# McCluskey v. Handorff-Sherman

> Washington Supreme Court · October 13, 1994 · 125 Wash. 2d 1

URL: https://www.frixlaw.com/law-library/cases/9855022

## Case

- **Full name:** Nadine McCluskey, Individually, as Guardian, and as Personal Representative, Respondent, v. Timothy Handorff-Sherman, Defendant, the State of Washington, Petitioner
- **Court:** Washington Supreme Court
- **Decided:** October 13, 1994
- **Citations:** 125 Wash. 2d 1; 882 P.2d 157; 1994 Wash. LEXIS 632
- **Precedential status:** Published
- **Opinion:** Concurring in part by Brachtenbach
- **Judges:** Madsen, Brachtenbach
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9855022

## Opinion text

Brachtenbach, J.
(concurring in part, dissenting in part) — I concur in the result reached by the majority, but disagree with its speculative reasoning on two theories. Much *14 of the opinion is dicta, ignores the record and is wrong in its analysis.
This should be a very narrow decision dictated by the record. The majority agrees that the trial court was correct in denying a new trial and the Court of Appeals properly affirmed. Specifically, the majority holds:
The evidence at trial was, as the State now concedes, that signing decisions are not part of the priority programming process or affected by financial constraints. The State made no objections to the court’s instructions joining the warning and improvement claims and treating them as alternative duties, nor did it object to the verdict form. The State now admits that the warning claim was properly for the jury, and concedes that because of the general nature of the verdict it is impossible to know whether the jury found liability based on the failure to warn or the failure to resurface or construct a barrier. We cannot now dissect the jury’s general verdict, nor can we disregard it.
Majority, at 10-11.
That should end the matter; the opinion need contain little more. But the majority goes on to speculate how the State might have defended and what the law might be if the State had tried the, case differently. The majority discusses discretionary immunity and funding limitations.
Consider first discretionary immunity as a complete defense to any liability. After discussing that issue, the majority concludes: "[WJe can draw no conclusions about discretionary immunity in this case because of the State’s abandonment of the theory at trial”. Majority, at 13. That conclusion should be the extent of the discussion about discretionary immunity, but the majority goes on, ignoring Washington authority and relying on inapposite cases from other jurisdictions.
Should there be any doubt about the fact there should be NO analysis of discretionary immunity, I quote the State’s position at trial: "Now, we are not claiming immunity in this case. We are not claiming immunity. I think the planning function is a subject for immunity argument, but we are not making it here.” (Italics mine.) Rep.’s Tr., at 2219. The State’s brief never mentions discretionary immunity.
*15 Some comment on the majority’s discussion of discretionary immunity is necessary because it unnecessarily confuses the issue with an erroneous analysis. The majority notes Evangelical United Brethren Church v. State, 67 Wn.2d 246, 252 , 407 P.2d 440 (1965). This is a judicially created exception to the very broad statutory waiver of all immunity. 2 RCW 4.92.090. It is an "extremely limited exception”. Stewart v. State, 92 Wn.2d 285, 293 , 597 P.2d 101 (1979). Stewart specifically held that the negligent design of a bridge and its lighting system was not within discretionary immunity. The majority ignores Stewart , but it defies reason to suggest, as does the majority, that failure to resurface a curve or install a short median barrier might fall within discretionary immunity.
Not even the Department of Transportation (DOT) believes it has the immunity suggested by the majority. In 1991, at the request of DOT, Substitute Senate Bill 5721 was introduced. It would have immunized the State from liability for highway design, construction, or signing if such conformed to current engineering or design standards. However, the bill itself, in its declaration of legislative intent, stated: "However, it will not relieve government agencies, from meeting their public obligations to maintain safe roadways and facilities, nor to respond to public notice of unsafe conditions.” Substitute Senate Bill 5721, 52d Legislature (1991). Further, the bill provided it did not apply to damages from a defect from deficient maintenance of which the agency had actual notice. Br. of Resp’t. app. A.
The Legislature did not enact DOT’s request for limited immunity. One can only conclude that the Legislature did not intend to create a special immunity for highway defects, as the majority would appear to want. It is significant that when the Legislature intends to provide immunity, it does so specifically as in qualified immunity for certain recreational uses, *16 RCW 4.24.210; certain actions regarding mental illness evaluation and treatment, RCW 71.05.120; and militia’s federal activities, RCW 38.40.025. The Legislature has not granted similar immunity for actions based on negligent highway design or maintenance; indeed, it has refused to do so.
The authorities relied on by the majority do not support its suggestion that there might have been discretionary immunity if the State had not repeatedly waived that defense. First cited is Jenson v. Scribner, 57 Wn. App. 478 , 789 P.2d 306 (1990), which is no authority at all when one reads the case. The plaintiffs in Jenson conceded the claimed fault was a result of a discretionary act. The parties cannot stipulate to what is the law and the case stands for nothing relevant.
The majority cites cases from other jurisdictions, but neglects to consider whether those states have the same law as we do on waiver of immunity and our extremely limited exception of discretionary immunity.
The majority cites Julius Rothschild & Co. v. State, 66 Haw. 76 , 655 P.2d 877 (1982). It fails to recognize that discretionary immunity in Hawaii is not an extremely narrow exception, but rather there is a broad grant of immunity in a limited statutory waiver of governmental immunity. The statute excludes any tort claim based upon "the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee”. Rothschild, at 79. Thus, discretionary immunity is the rule rather than the exception. Further, the facts, not mentioned by the majority, clearly distinguish Rothschild. The claim was for property damages from a flood. Plaintiff claimed the State should have replaced an existing, completely functional 2-span concrete bridge to meet expected floods every 50 years rather than every 25 years as the bridge was designed to accommodate. Those facts are a far cry from resurfacing a curve or installing a short barrier.
Next, the majority cites Industrial Indem. Co. v. State, 669 P.2d 561 (Alaska 1983). Again, the nature of that state’s governmental immunity makes the case of little relevance. The Alaska statute specifically exempts all discretionary *17 functions and even excuses an abuse of discretion. Unlike the facts in this case, there was nothing unusual about the particular road and the court noted that making improvements in similar highways would require "several tens of millions of dollars.” Industrial Indem., at 565. The dissent pointed out that the majority confused the absence of negligence with immunity. The majority here does the same.
The majority’s reliance on State ex rel. Adkins v. Sims, 130 W. Va. 645 , 46 S.E.2d 81 (1947) is plain amazing. The citation by the majority is the first and only time in 47 years that any other jurisdiction has cited the case for the point stated by the majority. The majority conveniently fails to compare the law of that state with ours. In West Virginia, by statute there is no liability for negligence in the construction and maintenance of highways. In fact, its constitution prohibits suits against the State. See State ex rel. Vincent v. Gainer, 151 W. Va. 1002 , 158 S.E.2d 145 (1967). The only issue was whether the State had a "moral duty” to respond in damages.
It seems beyond question that discretionary immunity is not an issue and should not be discussed. I repeat the State’s own statements on the record: "Now, we are not claiming immunity in this case. We are not claiming immunity.” Rep.’s Tr., at 2219.
As a second major point the majority engages in a confusing and unnecessary discussion about funding limitations. So far as I can discern, the majority reaches no conclusion beyond stating:
We are more persuaded, however, by the State’s additional contention that a full discussion of funding limitations was relevant to the discussion of whether the State was reasonable in failing to resurface or to construct a median barrier.
Majority, at 8. What a "full discussion” means in the context of the admission of evidence and jury instructions is not clear.
The majority’s confusion is readily apparent. It states as quoted above that a "full discussion” of funding limitations was relevant to determining whether the State was "reason *18 able” in failing to act. Presumably, the majority is trying to frame the question as one of the relevance of the admission of funding limitations on the question of the State’s negligence. In other words, the majority seems to consider lack of funding as a part of the feasibility of corrective action. Unfortunately for the majority, that is not at all what the State wanted. The majority simply ignores the State’s requested instruction which would have provided a complete defense. Clerk’s Papers, at 589-604. Granting a complete defense is quite different from the question of relevance of evidence going to feasibility.
The State argues that funding limitations should be relevant to its negligence, but cites no authority that such should be a complete defense. Br. of Appellant, at 47-48.
What the majority and the State attempt is to convert a computer generated array of priorities, used as a budgeting tool, into a legal defense against well-established tort liability. RCW 47.05 is simply a mechanism, as its title states, of "priority programming for highway development”.
The State was permitted to present evidence of priority programming, including evidence about high accident rates and about this particular location. Rep.’s Tr., at 2711-13, 2854-75. However, the trial court refused to admit evidence that a lack of funding was a complete defense to liability for these specific defects. The majority does not mention the trial court’s reasoning:
No one from the Department testified that if we had more funds we would have solved this problem on State Route 900. Had that been the case, then I think the Priority Array issues would have been very relevant and considered by this jury. But that’s not the position of any witness. . . .
. . . [I]n this case no one ever identified this area as an area which needed concern. No one ever testified, as I said earlier, that if there was money, we would have fixed this problem. The position of the State has been — and very consistently — there is no problem.
And alternate defenses, even though they are recognized in law and perfectly appropriate under some facts or circumstances would not be appropriate in this case as being totally outside the scope of competent evidence, relevant evidence. *19 Even if at all probative, let the record reflect that I find that much more prejudicial in this case than any possible probative value.
Rep.’s Tr., at 2947-48.
The problem for the State’s position on funding is that this record does not permit separate consideration of that issue from liability for failure to properly and safely sign the highway. The majority admits this: "[W]e note that the financial considerations addressed in the Priority Array statute have no relevance to the issue of signing.” (Italics mine.) Majority, at 10.
The majority continues: “We also note that the State never requested an instruction allowing the jury to consider the priority programming process in deciding whether the State acted reasonably with regard to McCluskey’s maintenance/improvement claim.” Majority, at 10.
The majority correctly concludes that this record: “/P/re- vents us from concluding that any error with regard to the priority programming evidence warrants reversal.” (Italics mine.) Majority, at 10. In other words, on this record, exclusion of evidence about funding limitations was not error and the issue is not presented. Despite its own words and correct exclusion of the issue, the majority spends five pages discussing why priority programming and funding limitations might be relevant to determining negligence even though the State claimed it as a complete defense.
Some response is necessary to this nonissue, which does not warrant reversal according to the majority, because it errs in its analysis.
Somehow the majority goes off on a tangent as to whether the priority programming/budgeting process sets a standard of care for the State. It reaches this puzzling conclusion:
While such allocation [of funding] is undoubtedly intended to further highway safety, we cannot see how failing to adhere to prioritizing procedures set forth in RCW 47.05 violates a standard of care owed to highway users.
Majority, at 8. That statement seems entirely irrelevant. Plaintiff makes no such claim and the State contends just *20 the opposite, i.e., that compliance with the statute is a complete defense.
The majority cites Modrell v. State, 179 Mont. 498 , 587 P.2d 405 (1978), for the amazing proposition that a complete waiver of governmental immunity does not alter "the State’s common law defenses regarding highways”. Majority, at 9. The Modrell case says no such thing.
The majority fails to note that the Modrell court approved a jury instruction exactly contrary to what the majority advocates. The approved instruction read as follows:
"If you find the defendant negligent in planning or constructing or maintaining the highway in question, you may not excuse such negligence on the ground that proper construction was beyond the financial means of the State. Cost is not a factor in the duty of the State to plan, construct and maintain its highways in a reasonable safe condition.”
Modrell , at 501. Accord Townsend v. State, 227 Mont. 206, 210 , 738 P.2d 1274, 1277 (1987).
In stark contrast, the State’s proposed instruction here would have instructed the jury that if "planning and programming for SR 900 . . . was carried out in accordance with the provisions of Washington’s priority programming law . . . you may not find the Department of Transportation liable.” Br. of Appellant app. 1 (Def.’s proposed instruction 32).
The only other authority cited for the majority’s proposition about defenses is Weiss v. Fote, 7 N.Y.2d 579 , 167 N.E.2d 63 (1960), which has nothing to do with funding, but whether establishing a "clearance interval” at a traffic light was arbitrary or unreasonable.
The majority then, without reaching a conclusion, appears to abandon the notion that lack of funding is a defense and turns to a totally different concept that "funding limitations are relevant in defending the State against a claim that it was negligent when it failed to make highway improvements.” Majority, at 9. Again, this new issue seems entirely irrelevant to this ¡case because the State presented it as a complete defense.
*21 The majority uses Washington cases rather carelessly. It cites Berglund v. Spokane Cy., 4 Wn.2d 309, 318 , 103 P.2d 355 (1940). Majority, at 9. It is interesting to note that the page of the opinion cited by the majority is largely a summary of the County’s arguments that if it were liable "progress would be paralyzed”. The court did not accept the argument, but rather stated:
To sustain respondent’s [County] contention, would be to hold, as a matter of law, that, regardless of the conditions existing on the bridge, regardless of the magnitude of the risk to pedestrians, and regardless of how simple and economical the construction of a sidewalk or the reservation of space for pedestrians might be, the county would nevertheless be absolved from any liability for negligence.
Berglund , at 318-19. Note that is exactly what the State proposed in this requested instruction.
However, the Berglund court continued with a more complete statement than acknowledged by the majority:
The financial burden, technical considerations, and other factual circumstances, are all factors to be considered in determining whether or not the county complied with its duty to use reasonable care.
Berglund , at 319.
The majority also makes too much of an isolated, partial quote from Lucas v. Phillips, 34 Wn.2d 591 , 209 P.2d 279 (1949). The court held that the mere maintenance of a narrow bridge was not negligence. That point alone is the reference quoted by the majority about "an imponderable burden upon the various counties throughout the state which maintain many bridges of this type.” Lucas , at 596. In other words, there was nothing unusual about this particular bridge. Contrast the evidence here about the high accident rate at this particular location. The Lucas court went on to hold that financial consideration was not a factor in finding the County liable because it "was bound to use such care as would keep it in a reasonably safe condition for those who might go upon it; and this duty included the placing of proper warning signs when necessary.” Lucas , at 597. This is *22 precisely one of the issues submitted to this jury in this case and the reason for affirming an unsegregated verdict.
The majority’s use of Tanguma v. Yakima Cy., 18 Wn. App. 555 , 569 P.2d 1225 (1977), review denied, 90 Wn.2d 1001 (1978) is also misleading. The court, in dicta, observed that there is "no duty to replace every highway structure [a bridge] not conforming to present-day standards.” (Italics mine.) Tanguma , at 560. This case does not involve replacement of every highway, but simply negligence in not correcting a particular location where the percentage of median crossover accidents was higher than comparable roadways in Western Washington and where an expert testified that this particular location was "unreasonably dangerous”. Rep.’s Tr., at 574-75.
Next, the majority takes a partial quote of dicta from Bailey v. Forks, 108 Wn.2d 262 , 737 P.2d 1257 , 753 P.2d 523 (1987). The Court of Appeals in this case correctly distinguished Bailey. It noted that Bailey involved the public duty doctrine and specifically the government’s duty to protect people from the conduct of third persons rather than the State’s own conduct. Further, Bailey involved liability of a municipality which is dependent on state law to generate revenue while the State is in control of the allocation of funds. McCluskey v. Handorff-Sherman, 68 Wn. App. 96 , 841 P.2d 1300 (1992), review granted, 121 Wn.2d 1021 (1993).
The whole issue is ably and correctly summarized by Judge Agid in Savage v. State, 72 Wn. App. 483, 495 , 864 P.2d 1009 (1994):
While we agree generally with the distinctions drawn in McCluskey [v. Handorff-Sherman, 68 Wn. App. 96 , 841 P.2d 1300 (1992), review granted, 121 Wn.2d 1021 (1993)], neither it nor Bailey [v. Forks, 108 Wn.2d 262, 271 , 737 P.2d 1257 , 753 P.2d 523 (1987)] is entirely on point. We can best resolve this issue by reference to RCW 4.92.090. That statute, discussed above, provides that the State "shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.” While the availability of funding may be relevant to the reasonableness of the officers’ actions, there is no authority for the State’s argument that it was entitled to a specific instruction on this issue. RCW 4.92- *23 .090 mandates that the State is to be treated in the same manner as a private person or corporation. No authority is cited supporting the proposition that a private person or a corporation would be entitled to have the jury instructed that it could consider their particular financial circumstances in evaluating the reasonableness of their conduct. The trial court did not abuse its discretion in refusing to instruct the jury that it could consider the State’s resources in judging the reasonableness of the State’s conduct.
(Footnote omitted.) Savage , at 495.
I agree entirely with Judge Agid’s analysis and conclusion.
In summary, discretionary immunity is not an issue in this case. It should not be discussed. If it were an issue, the conduct here involved does not fall within the extremely narrow exception created by discretionary immunity. The absence of funding for these minor repairs to a specific location is not a defense. Upon this record, there was no reason to admit testimony of the absence of funding nor to instruct that such was a complete defense as requested by the State.
I would limit the holding to the issues properly before the court. As noted above, the following portion of the majority opinion correctly summarizes the only ground needed to affirm in this case:
The evidence at trial was, as the State now concedes, that signing decisions are not part of the priority programming process or affected by financial constraints. The State made no objections to the court’s instructions joining the warning and improvement claims and treating them as alternative duties, nor did it object to the verdict form. The State now admits that the warning claim was properly for the jury, and concedes that because of the general nature of the verdict it is impossible to know whether the jury found liability based on the failure to warn or the failure to resurface or construct a barrier. We cannot now dissect the jury’s general verdict, nor can we disregard it.
Majority, at 10-11.
Utter and Johnson, JJ., concur with Brachtenbach, J.
Reconsideration denied November 17, 1994.
There is an unbriefed question of the relevance of the doctrine of limited discretionary immunity because governmental liability for the negligent maintenance of highways existed long before the abolishment of governmental immunity by RCW 4.92.090. Hewitt v. Seattle, 62 Wash. 377 , 113 P. 1084 (1911).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9855022. Public record. Not legal advice.