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Abstract

Washington's waiver of sovereign immunity has been in force for nearly forty-five years, during which time many questions have been answered. New litigation, however, continues to expand the scope of the waiver, and the extent of liability continues to raise new questions and present difficult problems. Major problems include the uncertainty of case-by-case determinations of government liability and the cost of liability for inherently risky governmental programs, such as corrections and child welfare. Part I of this Article examines the waiver against the background of prior Washington law and the pattern of immunity waivers in other jurisdictions. This examination reveals surprising features of prior Washington law, such as the narrow scope of liability for local governments which lacked sovereign immunity before 1961. It also reveals fundamental differences between waivers in Washington and in other states. Washington's waiver contains no partial immunities, no limits on claims or damages, and no liability standards for government; it requires neither legislative review and approval of claims, nor adjudication of claims by special tribunals. Waivers in other states contain at least one of these features; most contain two or more. Part II of the Article summarizes three very different periods of development of government liability law following the 1961 waiver. This part of the Article includes summaries of state experience with claim and defense costs, the effect of two tort reform acts (1981 and 1986), and three proposals for legislative control of government tort liability. Part II also summarizes the substance of Washington's governmental liability law and compares it to the laws in other jurisdictions. In the public duty doctrine, for example, Washington law is similar to other jurisdictions. In other areas, including crimes committed by released criminal offenders, Washington law is very different. These differences have proved controversial because they have generated high costs and affected administration of important programs. The law in these areas remains unsettled. Part III of this Article analyzes the results of Washington's waiver and identifies problems caused by the waiver, arguing that court interpretation of the waiver produced a result that was not intended by legislators 45 years ago-expansive liability for purely governmental functions and decisions. This liability has produced high legal defense costs and increasing tort payouts for harms caused, not by the government directly, but by third parties who have contact with broad government programs. The Legislature should take action to ensure that the waiver serves its original intent. The open-ended waiver should be discarded in favor of a statutory scheme that defines the extent of liability for various government functions, as such a scheme would better serve the public interest.

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