State needs to carefully consider liability reform

On average, the state of Washington pays out four times to 12 times as much as other states in legal judgments a year.

For example, the $50.2 million in settlements paid in 2009 was 10 times the amount in Oregon. Idaho paid out just $2 million that same year.

Attorney General Rob McKenna wants to change state law to put limits on state liability. It’s a reasonable request that merits a full airing in the 2011 legislative session.

The cases McKenna cites to bolster his argument are compelling.

There was the motorist who was sitting at the on-ramp to Interstate 405 in Kirkland on a Saturday. The on-ramp was metered that day, McKenna said, because a contractor was doing some work on the highway. The flow meter allows vehicles to advance one at a time to lessen traffic congestion.

A motorist in a pickup truck approached from the rear and slammed into the back of the stopped vehicle. Tragically, the innocent motorist was paralyzed in the accident. The driver of the pickup was sued, but so were the contractor and the state of Washington.

The contractor was sued because of the unusual use of the stop-and-go flow meter on a Saturday. The state was sued because a nearby overpass cast a shadow over the accident scene.

The fact that the pickup driver failed to stop and slammed into the stopped vehicle seemed immaterial. The result was a $30 million judgment.

Then there was the case of the bicycle rider whose wheel got stuck in a rut on the Montlake Bridge and was paralyzed in his fall. The award was $8 million.

Or the woman who was on community supervision for forging a $13 check whose probation officer had asked a court to revoke her probation and put her in jail. While that request was awaiting a judicial ruling, the woman was involved in a car/pedestrian accident. The state was sued for failure to revoke the woman’s probation sooner. The award, again, ran into the millions of dollars.

Then there was the sad case of the toddler who unlocked the door of the family home, unlocked the gate, climbed a neighbor’s fence and drowned in a lake. Attorneys for the grief-stricken family argued that the state should have had standards dictating the height of the neighbor’s fence.

McKenna notes that the state cannot and should not escape liability when the state is at fault. He argues, however, that there should be some limits on liability. Too often, he said, the state is viewed as the “deep pocket” and an easy target, even when the state’s role is minimal.

Rather than draft his own bill for legislative consideration, McKenna is working with lawmakers to push the issue forward in the upcoming legislative session. He has a half-dozen different suggestions on how the state’s liability can be limited and state dollars saved, but wants lawmakers to set the policy through their own legislation.

One idea would be to match the financial award to the state’s share of blame. If, for example, the state is judged to be 1 percent at fault, the state’s fair share of the financial award would be 1 percent, McKenna said.

Because the state of Washington is alone in not setting limits on liability, trial attorneys are searching for ways to make the state partially to blame then force the state to pay a lion’s share of the financial judgment.

McKenna has battled trial lawyers on the liability reform issue before — and lost. He believes that the state’s dire financial situation will force lawmakers to take a harder look at the issue this year.

The state is in inherently risky work. As McKenna notes, the state is equally likely to be sued if a Child Protective Services caseworker removes an at-risk child from a home or if the caseworker leaves the child in the home and something awful happens.

These are life and death decisions, and trial lawyers and juries will always second guess those difficult judgment calls. But the state’s liability extends far beyond CPS caseworkers.

As McKenna says, it only takes a couple of multi-million dollar jury awards or settlements to add up. Fifty million dollars a year in payouts is a sizeable sum — especially in a year when lawmakers are going to make drastic cuts in education and social service programs.

Given that this state stands alone without liability limits and given the increasing payouts, lawmakers owe it to citizens to at least give McKenna’s liability reform proposal a fair hearing and careful consideration.