Shafer v. State ( 1974 )

Hamilton, J.

Plaintiff appeals from an order dismissing her complaint, sounding in tort, against the State of Washington. Dismissal was predicated upon plaintiff’s failure to file a claim with the state auditor within 120 days from the' date of her injury pursuant to RCW 4.92.100.

The relevant facts as alleged are these: On March 29, 1968, the plaintiff, Mrs. Faye V. Shafer, entered a Washington State liquor store in Seattle intending to make a purchase. As she entered the store through the customers’ entrance she tripped on a wrinkled rug mat inside the entrance door, fell to the floor and incurred serious injury necessitating some 13 months of medical care.

One or two days later, plaintiff’s husband contacted employees at the store about her injuries. He was provided with the name and telephone number of the Washington State Liquor Control Board District Store Supervisor, Mr. Charles Starwick. Upon telephoning Mr. Starwick and informing him of the circumstances of his wife’s fall and injuries, Mr. Shafer was referred to another official who in turn advised him to discuss the matter with the assistant attorney general assigned as legal counsel to the Washington State Liquor Control Board in Olympia.

On May 13, 1968, Mrs. Shafer telephoned the designated assistant attorney general in Olympia, identified herself, and related the circumstances of her injury. The attorney acknowledged awareness of her situation and indicated that he in fact had a file on the case. Mrs. Shafer then advised the attorney that “hip-pinning” surgery had been performed immediately following her injury, that the pins had pulled loose, and that bone graft surgery was now required. She expressed concern as to whether there was sufficient insurance remaining to pay for additional surgery and requested that a representative of the state be dispatched to see about making a partial settlement to help defray the medical expenses. The attorney replied: “No, we can’t do it that way — you will have to wait until all medical expenses are incurred, and your doctor has dismissed you, then you should submit a claim through your attorney.” Thereafter, Mrs. Shafer telephoned her attorney and informed him of her conversation with the assistant attorney general.

Approximately 4 months later, plaintiff’s attorney once again contacted Mr. Starwick, who recalled the store manager’s report of Mrs. Shafer’s accident. Mr. Starwick likewise remembered Mr. Shafer’s telephonic communication of the circumstances. He also indicated that the store manager had made an investigation of the accident, including interviewing and recording statements of store employees who witnessed the incident, and taking photographs of the entrance of the store and of the rug over which plaintiff tripped. Mr. Starwick further stated that he had made a written report and had submitted it along with the photographs and written statements to legal counsel for the Liquor Control Board. Although Mr. Starwick initially indir cated he would make a copy of his report available to Mrs. Shafer’s attorney, 2 days later he informed her attorney that all files concerning the incident were in the possession of the Liquor Control Board’s legal counsel in Olympia. A claim was then filed on behalf of Mrs. Shafer, pursuant to RCW 4.92.100, on October 14, 1968, 199 days after the occurrence in suit.

Although the trial judge granted the state’s motion to dismiss Mrs. Shafer’s action for failure to timely file a claim, he specifically noted in the order, by way of “findings,”¹ that the state, through its agents, had completely investigated the accident in suit within 45 days of its occurrence. He also observed that the state had knowledge of all the facts it would have been able to obtain concerning the accident had a claim been filed within the 120-day requirement of RCW 4.92.100. The trial judge further concluded that the state was not prejudiced by the late filing of the claim.

On appeal, plaintiff first contends the claim filing requirements of RCW 4.92.100² and .110³ violate due process and equal protection concepts enunciated in the fourteenth amendment to the United States Constitution and in Const. art. 1, §§ 3 and 12 of the state constitution. For the reasons stated in Cook v. State, 83 Wn.2d 599, 521 P.2d 725 (1974), we decline to so hold.

Plaintiff next asserts that, under the facts of this case as they presently stand, the state should be equitably es-topped from asserting an untimely filing under RCW 4.92.100.

We agree that the doctrine of equitable estoppel should apply if the facts as presented be true.

We have recognized on several occasions that the doctrine of equitable estoppel will be applied against the state or against a political subdivision when acting in its governmental as well as proprietary capacity when necessary to prevent a manifest injustice, and the exercise of governmental powers will not thereby be impaired. Finch v. Matthews, 74 Wn.2d 161, 443 P.2d 833 (1968); Edwards v. Renton, 67 Wn.2d 598, 409 P.2d 153, 33 A.L.R.3d 1154 (1965); State ex rel. Shannon v. Sponburgh, 66 Wn.2d 135; 401 P.2d 635 (1965); Strand v. State, 16 Wn.2d 107, 132 P.2d 1011 (1943); Bennett v. Grays Harbor County, 15 Wn.2d 331, 130 P.2d 1041 (1942); Abrams v. Seattle, 173 Wash. 495, 23 P.2d 869 (1933); State ex rel. Washington Paving Co. v. Clausen, 90 Wash. 450, 156 P. 554 (1916). With regard to the applicability of this doctrine in connection with our statutory scheme of waiver of sovereign immunity in tort actions, we observed in Finch v. Matthews, supra at 176, that:

Governmental immunity from estoppel is a derivative of the doctrine conferring the sovereign entity with immunity from suit without its consent. 28 Am. Jur. 2d Estoppel and Waiver § 123 (1966); Annot. 1 A.L.R. 2d 338, 340 (1949); Hickey v. Illinois Central R.R., 35 Ill. 2d 427, 220 N.E.2d 415 (1966). The legislature of this state has indicated that sovereign immunity in tort actions is no longer desirable or acceptable. RCW 4.92.090. The modern trend in both legislative and judicial thinking is toward the concept that the citizen has a right to expect the same standard of honesty, justice and fair dealing in his contact with the state or other political entity, which he is legally accorded in his dealing with other individuals. Therefore, the rule against estopping a governmental body should not be used as a device by a municipality to obtain unjust enrichment or dishonest gains at the expense of a citizen. [Citations omitted.]

Where our legislature has determined that the state “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, we no longer feel it appropriate to withhold under proper circumstances, application of the doctrine of equitable estoppel in relation to the claim provisions of RCW 4.92.100 and .110. Our holding to the contrary in Forseth v. Tacoma, 27 Wn.2d 284, 178 P.2d 357 (1947), is no longer viable and is hereby overruled. Having concluded that the doctrine of equitable estoppel can be applied against the state in the context here involved, we must next determine whether all the elements which would allow a finding of equitable estoppel in favor of plaintiff exist, assuming the facts as alleged be true.

The requisites of an equitable estoppel are: (1) an admission, statement, or act, inconsistent with the claim afterwards asserted; (2) action by the other party on the faith of such admission, statement, or act; and (3) injury to such other party arising from permitting the first party to contradict or repudiate such admission, statement, or act. Bignold v. King County, 65 Wn.2d 817, 399 P.2d 611 (1965); Moore v. Dark, 52 Wn.2d 555, 327 P.2d 429 (1958); Nelson v. Bailey, 54 Wn.2d 161, 338 P.2d 757, 73 A.L.R.2d 1400 (1959); Code v. London, 27 Wn.2d 279, 178 P.2d 293 (1947).

Upon the allegations as they stand, it would appear that sufficient factual elements are present to fulfill the enunciated requisites. Employees of the state on the scene of the accident became immediately aware of the incident, and communicated their awareness by subsequent written reports, statements and photographs to their superiors who, in turn, forwarded the information to the state’s legal representative, an assistant attorney general. Mr. and Mrs. Shafer likewise contacted representatives of the state and further alerted them to the circumstances of the incident and to the fact that recompense was expected. And, when Mrs. Shafer contacted the assistant attorney general 45 days after the accident concerning the prospects of a partial settlement, she was, in essence, advised that: (1) the assistant attorney general was aware of the facts and circumstances surrounding her claim; (2) the filing of a claim was not immediately necessary; and (3) a claim should not be filed until all of her medical expenses had been incurred. This information was then communicated by Mrs. Shafer to her attorney⁴ who apparently relied upon it. While we recognize that Mrs. Shafer’s attorney should have been more cautious with respect to the advice purportedly communicated from the assistant attorney general through Mrs. Shafer, we do not deem this fact, standing alone, should descend as an unyielding bar to plaintiff’s claim.

We noted in State ex rel. Shannon v. Sponburgh, 66 Wn.2d 135, 143-44, 401 P.2d 635 (1965), that:

The conduct of government should always be scrupulously just in dealing with its citizens; and where a public official, acting within his authority and with knowledge of the pertinent facts, has made a commitment and the party to whom it was made has acted to his detriment in reliance on that commitment, the official should not be permitted to revoke that commitment.

Here, if the facts be as alleged, it is reasonable to conclude that Mrs. Shafer was led to believe by agents and a legal representative of the state that her claim was known to the state and would be recognized when all of her medical expenses were incurred. Her own attorney did not advise her to the contrary. She was entitled to rely upon statements made to her by responsible state officials,-acting within the scope of their authority, which she did to her detriment.

The order of dismissal is vacated and the cause is remanded for further proceedings consistent with this opinion.

Rosellini, Hunter, and Brachtenbach, JJ., concur.

1 Although the trial judge’s “findings” were superfluous in the order of dismissal, they appear to be reasonable conclusions based upon the affidavits then before the trial judge, which he was required, as are we, to accept as true.

2 “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).

3 “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).

4 Since deceased.