On Dec. 30, The Columbian ran an editorial endorsing special legal protections for state government agencies whose negligent actions or inactions cause harm to citizens. As victims’ representatives, we strongly object to this proposal.
The egregious part of this editorial is that it assumes state government gets sued just because it has “deep pockets,” and that somehow jurors see it as an easy target. Any honest assessment of the court system will quickly demonstrate that this is simply wrong.
Under our system of tort law, government is never responsible for anyone’s actions but its own, and is never judged on any failures or bad choices except for its own. These failures by the government must be the “proximate cause” of the injury or death inflicted on the citizen — that “but for” the government’s actions or inactions, the harm never would have occurred. Without meeting this standard, there is no liability and no fault assessed against the government at all. Washington already has strong laws against frivolous lawsuits. This ensures that lawsuits are based on solid facts and law or they are dismissed. It is not true, and perhaps deliberately deceptive, to say that government can be liable even when it did nothing wrong.
The principle that government must be accountable legally for the harm it directly causes to its citizens is a fundamental principle of our revolutionary history and the American republic. Sovereign immunity literally is a creature of English kings, meaning, “The king can do no wrong.” In line with this principle, Washington expressly waived sovereign immunity in 1961.
Behind the payouts are families and individuals whose lives have been shattered by the reckless or careless actions of the government. And behind these cases are citizen taxpayers who carefully considered the merits and facts of these cases as jurors. The concept of providing special protections to negligent government agencies ignores our fundamental concept of checks and balances. We have three separate branches of government for a reason. When government runs amok, our citizens hold the ultimate power of accountability in their hands under our civil justice system. When we provide special protections for the wrongdoer, we victimize innocent victims twice.
Seeking justice
As advocates for people with disabilities and victims of violent crime, we know how important it is to have a court system that serves as a check on misconduct. Many families that have been crushed by preventable tragedies and heinous crimes have had to seek justice, accountability and change through the courts. In one of our cases, it took 12 years and two trips to the Supreme Court to get justice. Now, we work every day to prevent these tragedies from happening again.
Special protections for negligent government agencies sanctions government incompetence. Lawsuits against government have forced positive changes to inept government bureaucracies over the years and have helped prevent future catastrophes from occurring. These changes include stronger assessments and monitoring of dangerous felons; rigorous background checks on licensed foster home providers to prevent sex offenders from caring for our most vulnerable citizens; changes to specific road conditions and designs that cause serious accidents; and better medical communication procedures to protect patients. Lawsuits often serve as a catalyst for positive change. They are the canary in the coal mine, alerting us to dangerous programs or conditions.
The experience in Washington has shown that aggressive prioritization of risk management and loss prevention programs is the best deterrent to actions causing injuries and harm to innocent citizens. They prevent injuries from occurring while also saving the state money. In 2003 and 2004, when these programs were started and emphasized, payouts dropped an astonishing 75 percent in one biennium, and stayed in that range for five years. Only when that emphasis faded did payouts start to rise. We need to insist our state government work to prevent injuries and suffering as the means to reduce payouts. This is an approach we can all support.
Jesse Magana is an advocate for disabled citizens in Vancouver. Jenny Wieland is executive director of Families and Friends of Violent Crime Victims.
