Restarting high school sports, or even just bringing students back to campus, is not as easy a decision for school districts as you might think.
Liability laws unique to Washington have put school districts in an unenviable position during the COVID-19 pandemic, a former two-term state attorney general said.
Rob McKenna, who served as the state’s attorney general from 2005-2013, said Washington is on the far side of the bell curve when it comes to the potential liability burden for state and local government agencies, including school districts.
“We’re in the most extreme position when it comes to the issue of the liability of taxpayers for personal injury claims filed against state government and local government,” McKenna said in a half-hour long interview with the Eli Sports Network of Centralia this week. “That’s because, like other states, we waived immunity in such suits called sovereign immunity. Unlike other states, we waived it completely. And a series of state supreme court decisions dating back to the 1970s has moved the goalposts farther out, making it easier to sue governments in our state to obtain recovery for injuries.”
McKenna said the state has rule known as joint and several liability which not only allows government agencies to be named as co-defendants in a suit, but if it can be shown that the government agency is one percent at fault, the government agency could be held responsible for 100 percent of the claim damages.
“When I was in office, we were routinely paying out 10 times more a year than Idaho, six times more than Oregon” in judgements against the state, McKenna said. “We’re a bigger state than Idaho and Oregon, but we’re not that much bigger. If you wanted to compare Washington to a comparable-sized state, take Massachusetts. In those days, we were paying out four times more per year than Massachusetts in lawsuits, settlements and judgements when cases went to trial.”
McKenna said those risks are weighing heavily on school districts in their decision to reopen schools.
“When you talk about COVID-19 and the potential liability for high school sports and for the school districts that run them, it’s a real concern,” McKenna said. “It’s a real problem. … I have to believe that it factors into the decision most school districts have made to not reopen at all yet.”
Some states have taken steps to protect school districts amid the pandemic. McKenna said California is taking a “common-sense approach” by protecting school districts provided they make a good-faith effort to follow COVID-19 safety protocols. He believes Washington should follow suit.
“If (schools) are being treated as essential facilities, there needs to be protections in place, not to eliminate the responsibility to act responsibly, but to eliminate unfettered liability when someone can find a crack in the armor,” McKenna said.
To view the interview in full, go to elisportsnetwork.com.