Sovereign Immunity Protects Government But Harms All of Us

In a recent Seattle Times article guest columnist Mickey Gendler argues that a proposal which gives special legal protections to state government when its negligent conduct results in harm to citizens should be rejected. Agreed!

Here's  the story:

THE Washington state Legislature is currently considering special legal protections for state government when its reckless and careless conduct inflicts preventable harms and injuries onto the people of our state.
The Seattle Times has published editorials and a column by Attorney General Rob McKenna endorsing these proposals. It's ironic that my case has been cited to support the concept of sovereign immunity that I personally oppose.

Proponents of special protections for government argue that the state gets sued even when it follows all the rules. This is categorically false.

In our legal system, government is never judged on any failures or bad choices except for its own. The legal standard is that unless an injury would not have occurred but for the government's negligence, the government is not liable. Without meeting this standard, there is zero liability assessed against the government. It is deliberately deceptive to say otherwise. For the government to be liable, it must be directly responsible for the injury. Any claim against the government that cannot meet this standard is dismissed.
My case is a great example of how government accountability is an important catalyst to change government behavior and fix dangerous conditions to make all of us safer. I sustained a life-changing spinal cord injury due to a defective road condition. The state knew the road was defective and dangerous because of a similar crash that occurred there but did nothing to correct it. The state Legislature is now considering whether to cap damage-award limits at $1 million to $2 million, calling these caps "very generous." But the state admitted that my future medical expenses alone will exceed that cap. McKenna even called my settlement "appropriate" because the state "erred." McKenna added, "If the state messes up, then someone who is harmed ought to be compensated by the state."

The same state official who supports changing the law to deny victims like me even their medical expenses recently agreed that the state should pay when it damages property. Property should not have greater protection against government wrongdoing than life and health. Just recently the Seattle Times editorial board praised a $10 million settlement as a wise government decision where egregious acts by police caused a catastrophic brain injury and paralysis, emphasizing that the case should lead to changes in police training and behavior. Two years after my crash, the state fixed the defective road condition for a mere $7,000.

Numerous bills have been circulating in the Legislature to give immunity to various state agencies where they have failed to do their job. In fact, the Legislature is still examining the possibility of capping damages for cases like mine as lawmakers move through budget negotiations. This is the wrong way to go.

Aggressive risk-management and loss-prevention programs are the best deterrent to preventable injuries and harm to innocent citizens. It's also the best way to save taxpayers' money. In 2003 and 2004 when these programs were modeled after best practices from private and public sector experience, costs dropped an astonishing 75 percent in one biennium, and stayed in that range for five years. Only when that emphasis on loss prevention faded, did these costs start to rise — costs driven by preventable and egregious harms that the state was responsible for.

We need to insist our state government works to prevent injuries and suffering as the means to reduce these costs and not relinquish our power to hold government responsible under the law.

Thanks to Mickey Gendler for writing this important article. Mike is an attorney in Seattle.