective road condition. The state knew the road was defective and dangerous because of a similar crash that occurred there but did nothing to correct it. The state Legislature is now considering whether to cap damage-award limits at $1 million to $2 million, calling these caps “very generous.” But the state admitted that my future medical expenses alone will exceed that cap. McKenna even called my settlement “appropriate” because the state “erred.” McKenna added, “If the state messes up, then someone who is harmed ought to be compensated by the state.”

The Attorney General’s job is to protect citizens.  Not to  protect the government at the expense of citizens.

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, 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.

DSHS fails six abused brothers

In DSHS, Governmental Immunity on February 3, 2011 at 3:19 am

By Karen Koehler

Child Protective Services has a notorious record.   It is supposed to protect the vulnerable and weak from abuse.  Statutory law requires that teachers, ministers, counselors, doctors and others report abuse so this agency can do its job.  Yet time and again, it utterly fails to do anything.

The state has settled a lawsuit for $6.55 million filed on behalf of six brothers who suffered years of sexual, physical and psychological abuse despite 33 complaints filed with Child Protective Services (CPS) over their treatment.  That’s  RIGHT – 33 COMPLAINTS. 33 opportunities to step in and stop sexual, physical, emotional abuse and torture of these children.

Each time a case like this hits the press, CPS and DSHS say they have made “new” changes.  The case worker has left.  Some other excuse. Lawsuits uncover these shameful failures.  And of course, the government wants to stop the lawsuits by abolishing claims for these types of cases.  But until we as a society do something about actually changing  CPS, lawsuits are all we have.

House Bills Introduced Re Government Liability on 1/28/2011

In Governmental Immunity on February 2, 2011 at 1:38 am

As anticipated, the attached bills concerning government liability were introduced this last week by Representative Eddy.  Click here to see the bills in their entirety: Bills from 1st Leg Session 1.28.2011

Immediately below is an excerpt from the PDF (see pp. 7-8), which provides details of the bills related to shielding the government from liability.


House Bill 1681 Read for the first time on 1/28/2011. Referred to Committee on Judiciary.

An ACT Relating to employer liability under the doctrine of respondeat superior; adding a new section to chapter 4.24 RCW; and creating a new section.


NEW SECTION. Sec. 1. The legislature finds that the decision of the supreme court in Rahman v. State creates an unreasonable standard for employers by imposing liability for actions of employees in circumstances that are beyond the ability of employers to control. An employee is not acting within the scope of his or her employment when the employee, without actual, implied, or apparent authority, transports a passenger or invites a passenger to ride in a vehicle being used for the employer’s purposes. The legislature intends by this act to overrule the holding in Rahman v. State that an employer is liable under the doctrine of respondeat superior for negligent acts of its employees that result in injuries to unauthorized occupants of vehicles used for the employer’s purposes.

NEW SECTION. Sec. 2. A new section is added to chapter 4.24 RCW to read as follows:

(1) An employer is not liable for civil damages under the doctrine of respondeat superior for the negligence of its employee or agents resulting from the operation of an employer vehicle, for injuries to a third party who occupies or operates the vehicle, if the employee or agent permitted the third party to occupy or operate the vehicle either in violation of any express policy, rule, order, or other instruction of the employer, or without the express or implied authorization of the employer. This section applies even where the conduct that immediately caused the harm is within the scope of the employee’s employment. [emphasis added]

(2) For the purposes of this section:

(a) “Employer” means any employer, including private emplyoers, the state, and po0litical subdivisions of the state.

(b) “Employer vehicle” means a vehicle owned, leased, or rented, or otherwise used by or for the benefit of the employer, and includes employee-owned or other private vehicles when such vehicle is operated for the express benefit of the employer.

(c) “Third party” means a person who is not an employee or agent of the employer.


Keeping police misconduct in check

In Governmental Immunity, Police misconduct on January 21, 2011 at 6:33 pm

By Karen Koehler

This is the tale of two inquests.

No. 1.  Police  body slammed a young man into a wall in Belltown.  He is now permanently brain injured and cannot care for himself.  The police were not in uniform.  They thought he was a suspect.  They were wrong.  An inquest was held – sort of a mini trial – to see if their actions were justified.  Almost all inquests uphold the actions of the police.  Their actions were upheld.

No. 2.  An Indian woodcarver was shot and killed. The young police officer thought the man posed a threat because he did not put down his knife.  At inquest

four jurors felt the officer was wrong. One felt he was right.  Three were undecided.

In the first example, the police had no risk of being criminally prosecuted.  In the second, the policeman may be prosecuted but only if the government so chooses.

The families of people injured and killed by police in cases like these,  currently have the right to bring civil lawsuits.  Regardless of whether the government pursues criminal charges.     Civil lawsuits prevent government secrecy or “protection of their own.”  Police departments have to open their files and records.  They have to go to court and justify their practices.   At the end of the day – a jury of twelve decides whether government should be held responsible.   The police are not allowed to be above the law.

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.

In 1961 governmental immunity gets the ax

In Governmental Immunity on January 6, 2011 at 3:15 am

American citizens finally got tired of letting the “King” be above the law.  They wanted their government to be accountable just like everyone else.  In 1961, the Washington legislature agreed that governement should be able to be sued: 

“All local governmental entities, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation. Filing a claim for damages within the time allowed by law shall be a condition precedent to the commencement of any action claiming damages. The laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory.”

 Revised Code of Washington 4.96.010(1)

The dark age of governmental immunity

In Governmental Immunity on January 6, 2011 at 3:07 am

By Karen Koehler

“The King can do no wrong!”

The King was perfect and holy.  He lived in a world above common people.  The law could not touch him.  The King bowed to no one.  And he couldn’t be sued. Even if he did terrible things.

He is “sovereign and independent” within his own dominions and “owes no kind of subjection to any other potentate on earth. Hence it is that no suit or action can be brought against the King, even in civil matters, because no court can have jurisdiction over him, for all jurisdiction implies superiority of power.” … The law supposes it impossible that the King himself can act unlawfully or improperly. It cannot distrust him whom it has invested with the supreme power; and visits on his advisors and ministers the punishment due to the illegal measures of government. Hence the legal apothegm that the King can do no wrong.”  How it came to be applied in the United States of America, where the prerogative is unknown, is one of the mysteries of legal evolution.   Text taken from 34 Yale Law Journal 1 (1924).

This old royal concept snuck its way into American law.  Because no one questioned it.  But as the years passed, people decided it wasn’t fair or right.  In a democratic society, nothing and no one should be above the law.