Dep't of Transp. v. Mullen Trucking 2005, Ltd.

This opinion'was
■yFPEIEv
IN CLERKS OFFICE \
filed for record
at da.jn.Qn ^
AffREME coum; SIME OF WASHmOTOM
I ^ DATE OCT 3 1 7 Susan L. Carlson
Supreme Court Clerk
^ -rCUA K-xvlH-
GMieFjusrice
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
WASHINGTON STATE
DEPARTMENT OF No. 96538-2
TRANSPORTATION,
Respondents,
DANIEL A. SLIGHand
SALLETTEE R. SLIGH,
individually and the marital
community composed thereof;
BRYCE KENNING, a single person.
Plaintiffs,
En Banc
MULLEN TRUCKING 2005, LTD.,
a Canadian corporation or business
entity d/b/a MULLEN TRUCKING
LP; WILLIAM SCOTT and JANE
DOE SCOTT, individually and the
marital community composed
thereof,
Petitioners.
and
Filed 3 1
SAXON ENERGY SERVICES,
Washington Department ofTransportation v. Mullen Trucking 2005, LTD. et ah. No. 96538-2
INC., TAMMY J. DETRAY and
GREGORY DETRAY,individually
and the marital community
composed thereof; G&T
CRAWLERS SERVICE,a
Washington business entity.
Defendants.
MULLEN TRUCKING 2005, LTD.,
a Canadian corporation or business
entity d/b/a MULLEN TRUCKING
LP; WILLIAM SCOTT and JANE
DOE SCOTT,individually and the
marital community composed
thereof.
Petitioners,
V.
STATE OF WASHINGTON,
Respondent,
PATTY AUVIL d/b/a OLYMPIC
PENINSULA PILOT SERVICE and
JOHN DOE AUVIL,individually
and the marital community
composed thereof; AMANDEEP
SIDHU and JANE DOE SIDHU,
individually and the marital
community composed thereof.
Defendants,
and
MOTORWAYS TRANSPORT,LTD,
2
Washington Department ofTransportation v. Mullen Trucking 2005, LTD. etal., No. 96538-2
a Canadian corporation, )
)
Petitioner. )
)
Gonzalez, J—This case involves the interplay of our 1986 comparative
fault statute, RCW 4.22.070, with two provisions of the 1937 motor vehicle act,
ROW 46.44.020 and RCW 46.44.110. RCW 46.44.020 governs maximum vehicle
heights and .110 imposes broad liability on those who cause damage to bridges and
elevated structures while driving. We are asked to decide whether fault may be
allocated to the State under our comparative fault statute when our maximum
height statute states that "no liability may attach" to the State under these
circumstances. We find no fault may be allocated to the State and affirm.
Facts
On May 23, 2013, a clear and sunny day, William Scott, a driver for Mullen
Trucking 2005 Ltd., was transporting a 15-foot 11-inch oversize load on Interstate
5 from Canada to Vancouver, Washington.' Along the route was the Skagit River
Bridge. The bridge varied in vertical clearance from 17 feet 3 inches in the center
to 14 feet 5 inches at the edge.
'Mullen Trucking measured the load at 15 feet 9 inches and obtained a permit from the
Washington State Department of Transportation(WSDOT)for a 15-foot 9-inch load. However,
following the accident, the Washington State Patrol measured the load at 15 feet 11 inches, two
inches above permit allowance. Further, the permit obtained from WSDOT contained a written
warning, stating "ROUTE DOES NOT GUARANTEE HEIGHT CLEARANCES." Clerk's
Papers at 342.
Washington Department of Transportation v. Midlen Trucking 2005, LTD. et a/., No. 96538-2
Scott's truck had a pilot vehicle, a 1997 Dodge Ram pickup truck driven by
Tammy Detray. A pilot vehicle works in conjunction with the driver of an
oversize load to guide it safely to its destination. As they entered and crossed the
bridge in the right lane, Detray was distracted, talking to her husband on a hands-
free cell phone device. Affixed to the right front of Detray's pickup was a 16-foot
2-inch tall clearance pole. In a written statement, Detray stated she did not strike
the bridge with the pole. This was contradicted by at least one witness. Dale
Ogden, who saw Detray's clearance pole hit the bridge four or five times. Detray
was only 4.12 seconds and between 332 and 363 feet ahead of Scott; according to
experts, even if Detray had alerted Scott to a clearance issue, Scott was too close to
alter his path. Detray later admitted in her deposition that she should not have
been in the right lane.
As Scott neared the bridge, he noticed a truck behind him quickly
approaching. About a half mile before they entered the bridge, the approaching
truck, which was owned by codefendant Motorways Transport Ltd. and driven by
Amandeep Sidhu, was "virtually beside" Scott on his left. Clerk's Papers(CP) at
207. As they entered the bridge, Sidhu's truck was halfway beside Scott's truck,
confining Scott to the right side of the bridge.
Scott's oversize load struck the lower right curvature portion of 11 sway
braces. Next there was a giant bang, and "everything got violent." Id. at 210.
Washington Department of Transportation v. Mullen Trucking 2005, LTD. et o/., No. 96538-2
Scott held on and slammed on the brake pedal. There was another bang, objects
were thrown through the air, and everything shook. Scott coasted to the end of the
bridge. He understood what happened only when he looked back and "realized the
bridge was in the water." Id. at 212. Sidhu did not stop and later said he did not
know what had occurred.
By striking the trusses, Scott caused the north bridge section to collapse into
the river. The Major Accident Investigation Team of the Washington State Patrol
and the National Transportation Safety Board investigated the accident. Even
though the load was two inches over the permit limit, it would have cleared the
bridge if the truck had been in the left lane. The investigation team determined the
proximate cause ofthis collision sequence was directly attributable to Scott's
negligence. While the Skagit River Bridge was out of commission, traffic on 1-5
was severely affected, and several detour routes were used until a temporary bridge
was installed on June 18, 2013.
The State sued Mullen Trucking and Motorways Transport for negligence.
The trucking companies counterclaimed, claiming the State was also negligent.
The trucking companies have since conceded that the State cannot be held liable,
but they seek to allocate fault to the State under our comparative fault statute to
offset any damage award that may be entered against them.
«L
Washington Department ofTransportation v. Mullen Trucking 2005, LTD. et al, No. 96538-2
The trucking companies base their negligence claims on numerous grounds.
Among them, the State's duty to maintain roads and bridges; the fact that the State
issued a permit for a load size that did not fit on its bridges; the fact that the bridge
had been deemed "functionally obsolete" and a "Fracture Critical Bridge," CP at
329, 330; and the fact that the bridge had been struck nine times before.
The State moved for partial summary judgment, asserting that under RCW
46.44.020, no portion of the damages could be allocated to it. The trucking
companies opposed the summary judgment motion, claiming that the State is not
immune from purely defensive counterclaims and that RCW 46.44.020, the
maximum height statute, is not a strict liability statute. The trial court granted the
State's motion.
The trucking companies successfully moved for interlocutory review. The
Court of Appeals affirmed the trial court. The Court of Appeals found a conflict
between chapter 46.44 RCW and RCW 4.22.070, concluded chapter 46.44 RCW
was more specific, and applied it. Dep't. ofTransp. v. Mullen Trucking 2005, Ltd.,
5 Wn. App. 2d 787, 797-98, 428 P.3d 401 (2018). The Court of Appeals held the
maximum height statute limited the State's actionable duty in tort, thereby
precluding any allocation of fault. Id. at 797-98 (citing Smelser v. Paul, 188
Wn.2d 648, 653-54, 398 P.3d 1086 (2017)).
Washington Department ofTransportation v. Mullen Trucking 2005, LTD. et al, No. 96538-2
We granted the trucking companies' petitions for review. 192 Wn.2d 1022(2019)
Analysis
This case presents questions of statutory interpretation. Our review is de
novo. Williams v. Tilaye, 174 Wn.2d 57, 61, 272 P.3d 235 (2012)(citing State v.
Wentz, 149 Wn.2d 342, 346,68 P.3d 282(2003)). Our role in interpreting statutes
is "to discern and implement the legislature's intent." Id. (citing State v. J.P., 149
Wn.2d 444,450,69 P.3d 318 (2003)). The plain meaning ofthe statutes may be
discerned "from all that the Legislature has said in the statute and related statutes
which disclose legislative intent about the provision[s] in question." Dep't of
Ecology V. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4(2002).
Our constitution gives the legislature considerable power to determine if and
when the State may be sued. "The legislature shall direct by law, in what manner,
and in what courts, suits may be brought against the state." Const, art. II, § 26.
For many years the legislature did not consent to suit, maintaining common law
sovereign immunity from suit for tortious conduct. See Debra L. Stephens &
Bryan P. Hametiaux, The Value ofGovernment Tort Liability: Washington State's
Journeyfrom Immunity to Accountability, 30 SEATTLE U.L. Rev. 35, 37(2006).
The State waived its immunity in 1961. Laws of 1961, ch. 136, § 1, codified as
Washington Department ofTransportation v. Mullen Trucking 2005, LTD. et al. No. 96538-2
RCW 4.92.090.^ The State's waiver of immunity "operates to make the State
presumptively liable in all instances in which the Legislature has not indicated
otherwise." Savage v. State, 127 Wn.2d 434, 445, 899 P.2d 1270 (1995).
Here, the legislature has indicated otherwise. Under RCW 46.44.020,"[n]o
liability may attach to the state" under these circumstances. We must decide the
effect ofthis earlier, more specific statute, if any, on the general rule that damages
must be allocated among most entities. See RCW 4.22.070.
The maximum height statute states, in pertinent part:
[7/]o liability may attach to the state or to any county, city, town, or other
political subdivision by reason of any damage or injury to persons or
property by reason of the existence of any structure over or across any public
highway where the vertical clearance above the roadway is fourteen feet or
more.
RCW 46.44.020 (emphasis added). Chapter 46.44 RCW also provides that
[a]ny person operating any vehicle is liable for any damage to any public
highway, bridge, elevated structure, or other state property sustained as the
result of any negligent operation thereof. . . . Such damage to any state
highway, structure, or other state property may be recovered in a civil action
instituted in the name of the state of Washington
RCW 46.44.110.
Our comparative fault statute states, in pertinent part:
In all actions involving fault of more than one entity, the trier offact shall
determine the percentage of the total fault which is attributable to every
^ "The state of Washington, 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.
8
Washington Department ofTransportation v. Mullen Trucking 2005, LTD. et al. No. 96538-2
entity . . . .The entities whose fault shall be determined include the claimant
or person suffering personal injury or incumng property damage,
defendants, third-party defendants, entities released by the claimant, entities
with any other individual defense against the claimant, and entities immune
from liability to the claimant, but shall not include those entities immune
from liability to the claimant under Title 51 RCW.
RCW 4.22.070(1)(emphasis added).
Our comparative fault statute explicitly requires the trier of fact to determine
the fault of every entity that caused the claimant's damages, including the claimant
and entities immune from liability to the claimant, with one exception not relevant
here. RCW 4.22.070. We must decide if this can be harmonized with RCW
46.44.020 and .110, which were enacted before, and reenacted after, the
legislature's waiver of sovereign immunity.^
The trucking companies argue that RCW 46.44.020 and .110 are immunity
statutes, and therefore easily fit within RCW 4.22.070 because fault can be
allocated to immune parties. Accordingly, they reason, they must be allowed to
attribute fault to the State as an immune party. The difficulty with this position is
that RCW 46.44.020 does not speak in terms of immunity; it speaks specifically in
terms of attaching liability. In 1937, while the government had sovereign
immunity, it maintained a common law duty to maintain roads and streets in a safe
^ The maxirnum height statute was enacted in 1937. Laws of 1937, ch. 189, § 48. Since the
legislature waived sovereign immunity in 1961, the maximum height statute has been amended
five times and the "no liability may attach" language remains. The statute has not been amended
since the enactment of our comparative fault statute in 1986.
Wasljington Department ofTransportation v. Mullen Trucking 2005, LTD. et a/., No. 96538-2
condition for ordinary travel. See, e.g., Teater v. City ofSeattle, 10 Wash. 327, 38
P. 1006 (1894). Under then-existing tort law, the defendants would have been
allowed to allocate fault to the State—very much like the attribution of fault
requirement under RCW 4.22.070—which would have served as a complete bar to
recovery. This is precisely what RCW 46.44.020 was designed to prohibit. While
a complete bar to recovery is no longer the rule, RCW 46.44.020 has been
amended five times since the legislature waived sovereign immunity in 1961, and
the "no liability may attach" language, along with the negligent motorist being
liable for "all damages" language in RCW 46.44.110, remains.
We agree with the State and the Court of Appeals that "the motor vehicle
statute is not a grant of'immunity,' but instead sets out the scope of the State's tort
duty to the traveling public." Mullen, 5 Wn. App. 2d at 798-99.'^ The statutory
language evinces an intent to protect our transportation infrastructure by holding
motorists totally liable for damage when they negligently cause an over-height load
to strike an overhead structure "where the vertical clearance above the roadway is
Motorways Transport argues that even if"fault cannot be allocated as to Mullen under RCW
46.44.020, the statute does not prevent the State's fault from being allocated for" Motorways
Transport because the statute protects the State only from liability against the colliding vehicle.
Suppl. Br. of Motorways Transport at 15-17. While the statute describes what type of vehicles
would be illegally operating on the roads, i.e., those exceeding 14 feet in height, the statute does
not limit "no liability may attach" to any such colliding vehicles. RCW 46.44.020. Read in
conjunction with RCW 46.44.110, specifically the "any person operating any vehicle is liable"
language. Motorways Transport's argument fails.
10
Washington Department ofTransportation v. Mullen Trucking 2005, LTD. et al, No. 96538-2
fourteen feet or more." RCW 46.44.020. Here, due to the alleged negligence of
both trucking companies, an over-height load struck sway braces on an over-14-
foot bridge. Because the State has no actionable tort duty in these specific
circumstances, there can be no fault to apportion, and the statutes therefore do not
conflict.^ This result is not in contravention of our state's statutory comparative
fault system because the "legislature shall direct by law, in what manner, and in
what courts, suits may be brought against the state." CONST, art. II, § 26.
Although we agree with the State's conclusion, we must discuss Smelser. In
Smelser, we dealt with a deeply rooted common law doctrine, known as the
parental immunity doctrine, and found that it operated to prevent allocation of fault
under RCW 4.22.070. We stressed that "immunity" is not, in most instances, the
lack of a tort duty. We concluded, however, that the "parental immunity doctrine"
was not immunity but, rather, a lack of an actionable tort duty. Smelser, 188
Wn.2d at 653-54. We analogized the parental immunity doctrine to other
^ Even if the statutes conflicted, the maximum height statute would govern as the more specific
statute, and our conclusion would be the same. See Univ. of Wash. v. City ofSeattle, 188 Wn.2d
823, 833, 399 P.3d 519(2017)("[B]efore applying the general-specific rule, we must identify a
conflict between the relevant statutes that cannot be resolved or harmonized by reading the plain
statutory language in context." (citing Residents Opposed to Kittitas Turbines v. State Energy
Facility Site Evaluation Council, 165 Wn.2d 275, 309-10, 197 P.3d 1153 (2008))); see also In re
Estate ofKerr, 134 Wn.2d 328, 343, 949 P.2d 810(1998)("A more specific statute supersedes a
general statute only if the two statutes pertain to the same subject matter and conflict to the
extent they cannot be harmonized.").
11
Washington Department ofTransportation v. Mullen Trucking 2005, LTD. et ah. No. 96538-2
discretionary immunities, such as the government discretionary functions
exception and the business judgment rule, and held that "just as it is not a tort for
government to govern, it is not a tort for parents to parent." Id. at 657. We held
that bad parenting should not "be subject to 'judicial second-guessing ... through
the medium of a tort action.'" Id. (alteration in original)(quoting Zellmer v.
Zellmer, 164 Wn.2d 147, 160, 188 P.3d 497 (2008)). The "judicial second-
guessing" that our courts have sought to avoid under the abovementioned
discretionary doctrines is not implicated here. However, the legal proposition of
Smelser, that there must be an actionable duty in tort before fault allocation is
allowed, is. See also Cummins v. Lewis County, 156 Wn.2d 844, 852, 133 P.3d
458(2006)("A threshold negligence determination is whether a duty of care is
owed to the plaintiff." (citing Babcock v. Mason County Fire Dist. No. 6., 144
Wn.2d 11A, 30 P,3d 1261 (2001)(plurality opinion))).
We emphasize that our holding does not affect the government's common
law duties. See, e.g., Keller v. City ofSpokane, 146 Wn.2d 237,44 P.3d 845(2002). Our holding has no bearing outside ofthe limited and specific
circumstances here: a clear legislative determination to not allow allocation offault
to the State or its political subdivisions when a negligent motorist causes an over-
height load to strike an overhead structure "where the vertical clearance above the
roadway is fourteen feet or more." RCW 46.44.020.
12
Washington Department ofTransportation v. Mitllen Trucking 2005, LTD. et al, No. 96538-2
Conclusion
Under these specific circumstances, the State owed no further actionable
duty in tort, therefore our comparative fault statute does not apply and fault cannot
be allocated. We affirm the Court of Appeals.
13
Washington Department of Transportation v. Mullen Trucking 2005, LTD., et al.^ No. 96538-2
7
WE CONCUR:
state of WA, Dep't of Transp. \/. Mullen Trucking 2005, LTD et al. and
Mullen Trucking 2005, LTD et al. v. State of WA, Dep't of Transp. et al.
Wiggins, J. (dissenting)
No. 96538-2
WIGGINS, J. (dissenting)—At issue in this case is whether the State may be
apportioned fault under RCW 4.22.070 even though "no liability may attach" to the
State under RCW 46.44.020. This is a simple question of statutory interpretation,
instead of engaging with the plain language of the statutes first, as our case law
mandates, the majority takes a circuitous route around it in order to avoid the result of
that analysis—while RCW 46.44.020 provides that "no liability may attach" to the
State, RCW 4.22.070 allows for the allocation of fault to "every entity," including those
"immune from liability." Because the majority ignores this simple and straightforward
reading of the text, I respectfully dissent.
ANALYSIS
I. The plain language of RCW 46.44.020 and RCW 4.22.070 is cohesive and
unambiguously requires allocation of fault to the State
For questions of statutory interpretation, we look first to the text as an
expression of legislative intent. Dep't of Ecology v. Campbell & Gwinn, LLC, 146
Wn.2d 1, 9-10, 43 P.3d 4 (2002). If a statute's meaning is plain on its face, we give
effect to that plain meaning and do not resort to tools of construction or legislative
history. Id.] see also State v. Costich, A52 Wn.2d 463, 470, 98 P.3d 795 (2004) ("If
state of WA, Dep't of Transp. v. Mullen Trucking 2005, LTD et al. and
Mullen Trucking 2005, LTD et al. v. State of WA, Dep't of Transp. et al.
Wiggins, J. (dissenting)
the language is unambiguous, we give effect to that language and that language alone
because we presume the legislature says what it means and means what it says.").
When interpreting the plain language of related statutes, we construe them "in relation
to each other . . . and should [read them] as complementary and not as conflicting."
Frayv. Spokane County, 134 Wn.2d 637,649, 952 P.2d 601 (1998); see also Hallauer
V. Spectrum Props., Inc., 143 Wn.2d 126, 146, 18 P.3d 540 (2001)(statutes should
be interpreted to create a harmonious scheme).
The crux of this case is the meaning and operation of RCW 4.22.070, which
was adopted by our legislature as part of the tort reform act of 1986. Laws of 1986
ch. 305. The full text of RCW 4.22.070(1) is set forth in footnote 1 The first sentence
1 RCW 4.22.070(1) reads:
In all actions involving fault of more than one entity, the trier of fact shall determine
the percentage of the total fault which is attributable to every entity which caused
the claimant's damages except entitles immune from liability to the claimant under
Title 51 RCW. The sum of the percentages of the total fault attributed to at-fault
entities shall equal one hundred percent. The entities whose fault shall be
determined Include the claimant or person suffering personal Injury or incurring
property damage, defendants, third party defendants, entities released by the
claimant, entities with any other individual defense against the claimant, and
entities immune from liability to the claimant, but shall not include those entitles
immune from liability to the claimant under Title 51 RCW. Judgment shall be
entered against each defendant except those who have been released by the
claimant or are immune from liability to the claimant or have prevailed on any other
individual defense against the claimant in an amount which represents that party's
proportionate share of the claimant's total damages. The liability of each defendant
shall be several only and shall not be joint except:
(a) A party shall be responsible for the fault of another person or for
payment of the proportionate share of another party where both were acting in
concert or when a person was acting as an agent or servant of the party.
(b) If the trier of fact determines that the claimant or party suffering bodily
injury or Incurring property damages was not at fault, the defendants against whom
state of WA, Dep't of Transp. v. Mullen Trucking 2005, LTD et al. and
Mullen Trucking 2005, LTD et al. v. State of WA, Dep't of Transp. et al.
Wiggins, J.(dissenting)
reads, "In all actions involving fault of more than one entity, the trier of fact shall
determine the percentage of the total fault which is attributable to every entity which
caused the ciaimant's damages except entities immune from liability to the claimant
under Title 51 RCW."(Emphasis added.)
The tort reform act was passed "in order to create a more equitable distribution
of the cost and risk of injury." Laws of 1986, ch. 305, § ICQ (preamble to tort reform
act). RCW 4.22.070(1) was part of this change. It currently provides that the trier of
fact must allocate "the percentage of the total fault which is attributable to every entity
which caused the claimant's damages except entities immune from liability to the
claimant under Title 51 RCW."
Based on the findings of the trier of fact, RCW 4.22.070(1) directs the court to
enter judgment "against each defendant except those who have been released by the
claimant or are immune from liability to the claimant or have prevailed on any other
individual defense against the claimant in an amount which represents that party's
proportionate share of the claimant's total damages." Finally, RCW 4.22.070(1)(b)
provides that the claimant's judgment against any at-fault defendants would be based
on joint and several liability if the claimant was fault-free. Otherwise, the claimant's
judgment is based on a proportionate share of damages. RCW 4.22.070(1).
judgment is entered shall be jointly and severally liable for the sum of their
proportionate shares of the claimant[']s ... total damages.
(Alteration in original)(emphasis added).
state of WA, Dep't of Transp. v. Mullen Trucking 2005, LTD et al. and
Mullen Trucking 2005, LTD et al. v. State of WA, Dep't of Transp. et al.
Wiggins, J. (dissenting)
In light of this background, I now move to how RCW 4.22.070 interacts with
RCW 46.44.020, which, among other things, prohibits liability from attaching to the
State in cases such as this one. RCW 46.44.020 provides:
[N]o liability may attach to the state or to any county, city, town, or other
political subdivision by reason of any damage or Injury to persons or
property by reason of the existence of any structure over or across any
public highway where the vertical clearance above the roadway is
fourteen feet or more.
(Emphasis added.)
The plain language of RCW 4.22.070 and RCW 46.44.020 does not conflict.
Indeed, their texts fit together seamlessly. RCW 4.22.070(1) requires that "the trier of
fact shall determine the percentage of the total fault which is attributable to every entity
which caused the claimant's damages" (subject to the Title 51 RCW exception).
Section RCW 46.44.020 prohibits actions that would cause liability to "attach" to the
State and its subdivisions "where the vertical clearance above the roadway is fourteen
feet or more." These two statutes would be in conflict only if determining the
percentage of fault under section RCW 4.22.070 somehow caused liability, rather than
fault, to attach to the at-fault entity, overriding the prohibition on the State's liability in
RCW 46.44.020. In other words, if an attribution of fault to the State by RCW 4.22.070
automatically caused liability to attach to the State, despite RCW 46.44.020, then the
two statutes would indeed conflict. But by the plain language of RCW 4.22.070,
allocation of fault does r?of automatically cause liability to attach.
The plain language of the statutory scheme compels the conclusion that instead
of causing liability to attach to the State, RCW 46.44.020 and RCW 4.22.070 merely
state of WA, Dep't of Transp. v. Mullen Trucking 2005, LTD et al. and
Mullen Trucking 2005, LTD et al. v. State of WA, Dep't of Transp. et al.
Wiggins, J. (dissenting)
prevent liability from attaching to the State for claims based on the height of the bridge.
First, RCW 46.44.020 prevents liability from attaching to the State from claims arising
"by reason of the existence of any structure over or across any public highway where
the vertical clearance above the roadway is fourteen feet or more." Second, RCW
4.22.070 defines the parties against whom judgment may be entered, expressly
declaring that "[jjudgment shall be entered against each defendant except those who
. . . are immune from liability to the claimant." In other words, for claims for which the
State is immune to liability—such as claims arising from the height of the Interstate 5
bridge involved here— RCW 4.22.070 declares that judgment shall not be entered
against the State.
But that does not mean that no fault can be found in the State, as RCW
46.44.020 prevents the State from being held liable only when an over-height motor
vehicle strikes an overhead structure. It does not prevent the State from being
allocated fault. This is a direct result of the language of RCW 4.22.070, which requires
fault to be attributed to "every entity which caused the claimant's damages . . .
includ[ing] . . . entities immune from liability to the claimant." id. This is telling, as
'"[ejntity' is the broadest possible word of inclusion for conveying the statutory
mandate . . . . [It] appears to encompass all but inanimate objects or forces of nature;
things as to which the concept of 'fault' cannot have meaningful application." Gregory
C. Sisk, interpretation of the Statutory Modification of Joint and Several Liability:
Resisting the Deconstruction of Tort Reform, 16 U. Puget Sound L. Rev. 1, 44-45
(1992)(footnotes omitted); see also Price v. Kitsap Transit, 125 Wn.2d 456, 461, 886
state of WA, Dep't of Transp. v. Mullen Trucking 2005, LTD et al. and
Mullen Trucking 2005, LTD et al. v. State of WA, Dep't of Transp. et al.
Wiggins, J. (dissenting)
P.2d 556(1994)("Based on the express language of the tort reform act, we conclude
an 'entity', as that term is used in RCW 4.22.070(1), must be a juridical being capable
of fault."). That, combined with the fact that the legislature explicitly included entities
"immune from liability" among those entities to whom fault must be allocated, means
that to exempt the State from any allocation of fault would be in contravention of the
plain language of the statute. See RCW 4.22.070. Thus, RCW 4.22.070's allocation
of fault to "every entity which caused the claimant's damages" includes attributing fault
to parties immune from liability, as the State is here.
The purpose of RCW 4.22.070 supports this conclusion. As discussed above,
the purpose of the tort reform act, of which RCW 4.22.070 is a part, was to "create a
more equitable distribution of the cost and risk of Injury." Laws of 1986, ch. 305, §
100. In order to accomplish this fair distribution of damages, the trier of fact must
determine the fault of all responsible entities. Consequently, it is a foundational tenet
of the comparative fault scheme created by the tort reform act that every entity, even
those not included as parties to the legal action, is allocated fault. See Leonard E.
Eilbacher, Comparative Fault and the Nonparty Tortfeasor, 17 Ind. L. Rev. 903, 903
(1984)("To the extent that a given legal system ignores the fault of any tortfeasor, and
shifts the financial burden from one culpable person to another, the fundamental
principle of comparative fault is compromised."); see generally Sisk, supra.
There has been only one exemption to the allocation of fault under RCW
4.22.070: employers immunized by Title 51 RCW. The Title 51 RCW exemption was
passed as an amendment in 1993 to protect the State, which had a lien on third-party
state of WA, Dep't of Transp. v. Mullen Trucking 2005, LTD et al. and
Mullen Trucking 2005, LTD et al. v. State of WA, Dep't of Transp. et al.
Wiggins, J. (dissenting)
recoveries, from incurring significant losses to the industrial insurance fund. H.B.
1264, 53d Leg., Reg. Sess.(Wash. 1993). Therefore, where the legislature intended
to reduce the allocation of fault to the State, it did so explicitly through RCW 4.22.070.
That the legislature elected to exempt only entities immune under Title 51 RCW
indicates that it intended to continue allocating fault to all other immune parties,
including the State, under actions implicating RCW 46.44.020.
Reviewing courts cannot read an exemption into RCW 4.22.070 where none
has been included by the legislature. "Under expressio unius est exclusio alterius, a
canon of statutory construction, to express one thing in a statute implies the exclusion
of the other. Omissions are deemed to be exclusions." In re Del of Williams, 147
Wn.2d 476, 491, 55 P.3d 597 (2002)(citation omitted). That the legislature made no
exemption for any other entity evinces the legislature's intent to allocate fault, even
when that entity is the plaintiff State.
The plain language is clear. RCW 4.22.070 requires allocation of fault to all
parties, including those immune from liability (except as immunized under Title 51
RCW). RCW 46.44.020 immunizes the State from liability in cases such as the one
before us, but it says nothing about fault—nor about the duty that the majority focuses
on, as discussed below. Therefore, I would reverse the Court of Appeals, holding that
fault may be allocated to the State.
state- of WA, Dep't of Transp. v. Mullen Trucking 2005, LTD et al. and
Mullen Trucking 2005, LTD et al. v. State of WA, Dep't of Transp. et al.
Wiggins, J.(dissenting)
II. The majority's claim that RCW 46.44.020 does not immunize the State but,
rather, narrows the State's common law duty is unsupported and incorrect
In answering the question posed by this case, we need not go beyond the plain
language of the statutes. However, because the majority ignores the plain language
of RCW 46.44.020 and instead insists that RCW 46.44.020 limits the State's duty, I
address the majority's argument.
First, the majority cannot have derived this conclusion from the plain language
of the statute—although it attempts to do so. It argues that RCW 46.44.020 does not
grant immunity from liability but, instead, '"sets out the scope of the State's tort duty
to the traveling public.'" Majority at 8 (quoting Dep't of Transp. v. Mullen Trucking
2005, Ltd., 5 Wn. App. 2d 787, 798-99, 428 P.3d 401 (2018)). The majority apparently
bases this conclusion on the fact that RCW 46.44.020 does not expressly use the
term "immunity"; therefore, the State has no tort duty in this situation. Majority at 8.
But, as the plain language analysis above already indicates, this misinterprets the
statute. True, RCW 46.44.020 does not use the word immunity—but it does not relieve
the State of a duty of care either.^ Further, the exemption from liability created by
RCW 46.44.020 is clearly analogous to immunity, not lack of a duty of care. Immunity
is consistently characterized as an exemption from liability. See, e.g., Frost v. City of
^ There Is a reference to "duty" in RCW 46.44.020, but it has nothing to do with the State's lack of
duty of care—or any duty of care, for that matter. See RCW 46.44.020 ("If any structure over or
across any public highway is not owned by the state or by a county, city, town, or other political
subdivision, it is the duty of the owner thereof when billed therefor to reimburse the state
department of transportation or the county, city, town, or other political subdivision having
jurisdiction over the highway for the actual cost of erecting and maintaining the impaired clearance
signs, but no liability may attach to the owner by reason of any damage or injury to persons or
property caused by impaired vertical clearance above the roadway.").
8
Stat^ of WA, Dep't of Transp. v. Mullen Trucking 2005, LTD at al. and
Mullen Trucking 2005, LTD et al. v. State of WA, Dep't of Transp. et al.
Wiggins, J. (dissenting)
Walla Walla, 106 Wn.2d 669, 724 P.2d 1017 (1986)(statute providing only that "no
liability [may be] imposed" granted immunity); see also Black's Law Dictionary 898
(11th ed. 2019) (defining "immunity" as "[ajny exemption from a duty, liability, or
service of process" (emphasis added)). Indeed, the very statute that revoked the
State's sovereign immunity does not mention "immunity" at all—to the contrary, it
speaks exclusively in terms of imposing liability. RCW 4.92.090 ("The state of
Washington . . . shall be liable for damages arising out of its tortious conduct to the
same extent as if it were a private person or corporation."). Thus the plain language
of the statute does not support but counters the majority's conclusion.
Second, the majority's conclusion that RCW 46.44.020 limits the State's duty
unnecessarily abrogates the State's common law duty to maintain the reasonable
safety of its roadways and bridges. Under the majority's reasoning, as long as the
State has met the clearance and signage requirements of RCW 46.44.020, it owes no
additional duty to motorists and cannot be apportioned fault under RCW 4.22.070.
The majority relies on Smelserv. Paul, 188 Wn.2d 648, 398 P.3d 1086 (2017),
for the assertion that there must be a duty in order to find fault. Majority at 9-10. I do
not dispute this claim; in fact, I agree with it.^ However, the State does have a duty
^ I emphasize that Sme/ser should be distinguished on other grounds. In Smelser, we found no
actionable tort duty and, therefore, no possible allocation of fault. 188 Wn.2d at 657. But the
parental immunity at issue in Snnelser cannot be compared to the proprietary common law duty
at issue here. Parental immunity is akin to discretionary immunity in that it does not represent the
repeal of a duty but, rather, the acknowledgement that no such duty could ever exist. Id. at 656.
(citing Zellmer v. Zellmer, 164 Wn.2d 147, 188 P.3d 498 (2008)). In other words, it is "not a tort
for government to govern, [and] it is not a tort for parents to parent." Id. at 657. The proprietary
common law duty at issue here cannot be analogized to governmental or parental duties, which
have never existed in our jurisprudence.
state of WA, Dep't of Transp. v. Mullen Trucking 2005, LTD et al. and
Mullen Trucking 2005, LTD et al. v. State of WA, Dep't of Transp. et al.
Wiggins, J. (dissenting)
under which fault can be allocated—the State's common law duty to build and
maintain its roadways in a condition reasonably safe for ordinary travel. See, e.g.,
Keller V. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002)("a municipality
owes a duty to all persons, whether negligent or fault-free, to build and maintain its
roadways in a condition that is reasonably safe for ordinary travel"); Lucas v. Phillips,
34 Wn.2d 591, 597, 209 P.2d 279(1949)("having built, maintained, and operated [the
bridge],[the county] was bound to use such care as would keep it in a reasonably safe
condition for those who might go upon it"); Teafer v. City of Seattle, 10 Wash. 327,
328-29, 38 P. 1006 (1894) (city has a duty to maintain bridges in reasonably safe
condition). Nothing in RCW 46.44.020 abrogates this common law duty. See Potter v.
Wash. State Patrol, 165 Wn.2d 67, 77, 196 P.3d 691 (2008)(a statute abrogates the
common law only when there is a clear statement of legislative intent or where it is so
repugnant to the common law that the two cannot coexist). Rather, RCW 46.44.020
imposes the additional 6u{y of posting warning signs when the bridge is under 14 feet
tail.'' Lucas, 34 Wn.2d at 595-96 (the duty to post warning signs must be statutorily
imposed unless the situation is inherently dangerous).
'' The current version of RCW 46.44.020 was introduced as an amendment to the proposed
statute, which solely concerned the driver's duty without any mention of the State's duty. Laws
OF 1937, ch. 189, § 48.(The original statute read, "It shall be unlawful for any vehicle unladen or
with load to exceed a height of twelve (12) feet and six (6) inches above the level surface upon
which the vehicle stands. This section shall not apply to authorized emergency vehicles or repair
equipment of a public utility engaged in reasonable necessary operation."). This suggests that the
purpose of the original statute was to establish the driver's duty—not the State's.
10
StatQ of WA, Dep't of Transp. v. Mulleii Trucking 2005, LTD et al. and
Mullen Trucking 2005, LTD et al. v. State of WA, Dep't of Transp. et al.
Wiggins, J. (dissenting)
The majority claims that its interpretation does not abrogate the common law
duty but rather narrows it to the specific requirements of RCW 46.44.020. Majority at
10-11. However, if the State's only duty is to provide proper clearance and signage
under RCW 46.44.020, it necessarily no longer has a duty to maintain the reasonable
safety of its bridges in any other manner. Therefore, the majority abrogates the
common law without any legislative directive to do so. Further, the majority's
justification that the abrogation is cabined to a narrow set of circumstances is
irrelevant—the consequences of the abrogation would lead to untenable results.®
Because RCW 46.44.020 does not include a clear statement abrogating the
State's preexisting common law duty, the duty remains. Potter, 165 Wn.2d at 77.
Accordingly, the State may still be allocated fault under RCW 4.22.070 for failing to
maintain its roadways and bridges, regardless of whether it complied with its statutory
duties under RCW 46.44.020.
® The majority's reading is internally inconsistent. The State cannot have a duty only to comply
with RCW 46.44.020's signage and height requirements in the case of an overhead bridge strike
by an over-height vehicle while simultaneously retaining its general duty to maintain the
reasonable safety of its bridges for all other motorists. If the State negligently maintained a bridge
and a standard-height vehicle caused its collapse, the State would owe a duty. If, however, the
State negligently maintained the same bridge and an over-height vehicle caused it to collapse, it
would owe no duty. Under the majority's reading, the State could not be allocated fault even If
they constructed the bridge out of toothpicks, so long as it was an over-height vehicle that led to
its collapse and not a passenger vehicle. This would be true despite the fact that the State's
negligence poses a danger to all motorists on the road.
11
Stat^ of WA, Dep't of Transp. v. Mullen Trucking 2005, LTD et al. and
Mullen Trucking 2005, LTD et al. v. State of WA, Dep't of Transp. et al.
Wiggins, J. (dissenting)
CONCLUSION
We nnust presume that the legislature means exactly what it says. Where the
legislature has spoken plainly, its words do not require interpretive statutory
construction. See Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325, 329, 815 P.2d 781(1991). Therefore, ROW 46.44.020 and ROW 4.22.070 need no construction-
together they create a cohesive statutory scheme and are not in conflict with one
another. Once the State has met the statutory requirements of ROW 46.44.020, it may
not be subject to suit arising from an over-height bridge strike. It may, however, still
be allocated fault under ROW 4.22.070 for breach of its duty to maintain its roadways
and bridges.
The majority holds that after meeting the statutory requirements of ROW
46.44.020, the State owed no further duty in tort and therefore could not be allocated
fault under RCW 4.22.070. The majority provides insufficient support for the
proposition that RCW 46.44.020 is not an immunity statute and, without any legislative
directive to do so, abrogates the State's long-standing common law duty to maintain
the reasonable safety of its roadways and bridges. For these reasons, I respectfully
dissent.
12
state of WA, Dep't of Transp. v. Mullen Trucking 2005, LTD et al. and
Mullen Trucking 2005, LTD et al. v. State of WA, Dep't of Transp. et al.
Wiggins, J. (dissenting)
13
Dep'-tofTransp. v. Mullen Trucking 2005, Ltd. etal., No. 96538-2
(Yu, J., concurring in dissent)
No. 96538-2
YU,J.(concurring in dissent) — I concur in the result reached by the
dissent.
DepHofTransp. v. Mullen Trucking 2005, Ltd., eM/.,No. 96538-2
(Yu, J., concurring in dissent)
J,