Locke v. City of Seattle

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

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 Wn. App. 696, 137 P.3d 52

(2006). We accepted review. 158 Wn.2d 1025 (2007).

Lindell

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

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

immunity?

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

immunities clause?

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

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

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?

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

Wn.2d 637, 655, 952 P.2d 601 (1998); accord Hauber v. Yakima County, 147 Wn.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 Wn.2d 585, 590, 121 P.3d 82 (2005) (citing Enter. Leasing, Inc. v.

City of Tacoma, 139 Wn.2d 546, 552, 988 P.2d 961 (1999)).

A municipality derives its sovereign immunity from the State. Kelso v. City of

Tacoma, 63 Wn.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 Wn.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.

In Locke, 133 Wn. App. at 702-04, 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 Wn.2d 315, 320, 571 P.2d 1388 (1977). Thus, we must determine

whether the same is true for LEOFF Plan II members.

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 Wn. App. at 703-04.

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 Wn.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 Wn.2d 174, 759

P.2d 455 (1988); see also Beal v. City of Seattle, 134 Wn.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?

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 entity.

Washington's privileges and immunities clause provides, "No law shall be

passed granting to any citizen, class of citizens, or corporation other than municipal,

privileges or immunities which upon the same terms shall not equally belong to all

citizens, or corporations." Wash. Const. art. I, § 12. Where the text of a constitutional

provision is plain, the court must give the language its reasonable interpretation

without further construction. Larson v. Seattle Popular Monorail Auth., 156 Wn.2d

752, 757-58, 131 P.3d 892 (2006). By its express language, article I, section 12 does

not apply to municipal corporations.1

The City contends that article I, section 12 is violated by RCW 41.26.281

because while the City must pay workers' compensation benefits, the statute prevents

it from enjoying like immunity under the Industrial Insurance Act with other

employers. This is a claim that the City has been denied immunity enjoyed by other

employers and that it therefore is not treated equally. As a municipal corporation, the

City is not entitled to make this claim under article I, section 12.

The City also maintains that fire fighters and police officers should not enjoy

special rights that do not belong to other employees, i.e., the right to sue the City.

However, the City does not show how it has standing to complain about this asserted

unequal treatment. The case chiefly relied on by the City, Alton V. Phillips Co. v.

State, 65 Wn.2d 199, 396 P.2d 537 (1964), involved a special enactment that allowed

one specific contractor to sue the State notwithstanding statutes of limitations. The

State was allowed to challenge the unconstitutionality of the statute under article I,

section 12. But Alton V. Phillips involved a suit against the State, not against a

municipal corporation. It does not support the City's standing in this case.2 Because

the City does not have standing to bring a privileges and immunities claim, we do not

address that claim here.

C. Is a fire fighter attending a 12-week training program a LEOFF Plan II
member?

The City filed a motion for summary judgment in the trial court, contending that

the court lacked jurisdiction over Locke's suit against the City because Locke was a

fire fighter trainee and therefore not a LEOFF member entitled to sue under RCW

41.26.281. The trial court denied summary judgment and the Court of Appeals

affirmed, noting that the evidence revealed that the City enrolled Locke as a fire

fighter and that the relevant law did not distinguish between fire fighter trainees and

fully trained fire fighters. We review summary judgment de novo, engaging in the

same inquiry as the trial court. City of Sequim v. Malkasian, 157 Wn.2d 251, 261, 138

P.3d 943 (2006). Summary judgment is appropriate when "there is no genuine issue

as to any material fact and . . . the moving party is entitled to a judgment as a matter of

law." CR 56(c).

LEOFF defines "'[f]ire fighter'" as "[a]ny person who is serving on a full time,

fully compensated basis as a member of a fire department of an employer and who is

serving in a position which requires passing a civil service examination for fire fighter,

and who is actively employed as such." RCW 41.26.030(4)(a). The Department of

Retirement Systems has also promulgated an administrative code governing the

definition of a fire fighter. According to the code, a "fire fighter" is someone

"employed in a uniformed fire fighter position by an employer on a full-time, fully

compensated basis, and as a consequence of . . . employment, . . . [has] the legal

authority and responsibility to direct or perform fire protection activities that are

required for and directly concerned with preventing, controlling and extinguishing

fires." WAC 415-104-225(2). The WAC further defines "'[f]ire protection

activities'" to "include incidental functions such as housekeeping, equipment

maintenance, . . . fire safety inspections, lecturing, performing community fire drills . .

. . These activities qualify as fire protection activities only if the primary duty of [the]

position is preventing, controlling and extinguishing fires." WAC 415-104-225(2)(a).

According to WAC 415-104-225(2)(d), a person is a "fire fighter," "regardless of [his

or her] rank or status as a probationary or permanent employee or [his or her]

particular specialty or job title."

In the instant case, the evidence at summary judgment revealed that Locke

passed the City of Seattle Public Safety Civil Service Commission fire fighter

examination on June 26, 1999, with a score of 94.66 -- placing him in the top 25

percent of all exam takers. Clerk's Papers (CP) at 2060, 2120. As a result of Locke's

exceptional score, the City offered him employment as an "entry level Fire Fighter" in

a March 27, 2000 letter. Id. at 2121-22 ("[C]ongratulations on your appointment as an

entry level Fire Fighter."). The letter further explained that upon acceptance of the

offer of employment Locke would enter recruit training -- a 12-week program

beginning April 19, 2000. Locke reported to recruit training as directed on April 19,

2000. Locke also filled out a "State of Washington Department of Retirement Systems

Enrollment Form," which listed his job title as "FIRE FIGHTER" and enrolled him in

LEOFF Plan II. Id. at 2123. On September 15, 2003, the Seattle Fire Department sent

Locke a letter confirming that, "Since the effective date of your appointment to Fire

Fighter, April 19, 2000, you have been a LEOFF II Retirement System member." Id.

at 2125.

The City argues that this evidence was insufficient to establish that Locke was a

fire fighter. Specifically, the City contends that Locke was not a fire fighter because

he was a member of a recruit class. The City likewise argues that Locke was not a fire

fighter because he did not have "the legal authority and responsibility to direct or

perform fire protection activities." WAC 415-104-225(2).

We reject the City's arguments and hold that Locke was a fire fighter for

purposes of LEOFF. The evidence established that Locke was "serving in a position

which requires passing a civil service examination for fire fighter," within the meaning

of RCW 41.26.030(4)(a). Even under the WAC definition of fire fighter, Locke had

the "legal authority" to perform fire protection activities, even if those activities were

done in relation to training. As amicus curiae International Association of Fire

Fighters notes, fire fighters often undergo regular training exercises throughout their

career and are fire fighters during their training periods. As the Court of Appeals in

this case observed, "the city's proposed narrow definition of 'fire fighter' . . .

discounts the value placed by the legislature upon those who undertake the risks

involved in fire fighter training." Locke, 133 Wn. App. at 712. Accordingly, we

affirm on this issue.

D. Did the trial court err in instructing the jury on "excess damages?"

A fire fighter or police officer may sue his employer under LEOFF only "for

any excess of damages over the amount received or receivable" through workers'

compensation. RCW 41.26.281; accord Fray, 134 Wn.2d at 648-49. The City argues

the LEOFF plaintiffs bear the burden of establishing "the amount received or

receivable" via workers' compensation and that the trial court erred in instructing the

jury that the City had to establish the amount received or receivable. However, the

parties in the instant case stipulated to the amount of workers' compensation benefits

Locke received. Thus, any error in the jury instruction was harmless.

E. Does the evidence support the jury's future economic damages award?

The City contends that the evidence produced during Locke's trial does not

support the jury's future economic damages award of $514,000. The City brought a

CR 59 motion for new trial or for a remittitur, arguing in part that Locke did not meet

his burden of establishing the future economic damages award and that the damages

award resulted from prejudice or passion. CR 59(a)(5). The trial court denied the

City's motion and the Court of Appeals affirmed.

We review the denial of a new trial or remittitur for abuse of discretion. Bunch

v. King County Dep't of Youth Servs., 155 Wn.2d 165, 175-76, 116 P.3d 381 (2005)

(discussing standard of review for remittitur); Aluminum Co. of Am. v. Aetna Cas. &

Sur. Co., 140 Wn.2d 517, 537-38, 998 P.2d 856 ( 2000) (discussing standard of review

for CR 59 motion). A court abuses its discretion when the jury award is contrary to

the evidence. To determine whether evidence supports the jury's damages award, we

must examine the record. Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597

(1997). However, "courts are reluctant to interfere with a jury's damage award when

fairly made." Id. ("Determination of the amount of damages is within the province of

the jury."). If we determine that the evidence does not support the jury's award, we

may reduce the award. Bunch, 155 Wn.2d at 175-76.

The evidence at trial revealed that Locke's fall resulted in permanent injuries.

Verbatim Report of Proceedings (VRP) (June 7, 2004, 1:30 p.m.) at 43. As a result of

these permanent injuries, Locke received physical therapy, massage, and rolfing

treatments for his ongoing and increasing pain. VRP (June 23, 2004) at 192-94, 202-

03. The physical therapist testified that her physical therapy visits cost $160 per visit.

VRP (June 7, 2004, 1:30 p.m.) at 50-51. The evidence further revealed that Locke

spent more than $10,000 for such treatment in the two years preceding the trial. Id. at

100. The court instructed the jury that Locke's life expectancy was an additional

32.43 years. CP at 4079.

Locke's physical therapist testified that it may take four to six months before

Locke reached the maximum benefit from physical therapy, but also testified that his

injuries were permanent. Locke testified that he needed massage and rolfing

treatments in addition to physical therapy to manage his increasing pain. VRP

(June 23, 2004) at 192-94, 202-03. Experts also testified that Locke may one day need

future treatment such as subtalar fusion. VRP (July 1, 2004) at 27. The City further

acknowledged that Locke was entitled to $49,000 in lost future business. Br. of

Appellants at 43.

Based on the evidence presented at trial, the jury could have concluded that

Locke's permanent injuries would require continued treatment for his life expectancy

to manage the permanent injuries and increasing pain. We therefore hold that the trial

court did not abuse its discretion in denying the City's motion for a new trial or

remittitur.

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