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AGLO 1978 No. 5 - February 28, 1978
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Slade Gorton | 1969-1980 | Attorney General of Washington

TORT LIABILITY ‑- POTENTIAL STATE LIABILITY IN CONNECTION WITH PROPOSED DAM SAFETY INSPECTION PROGRAM

If the state of Washington were to assume responsibility, by law, for inspecting and approving the operation of nonfederal dams, it would then follow that the State could, in a given case, be held liable ". . . for the failure of the dam which had been inspected and approved."

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                                                                February 28, 1978

Honorable Rod Chandler
State Representative, 45th Dist.
13003 N.E. 143rd
Kirkland, Washington 98033                                                                                                                 Cite as:  AGLO 1978 No. 5

Dear Sir:

            By recent letter you have directed our attention to a certain draft bill relating to dam safety and then have asked for our opinion on the following related question:

            "If the State of Washington assumes responsibility for inspecting and approving the operation of non-federal dams, would the state assume any liability for failure of a dam which had been inspected and approved?"

            We answer in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Under the draft bill which you have submitted to us with your request, the state, acting through the Department  [[Orig. Op. Page 2]] of Ecology, would be given the responsibility for conducting a dam safety program.  Included within the program would be an inspection program as provided for by the following language of § 4 of the bill:

            "The department shall carry out a continuing dam safety inspection program.  The department shall make inspections, conduct investigations and, in relation thereto, require owners of dams to keep records, conduct tests or investigations, provide data, make reports, perform work, or carry out any activity such as may reasonably be required to disclose information sufficient to enable the department to determine the condition of dams and reservoirs with regard to their safety."

            Of course, as you will understand, the question of legal liability for any given action (or inaction) resulting in compensable harm (damages) to other individuals is one which, under the applicable principles of tort law, is dependent upon all of the relevant facts of each particular case.  Given that premise, however, it readily follows that if one of the facts of a given case were to be the failure of a state official properly to perform some specified statutory inspection function, then civil liability on the part of the state for any resulting compensable harm could very well follow.  See,e.g.,Campbell v. Bellevue, 85 Wn.2d 1, 530 P.2d 234 (1975), in which the defendant city was similarly held to be liable for the death of an infant which was found to have been proximately caused by the failure of a city electrical inspector to have discovered an unlawful outdoor wiring connection.1/

             Therefore, in most basic terms, our answer to your question, as above stated, must be in the affirmative.  If the State of Washington were, through the enactment of legislation, to assume responsibility for inspecting and approving  [[Orig. Op. Page 3]] the operation of non-federal dams it would then follow that the State could, in a given case, be held liable ". . . for the failure of a dam which had been inspected and approved."

            It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/There, as with your immediate question, the problem was an inspection which occurred but failed to disclose the defect.  Conversely, however, the mere imposition of a statutory duty to inspect on a periodic basis has recently been held not to result in liability for the harmful consequences of the defect which could (or should) have been disclosed if an inspection had, in fact, taken place at a particular point in time.  See,Loger v. Washington Timber Prods., 8 Wn.App. 921, 509 P.2d 1009 (1973) andNerbun v. State, 8 Wn.App. 370, 506 P.2d 873 (1973).

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