Cook v. State

• Citation: 521 P.2d 725,83 Wn.2d 599
• Decision Date: 18 April 1974
• Docket Number: No. 42221,42221
• Parties: John P. COOK, as guardian ad litem for Karen Shockley, a minor, Appellant, v. The STATE of Washington, Respondent.
• Court: United States State Supreme Court of Washington

Page 599

83 Wn.2d 599

521 P.2d 725

John P. COOK, as guardian ad litem for Karen Shockley, a minor, Appellant, v. The STATE of Washington, Respondent.

No. 42221.

Supreme Court of Washington, En Banc.

April 18, 1974.

Cushman, Thomas & Holt, R. M. Holt, Issaquah, for appellant.

Slade Gorton, Atty. Gen., Angelo R. Petruss, Asst. Atty. Gen., Olympia, for respondent.

HAMILTON, Associate Justice.

On July 29, 1969, the vehicle in which 13-year-old Karen Shockley was riding collided with a stump located next to the roadway on Highway 203 between Fall City and Carnation, Washington. Prior to the accident Karen had resided with her mother and three other children, one of whom was killed in the accident in suit. Her father, divorced from her mother, resided in the eastern part of the United States and offered her no advice. Her mother had only an eighth grade education and Karen herself had been retained in school due to unsatisfactory grades.

As a result of the accident, Karen suffered an injury to her nervous system which caused paralysis from the waist down, a broken left shoulder, a broken right leg, injury to the left leg, broken ribs on the left side, broken left hip, a broken pelvis, a ruptured spleen requiring surgical removal, severe injury to the bladder, liver and kidneys requiring surgical repair, and a bone removal near the tailbone. She was hospitalized until January 22, 1970, when confined to a wheelchair she returned to her mother's home. During the hospitalization period, her mother was primarily and vitally concerned with Karen's health and recovery. The first time Karen or her mother learned of a potential liability on the part of the state was when her mother contacted an attorney concerning another matter on March 19, 1970. Thereafter, on March 27, 1970, a claim against the state, charging a failure to post warning signs and to remove the stump from the right-of-way, was filed on Karen's behalf by her present attorney. This claim was filed with the state auditor within 120 days after Karen's release from hospitalization, although the filing in fact occurred a full 242 days from the date of the accident.

The King County Superior Court dismissed the suit upon the basis that the requirements of RCW 4.92.100, our 'nonclaim' statute, had not been met, in that more than 120 days had elapsed between the date of the accident and the filing of a claim.

The instant 'nonclaim' statute is part of a statutory scheme which is set up to provide for liability of the state for the tortious conduct of its agents:

The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.

RCW 4.92.090 (Laws of 1963, ch. 159, § 2, p. 753; Laws of 1961, ch. 136, § 1, p. 1680);

All claims against the state for damages arising out of tortious conduct shall be presented to and filed with the state auditor within one hundred twenty days from the date that the claim arose. All such claims shall be verified and shall accurately describe the conduct and circumstances which brought about the injury or damage, describe the injury or damage, state the time and place the injury or damage occurred, state the names of all persons involved, if known, and shall contain the amount of damages claimed, together with a statement of the actual residence of the claimant at the time of presenting and filing the claim and for a period of six months immediately prior to the time the claim arose. If the claimant is incapacitated from verifying, presenting, and filing his claim in the time prescribed or if the claimant is a minor, or is a nonresident of the state absent therefrom during the time within which his claim is required to be filed, the claim may be verified, presented, and filed on behalf of the claimant by any relative, attorney, or agent representing him.

With respect to the content of such claims this section shall be liberally construed so that substantial compliance will be deemed satisfactory.

RCW 4.92.100 (Laws of 1967, ch. 164, § 2, p. 793; Laws of 1963, ch. 159, § 3, p. 753);

No action shall be commenced against the state for damages arising out of tortious conduct until a claim has first been presented to and filed with the state auditor. The requirements of this section shall not affect the applicable period of limitations within which an action must be commenced, but such period shall begin and shall continue to run as if no claim were required.

RCW 4.92.110 (Laws of 1963, ch. 159, § 4, p. 754). These statutes have been passed pursuant to and modifying the doctrine of sovereign immunity, and constitute a direct response to the legislative obligation to control and condition suits against the state as commanded by Const. art. 2, § 26. ¹

In this appeal, the plaintiff contends that RCW 4.92.100 and 4.92.110, in barring Karen's action against the state for failure to file a timely claim, deprives Karen of the guarantees of the fourteenth amendment to the United States Constitution, including due process and equal protection of the laws. Plaintiff urges that the 'nonclaim' statute in its entirety be declared invalid.

Although we reverse the judgment of the trial court and reinstate plaintiff's claim, we decline to do so on the broad, sweeping grounds advocated by plaintiff, for to do so would, in our view, abolish all vestiges of the doctrine of sovereign immunity and implicitly invalidate every other state, county, municipal, and district nonclaim statute, ordinance or provision. ²

In support of the contention of total invalidity, plaintiff relies heavily on Reich v. State Highway Dep't, 386 Mich. 617, 194 N.W.2d 700 (1972). In that case the Michigan Supreme Court held that a state statute similar in substance to RCW 4.92.100 violated the due process provisions of the Michigan and federal constitutions, as well as the equal protection clauses of the federal constitution.

We find the Reich case distinguishable and its reasoning unpersuasive. The Michigan high court had previously interpreted the Michigan constitution and the tort claim statutes as providing an absolute waiver of sovereign immunity, thereby giving rise to a vested right of action. Grubaugh v. City of St. Johns, 384 Mich. 165, 180 N.W.2d 778 (1970); Minty v. Board of State Auditors, 336 Mich. 370, 58 N.W.2d 106 (1953). To the contrary, we in this state have not interpreted our tort claim waiver statutory scheme (RCW 4.92.090, 4.92.100 and 4.92.110), when viewed in pari materia and in the light of Const. art. 2, § 26, as amounting to a total, absolute, irrevocable waiver of sovereign immunity. Rather, we have looked upon it as a somewhat limited and conditional waiver of sovereign immunity which does not, absent compliance with the notice requirement, ipso facto ripen into a viable vested right of action. Nelson v. Dunkin, 69 Wash.2d 726, 419 P.2d 984 (1966); O'Donoghue v. State, 66 Wash.2d 787, 405 P.2d 258 (1965). Thus, the Michigan high court's determination that, because of the vested right of action accruing under the absolute waiver of that state's sovereign immunity, the claim statute erects an unconstitutional discrimination between subclasses of tort-feasors, I.e. private and governmental, and victims of negligent conduct, I.e. victims of private negligence and victims of governmental negligence, becomes unpersuasive against the interpretation of a conditionally limited legislative waiver of sovereign immunity in this state.

We are satisfied that our legislature in granting its conditional waiver of governmental tort immunity, as evidenced by RCW 4.92.090, 4.92.100 and 4.92.110, was justifiably cognizant of its responsibilities under Const. art. 2, § 26 and of the realistic and practical differences between private tort-feasors and the state and its political subdivisions as potential tort-feasors. The state and its political subdivisions with the multitude of departments, agencies, officers and employees and their diverse and widespread activities, touching virtually every aspect of life within the state, render the state and its subdivisions inherently different from any ordinary private tort-feasor. Public funds as opposed to private funds are involved. The number of claims against governmental agencies are vastly greater than against any individual private tort-feasor. An ordinary private tort-feasor is normally immediately aware of an incident involving potential liability, whereas the claim filing statute is usually the only sure and certain means by which the state or its subdivisions may be alerted to potential liability arising from a governmental activity. These considerations we believe adequate to sustain the import of RCW 4.92.100 and 4.92.110 against the constitutional challenge on due process and equal protection grounds advanced by Reich.

The remaining question, then, is whether within the subclass of victims of governmental tort there exists any due process or equal protection discordance. In this respect, it is our view that there does arise an incompatability with due process and equal protection requirements, but only in and with an inflexible and unyielding application of that portion of RCW 4.92.100, which provides:

If the claimant is incapacitated from verifying, presenting, and filing his claim in the time prescribed or if the claimant is a minor, . . . the claim may be verified, presented, and filed on behalf of the claiment by any relative, attorney, or agent representing him.

Given Karen's minority, severe physical injuries, hospitalization, and major surgery, coupled with her mother's asserted grief, worry, and educational disadvantage, it would appear manifestly unjust and fundamentally unfair to apply the above-quoted portion of RCW 4.92.100 as to permit no excuse from strict compliance with the filing time requirement. In the first place, it is totally...