Hunter v. North Mason High School

• Citation: 539 P.2d 845,85 Wn.2d 810
• Decision Date: 11 September 1975
• Docket Number: No. 43637,43637
• Parties: Gerald HUNTER, Jr., a minor, by his guardian ad Litem, Gerald Hunter, Sr., Respondent, v. NORTH MASON HIGH SCHOOL et al., Petitioners.
• Court: United States State Supreme Court of Washington

Page 810

85 Wn.2d 810

539 P.2d 845

Gerald HUNTER, Jr., a minor, by his guardian ad Litem Gerald Hunter, Sr., Respondent, v. NORTH MASON HIGH SCHOOL et al., Petitioners.

No. 43637.

Supreme Court of Washington, En Banc.

Sept. 11, 1975.

Bishop, Cunningham & Costello, Leonard W. Costello, Bremerton, for petitioners.

Hoff & Cross, Geoffrey C. Cross, Tacoma, Owen A. Johnson, Seattle, Paul Sinnitt, Tacoma, for respondent.

UTTER, Associate Justice.

This case presents this court once again with the question of the scope and constitutionality of statutes requiring persons suing the government to give it notice of their claims within a short period after they arise. Respondent Hunter's suit against the petitioner high school and school district for injuries he sustained in a physical education class was dismissed on the grounds that he had failed to give the defendants formal notice of his claim within 120 days, as required by RCW 4.96.020. ¹ The dismissal was reversed by the Court of Appeals, which held that the respondent's minority excused him from compliance with the 'nonclaim' requirements of that section. Hunter v. North Mason High School, 12 Wash.App. 304, 529 P.2d 898 (1974). We affirm that decision, but on the ground that 'nonclaim' statutes unjustifiably discriminate against persons with claims against the government and its subdivisions in violation of the equal protection clause of the Fourteenth Amendment.

In September 1970, respondent Gerald Hunter incurred a knee injury in a rugby game held as part of a physical education class at North Mason High School. His injury apparently required considerable medical attention, and some 50 days after the injury his father notified the school principal that his insurance might not cover the costs and that it might be necessary to resort to the school's Catastrophic Major Medical Policy. The principal conveyed this information to the school's insurance carrier by letter. He also wrote short notes to the school district and respondent's doctor describing the circumstances of the injury. Neither he nor Mr. Hunter, however, gave the district formal notice of the claim as required by RCW 4.96.020. When, more than a year after the injury was incurred, this suit was filed, the petitioners moved to dismiss it on the grounds of respondent's noncompliance with that statute; the trial court granted their motion.

In Cook v. State, 83 Wash.2d 599, 521 P.2d 725 (1974), eight members of this court voted to reverse the dismissal of a minor's suit against the state for injuries she received in an automobile accident. Five of the Justices rested their decision on the ground that the plaintiff's age and disabilities excused her noncompliance with RCW 4.92.100, which requires notice of claims against the state within 120 days from the date they arise. Three Justices concurred on the basis of their conviction that the section was invalid altogether, because it deprived victims of governmental torts of due process and equal protection; in dictum the majority opinion rejected this contention.

The same day Cook was filed a similar decision was rendered in Shafer v. State, 83 Wash.2d 618, 521 P.2d 736 (1974). There, again, three concurring Justices held that the state nonclaim statute was unconstitutional, but again the plurality decision was based on nonconstitutional grounds.

The issues presented in this case are very similar to those in Cook. The Court of Appeals decision expanded Cook's majority opinion by holding that not only severely disabled minors, but All minors, are exempt from the requirements of nonclaims statutes. Cook's holding was expressly based on its majority's recognition that failure to except seriously injured minors from the notice requirements would 'do violence to due process and equal protection concepts.' Cook v. State, supra, 83 Wash.2d at 606, 521 P.2d at 729. The Court of Appeals in this case justified its ruling on similar grounds. Hunter v. North Mason High School, supra, 12 Wash.App. at 306--07, 529 P.2d 898. We feel, however, that rather than attempting to avoid the constitutional problems inherent in this type of statute by continuing to fashion judicial exceptions to their plain language, we should face the constitutional issue directly and acknowledge their infirmity.

The effect of this and other ² nonclaim statutes is to deny a right of action to persons harmed by governmental misfeasance unless they provide the government with notice of their injuries within a short time after they occur. This prerequisite to tort recovery has no counterpart in actions between private parties. The statutes thus create two classes of tortfeasors, governmental and nongovernmental, and grant the one a procedural advantage not available to the other. Concomitantly they produce two classes of tort victims and place a substantial burden on the right to bring an action of one of them.

Just as the notice requirement by its operation divides the natural class of negligent tortfeasors, so too the natural class of victims of negligent conduct is also arbitrarily split into two subclasses: victims of governmental negligence who must meet the requirement, and victims of private negligence who are subject to no such requirement.

Reich v. State Highway Dep't, 386 Mich. 617, 623, 194 N.W.2d 700, 702 (1972). Under this statutory system, victims of governmental torts must seek legal advice and act to preserve their claims within 120 days of receiving their injury. Other personal injury plaintiffs need only act within the limitations period--3 years at least in the case of adults (RCW 4.16.080), often much longer in the case of minors, against whom the limitations period does not run. RCW 4.16.190. ³

Nonclaim statutes constitute a barrier to suit for a significant number of victims of governmental misfeasance. It is a rare plaintiff who happens to know of the short notice period he must comply with, ⁴ or to consult a lawyer before his time to file has expired. Only where the injured person is educated or well advised enough to know in advance of his or her legal rights is compliance with the notice requirements realistically possible. By increasing the demands on the potential plaintiff, these statutes grossly magnify the unfair impact of the unequal distribution of legal counsel and knowledge between rich and poor.

Ordinarily the affluent and educated tort victim has a retained or family attorney. His attorney may ethically--and probably does--come forward to inform his client of the notice requirement. Lowa Code of Professional Responsibility for Lawyers, Ethical Canon 2--3. It is the poor, uneducated tort victim, without counsel and unacquainted with lawyers, who naively assumes he will be compensated and unknowingly permits the notice time to lapse.

Lunday v. Vogelmann, 213 N.W.2d 904, 911--12 (Iowa 1973) (Reynoldson, J., disenting).

The effect of the notice requirement on tort victims not fortunate enough to be aware of it is to deny them their cause of action. The right to be indemnified for personal injuries is a substantial property right, not only of monetary value but in many cases fundamental to the injured person's physical well-being and ability to continue to live a decent life. Statutory classifications which substantially burden such rights as to some individuals but not others are permissible under the equal protection clause of the Fourteenth Amendment only if they are

'reasonable, not arbitrary, and . . . rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920).

Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Kahn v. Shevin, 416 U.S. 351, 355, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974); Dandridge v. Williams, 397 U.S. 471, 520--22, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (Marshall, J., dissenting); Washington Statewide Organization of Stepparents v. Smith, 85 Wash.2d 564, 572, 536 P.2d 1202 (1975) (Utter, J., concurring). ⁵

The 'ground of difference' most often put forward as justification for the special demands nonclaim statutes place on persons with claims against the government and its subdivisions is the size of governmental institutions and the number of activities they are involved in. The government, it is argued, is so large and subject to so many claims that its agents are not necessarily aware of potentially liability-producing incidents, and therefore need special notice to adequately investigate and defend against them. Cook v. State, supra at 603, 521 P.2d 725. ⁶ But if this be the reasoning behind these statutes, the discrimination they make poorly relfects it. Givernmental bodies range in size from small municipal corporations such as the petitioner school district to the State itself. As a class they are neither larger nor more liability-prone than the class of private tortfeasors, which includes everything from single individuals to giant corporations financially larger even than the State.

Most governmental subdivisions are small enough for their officials to know of incidents which may subject them to liability. In addition, they possess special investigative resources which make them 'in most instances better equipped to investigate and defend negligence suits than most private tortfeasors, for whom no special notice privileges are provided by law.' Cook v. State, supra at 614, 521 P.2d at 734 (concurring opinion). In the case at bar the school and school district were aware from the first of respondent's injury and their possible liability therefor. Even before Mr. Hunter contacted the principal, and he in turn the district, the school had a report of the incident made and on file. Such cognizance of possible liabilities is likely the rule rather than the exception when municipalities are involved....