LIABILITY OF THE STATE FOR NEGLIGENCE OF EMPLOYEES OF A MUNICIPAL CORPORATION CONTRACTING WITH THE STATE

LIABILITY OF THE STATE FOR NEGLIGENCE OF EMPLOYEES OF A MUNICIPAL CORPORATION CONTRACTING WITH THE STATE

When a City is performing the State's statutory duty of operating and maintaining a drawbridge located within the City limits, which bridge is a part of a primary state highway, with the City to be reimbursed therefor, the State is not liable for the negligence of the City's employee.

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                                                               December 17, 1954

Honorable Edward F. Riley
State Senator, 35th District
222 Westlake Avenue North
Seattle 9, Washington                                                                                                              Cite as:  AGO 53-55 No. 367

Dear Sir:

            Your recent letter directed our attention to a case in King County wherein the plaintiff was awarded a judgment against the City of Seattle because of the city's negligent operation of the Montlake drawbridge.  Other pertinent facts are that the Montlake Bridge is part of the state highway system which the state must operate and maintain pursuant to the provisions of Chapter 220, Laws of 1949, and that by contract the city has been operating and maintaining the said bridge, with the state reimbursing the city for its expenses.  With respect to these facts, your question may be summarized as follows:

            When a city is performing the state's statutory duty of operating and maintaining a drawbridge located within the city limits, which bridge is part of a primary state highway, with the city to be reimbursed therefor, is the state liable for the negligence of the city's employee?

                                                                     ANALYSIS

            Our answer to this question is that the state is not liable for the negligence of city employees while operating a bridge pursuant to a contract for the state.

             [[Orig. Op. Page 2]]

            The following cases from this state and text authority support the proposition that the state, while performing governmental functions, is immune from liability with respect to injuries occasioned by the negligence of its officers, agents, employees or contractors.  The fact that the city had contracted to do the work in question would not alter this principle in any respect.

            81 C.J.S., States, under the subheading, Liability of State, § 130 at pages 1137, et seq., sets forth the following principle:

            "As a general rule, in the absence of constitutional or statutory provision therefor, a state exercising governmental functions cannot be made to respond in damages for tort, and such sovereign immunity may not be waived or abrogated except by an express statutory enactment or by necessary inference from a statute."

            Billings v. State, 27 Wash. 288, quotes with approval the following at page 293:

            "'That the doctrine ofrespondeat superior, applicable to the relations of principal and agent created between other persons, does not prevail against the sovereign in the necessary employment of public agents, is too well settled upon authority and practice to admit of controversy.  'No government,' says Mr. Justice MILLER, 'has ever held itself liable to individuals for the misfeasance, laches, or unauthorized exercise of power by its officers and agents.'"

            This case establishes the principle that the state, in its governmental capacity, is not liable for the negligence of its officers.

            Riddoch v. State, 68 Wash. 329, 123 Pac. 450 states, at page 332:

            "The doctrine that a sovereign state is not liable for the misfeasance, malfeasance, nonfeasance  [[Orig. Op. Page 3]] or negligence of its officers, agents or servants, unless it has voluntarily assumed such liability, is established by authority so cogent and uniform that isolated expressions which might be construed as tending to the contrary are negligible . . ."

            This case explores quite extensively the doctrine of the sovereign's immunity from liability for acts of negligence of its employees, agents, servants, and so forth.  The court also stated at page 339:

            "The contention that this is an action on contract and not in tort cannot be sustained.  The fact that the state, in making a contract, assumes a liability on the contract, does not create a liability for a tort committed by its officers or agents in connection with the subject matter of the contract, and for which the contract furnishes no basis for a measure of damages . . ."

            Cook v. State, 192 Wash. 602, 74 P. (2d) 199 again reiterates the state's immunity from negligence of its officers and agents.

            It can therefore be seen that the immunity of the State of Washington from liability for the actions of its officers, agents, employees or contractors is well established in the absence of an act of the legislature waiving such immunity.

            The legislature of this state has not waived the immunity of the state with respect to its operations concerning highways.  Our conclusion must therefore be that the state is not liable to the city of Seattle for any negligence of  [[Orig. Op. Page 4]] the city's employees while operating or maintaining the Montlake Bridge.

Very truly yours,

DON EASTVOLD
Attorney General

PAUL SINNITT
Assistant Attorney General