Cook v. State

521 P.2d 725, 83 Wash. 2d 599, 1974 Wash. LEXIS 937

• Court: Washington Supreme Court
• Decided: April 18, 1974
• Docket: 42221
• Status: Published

Opinions

Hamilton, J.

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 “non-claim” 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 .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. 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, .100 and .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 Wn.2d 726, 419 P.2d 984 (1966); O’Donoghue v. State, 66 Wn.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, .100 and .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 is 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 .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 claimant 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 unrealistic to require that 13-year-old Karen, while lying severely injured and paralyzed in the hospital for 6 months, should, within 120 days of the accident, prepare and verify a claim or direct her mother or anyone else to do so on her behalf. In the second place, it would be almost as unconscionable to require that Karen’s allegedly unlettered mother, stricken with the death of one child and greatly concerned over the survival of a second, ferret out the facts of the accident, the law pertaining to potential liability and the filing requirements, and thereupon file a claim as Karen’s representative or solicit the aid of another to do so during the course of Karen’s first 4 months in the hospital.

Certainly, the legislature in enacting the aforementioned proviso to RCW 4.92.100 could not have intended such a harsh and unjust result — a result which invidiously discriminates between those who are tortiously injured to the point of mental or physical incapacity for 4 or more months and those who are more fortunate and suffer less disabling injuries. The possibility that a friend or relative may possess the foresight to file a timely claim on behalf of an incapacitated victim, in our view, provides too slender a reed to bridge the inherent discrimination, and it becomes arbitrary and unreasonable when it penalizes the incapacitated if a friend or relative through inadvertence or ignorance fails to act.

Early in this court’s history, we recognized the manifest injustice of a rigid and unyielding imposition of time prescriptions in “nonclaim” provisions upon persons incapacitated by the accident in suit. We held that it became at least a question of fact whether incapacity from the accident involved prevented timely compliance with an applicable “nonclaim” provision. Born v. Spokane, 27 Wash. 719, 68 P. 386 (1902); Ehrhardt v. Seattle, 33 Wash. 664, 74 P. 827 (1903); Ehrhardt v. Seattle, 40 Wash. 221, 82 P. 296 (1905).

Commencing with Ransom v. South Bend, 76 Wash. 396, 136 P. 365 (1913), and extending through the introduction of provisos similar to the one here involved (Haynes v. Seattle, 87 Wash. 375, 151 P. 789 (1915), Forseth v. Tacoma, 27 Wn.2d 284, 178 P.2d 357 (1947), and Kelleher v. Ephrata School Dist. 165, 56 Wn.2d 866, 355 P.2d 989 (1960)), this court, without overruling the Born approach, tended to veer away from the doctrine there announced. We were in error in so doing.

Although there is a division of authority as to ex-cusability from strict compliance with time limitations in “nonclaim” provisions among other state courts (Tort Claims Against Public Entity — Notice, Annot., 44 A.L.R.3d 1108 (1972)), we would now, in reinvigorating the Born holding, adopt the view of the Supreme Court of our neighboring State of Alaska, as set forth in Maier v. Ketchikan, 403 P.2d 34 (Alas. 1965), at 37:

We adopt the view that failure to file a notice of claim within the time prescribed by the city charter may be excused because of the disability from which the claim arose and until a reasonable time after the disability ceases. The essential justice of such a view persuades us to adopt it for this jurisdiction. If, as appellant contends, he was injured by the negligence of the city, it would be basically unfair to deprive him of recourse to the courts if the injuries suffered prevented him from complying with the notice requirements of the charter. To permit such a situation to occur would make it possible for the city to take advantage of and benefit from its own wrong. This would not be consistent with our traditional conception of fair play and substantial justice.

Any other holding would, in our view, do violence to due process and equal protection concepts. In such cases, where the facts of incapacity justify it, we would deem that 120 days from removal of the disability would constitute a reasonable time within which a claim could be filed.

Accordingly, we reverse the order of dismissal and remand the cause for trial on the merits.

Hale, C.J., and Rosellini, Hunter, and Brachtenbach, JJ., concur.

1 “The legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state.” Const. art. 2, § 26. (Italics ours.)

2 Some of the claim statutes affected and the agencies to which they relate are: RCW 4.96.020 (political subdivisions, including fire protection districts, flood control districts, cemetery districts and irrigation districts); RCW 35.31.020 and RCW 35.31.040 (charter and noncharter cities); RCW 36.45.010 (counties); RCW 38.52.205 (civil defense related activities); RCW 47.60.250 (Puget Sound ferry and toll bridge system); and RCW 77.12.270 (game damage).