Locke v. City of Seattle

• Decision Date: 13 December 2007
• Docket Number: No. 79381-6.,No. 79222-4.,79222-4.,79381-6.
• Citation: 172 P.3d 705
• Parties: Kevin J. LOCKE and Tori Locke, husband and wife and the marital community composed thereof, Respondents, v. The CITY OF SEATTLE, a municipal corporation; and The City of Seattle Fire Department, Petitioners, and James Sewell; Molly Douce; John Cameron; John Does 1-5, in their individual capacities; The State of Washington, its subdivisions and agencies; and The Washington State Patrol, Defendants. Margaret A. Lindell, personal representative for the estate of Gary R. Lindell, deceased, Respondent, v. The City of Seattle, a municipal corporation, Petitioner.
• Court: Washington Supreme Court

172 P.3d 705

Kevin J. LOCKE and Tori Locke, husband and wife and the marital community composed thereof, Respondents, v. The CITY OF SEATTLE, a municipal corporation; and The City of Seattle Fire Department, Petitioners, and James Sewell; Molly Douce; John Cameron; John Does 1-5, in their individual capacities; The State of Washington, its subdivisions and agencies; and The Washington State Patrol, Defendants.

Margaret A. Lindell, personal representative for the estate of Gary R. Lindell, deceased, Respondent, v. The City of Seattle, a municipal corporation, Petitioner.

No. 79222-4.

No. 79381-6.

Supreme Court of Washington, En Banc.

Argued June 26, 2007.

Decided December 13, 2007.

Pamela A. Okano, Reed McClure, Marcia M. Nelson, Rebecca Boatright, Seattle City Attorneys Office, Seattle, WA, for Petitioners.

David J. Wieck, John L. O'Brien, O'Brien Barton Wieck & Joe, PLLP, Issaquah, WA, William Joel Rutzick, Schroeter Goldmark & Bender, Seattle, WA, Todd Whitney Gardner, Attorney at Law, Renton, WA, for Respondents.

Alexander John Skalbania, Emmal Skalbania & Vinnedge, PLLC, Seattle, WA, Thomas A. Woodley, Baldwin Robertson, International Assoc. of Fire Fighters, Washington, DC, Amicus Curiae on behalf of International Association of Fire Fighters.

Daniel Brian Heid, City of Auburn, Auburn, WA, Amicus Curiae on behalf of Washington State Assn. of Municipal Attorneys.

William B. Aitchison, Portland, OR, Christopher K. Vick, Seattle, WA, Amicus Curiae on behalf of Washington Council of Police and Sheriffs.

William B. Aitchison, Portland OR, Christopher K. Vick, Seattle, WA, Amicus Curiae on behalf of Seattle Police Officers Guild.

William B. Aitchison, Portland, OR, Christopher K. Vick, Seattle, WA, Amicus Curiae on behalf of King County Police Officers' Guild.

Donald George Daniel Jr., Elizabeth Ann McIntyre, Law Lyman Daniel Kamerrer et al., Olympia, WA, Amicus Curiae on behalf of Washington Cities Insurance Authority.

Bryan Patrick Harnetiaux, Spokane, WA, Kelby Dahmer Fletcher, Peterson Young Putra et al., Seattle WA, Amicus Curiae on behalf of Washington Trial Lawyers Assoc.

OWENS, J.

¶ 1 In these consolidated cases, respondents Kevin Locke and Gary Lindell's personal representative sued the city of Seattle (City) for injuries sustained during Locke's and Lindell's employment. In both cases, the City challenges the "right to sue" provision in the Washington Law Enforcement Officers' and Fire Fighters' Retirement System Act (LEOFF), chapter 41.26 RCW. See RCW 41.26.281 ("right to sue" provision). The City contends that LEOFF's "right to sue" provision violates sovereign immunity and the privileges and immunities clause in article I, section 12 of the Washington Constitution. In Locke, the City also contends that Locke was not a fire fighter at the time of his injury and that the evidence presented at trial does not support the jury's future damages award. We affirm the Court of Appeals in part and hold that the "right to sue" provision abrogates the City's sovereign immunity, that the City has no standing to challenge the provision under Washington's privileges and immunities clause, that Locke was a fire fighter under LEOFF, and that the evidence supported the jury's future damages award.

FACTS

Locke

¶ 2 The City hired Locke as a fire fighter in 2000 and sent him to a 12-week fire fighter training course. During the 10th week of training, Locke sustained injuries when he fainted from dehydration and fell from a 50-foot ladder while performing a practice rescue with a 120-pound mannequin. Locke sued the City for his injuries under the "right to sue" provision in LEOFF. A jury determined that the City was negligent and returned a verdict in Locke's favor. The City appealed, arguing in part that Locke was not a fire fighter under LEOFF because he was in training and that LEOFF's "right to sue" provision violated several constitutional provisions. The Court of Appeals affirmed the jury verdict and denied the City's constitutional claims in a partially published opinion. Locke v. City of Seattle, 133 Wash. App. 696, 137 P.3d 52 (2006). We accepted review. 158 Wash.2d 1025, 152 P.3d 347 (2007).

Lindell

¶ 3 Seattle Police Officer Gary Lindell's personal representative brought a wrongful death action against the City under LEOFF's "right to sue" provision for Lindell's 2002 death. According to the complaint, Lindell died from injuries he sustained when he fell from his service horse during a 1999 training exercise for the Seattle Police Mounted Patrol Unit. The City moved for summary judgment, challenging the constitutionality of the LEOFF statute. The trial court denied the City's motion and the City appealed. A Court of Appeals commissioner denied review based on the Court of Appeals opinion in Locke and the court denied the City's motion to modify. We accepted review on the issues of sovereign immunity and privileges and immunities and consolidated the appeal with Locke.

ISSUES

¶ 4 A. Does LEOFF's "right to sue" provision violate the City's sovereign immunity?

¶ 5 B. Does LEOFF's "right to sue" provision violate Washington's privileges and immunities clause?

¶ 6 C. Is Locke, a fire fighter in training school, a Plan II member under LEOFF?

¶ 7 D. Is "excess damages" an element of a LEOFF claim?

¶ 8 E. Does evidence support the jury's award for Locke's future damages?

ANALYSIS

A. Does LEOFF's "right to sue" provision violate the City's sovereign immunity?

¶ 9 The City in both Locke and Lindell argues that the City is immune from suit under sovereign immunity principles. RCW 41.26.281 grants law enforcement officers and fire fighters the "right to sue" their employers for damages over the amount received under workers' compensation. See Fray v. Spokane County, 134 Wash.2d 637, 655, 952 P.2d 601 (1998); accord Hauber v. Yakima County, 147 Wash.2d 655, 660, 56 P.3d 559 (2002). Whether the legislature has abrogated the City's sovereign immunity by statute is a question of statutory interpretation. As with all questions of law, we review questions of statutory interpretation de novo. Berrocal v. Fernandez, 155 Wash.2d 585, 590, 121 P.3d 82 (2005) (citing Enter. Leasing, Inc. v. City of Tacoma, 139 Wash.2d 546, 552, 988 P.2d 961 (1999)).

¶ 10 A municipality derives its sovereign immunity from the State. Kelso v. City of Tacoma, 63 Wash.2d 913, 916-17, 390 P.2d 2 (1964) (discussing municipality sovereign immunity). The state legislature may waive such immunity as provided in article II, section 26 of the Washington Constitution: "The legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state." Accord Coulter v. State, 93 Wash.2d 205, 207, 608 P.2d 261 (1980) ("[T]he abolition of sovereign immunity is a matter within the legislature's determination."). The City argues that the legislature has not waived the municipality's sovereign immunity from suits under LEOFF.

¶ 11 In Locke, 133 Wash.App. at 702-04, 137 P.3d 52, the Court of Appeals ruled that the legislature waived the City's sovereign immunity by enacting RCW 4.96.010(1), which provides in pertinent part as follows:

All local governmental entities . . . 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.

(Emphasis added.) The City contends that RCW 4.96.010(1) does not waive its sovereign immunity because private employees may not sue their employers under LEOFF and must instead recover exclusively under the Industrial Insurance Act, Title 51 RCW. We have already held that RCW 4.96.010 waives sovereign immunity for LEOFF Plan I members under an identical "right to sue" provision. Taylor v. City of Redmond, 89 Wash.2d 315, 320, 571 P.2d 1388 (1977). Thus, we must determine whether the same is true for LEOFF Plan II members.

¶ 12 The Court of Appeals held that RCW 4.96.010 waives the City's sovereign immunity, holding that "[t]he correct interpretation of RCW 4.96.010 is that if a government is found to have engaged in tortious conduct under applicable substantive law, which may or may not be different for government than for private parties, then the government will be liable for such tortious conduct `to the same extent as if [it] were a private person or corporation.'" Locke, 133 Wash.App. at 703-04, 137 P.3d 52.

¶ 13 We hold that RCW 4.96.010 waives the City's sovereign immunity for suits under LEOFF. As we have previously articulated, the concern in RCW 4.96.010 is not to impose new, general public duties upon the municipality. E.g., J & B Dev. Co. v. King County, 100 Wash.2d 299, 304-05, 669 P.2d 468 (1983) (describing analysis under RCW 4.96.010), overruled on other grounds by Meaney v. Dodd, 111 Wash.2d 174, 759 P.2d 455 (1988); see also Beal v. City of Seattle, 134 Wash.2d 769, 784-86, 954 P.2d 237 (1998) (describing public duty doctrine). Allowing LEOFF members to sue their employers for negligent or intentional harm does not create a new municipal duty not otherwise existing for private parties. Further, the language of RCW 4.96.010 does not state that parties may sue governmental entities "only to the same extent as a private party may be liable." Rather, it merely notes that municipalities may not be liable for breaches of duties not generally existing for private entities or corporations. Thus, we hold that RCW 4.96.010 waives the City's sovereign immunity.

B. Does LEOFF's "right to sue" provision violate Washington's privileges and immunities clause?

¶ 14 The City also contends that the LEOFF "right to sue" provision violates Washington's privileges and immunities clause. The City has no rights of its own under the privileges and immunities clause, and it has not established standing to assert the rights of any other person or...