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AGO 1957 No. 5 - January 18, 1957
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John J. O'Connell | 1957-1968 | Attorney General of Washington

CIVIL DEFENSE ‑- LIABILITY OF STATE; STATE ‑- LIABILITY FOR CIVIL DEFENSE ACTIVITIES

The state is liable under RCW 38.52.180 for the following: (1) Damages to private housing facilities or property, engaged by duly authorized representatives of the state civil defense agency resulting from the negligence or fault of refugees; (2) Injuries to persons or property caused by negligence of a civil defense worker engaged in civil defense activities; (3) Injuries to volunteers commandeered into service after proclamation by the governor of the existence of a disaster.

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                                                                 January 18, 1957

Honorable D. E. Barbey
Director of Civil Defense
P.O. Box 519
Olympia, Washington                                                                                                                  Cite as:  AGO 57-59 No. 5

Dear Sir:

            We acknowledge your request for a written answer to type questions which you indicated might be asked in connection with civil defense activities.  The questions you submitted were:

            (1) In the event private housing facilities or property are damaged when used for reception of flood refugees, is state civil defense liable in any manner, and if so, under what conditions?

            (2) Is state civil defense responsible for property damage and personal injuries caused by equipment being used in disaster work?  If so, under what conditions?

            (3) Is state civil defense responsible for injuries received by volunteers who work in a disaster, but who are not enrolled in civil defense?

                                                                     ANALYSIS

            The civil defense act was first passed in 1951.  In general, there were no provisions in the act for the assumption of any liability for damages resulting from civil defense activities until the passage of the present act, RCW 38.52.180, as amended by chapter 145, Laws of 1953.

            The pertinent provisions of this section, in so far as applicable to your inquiry, provide:

            "All legal liability for damage to property or injury or death to persons (except a civil defense worker, regularly enrolled and acting as such),  [[Orig. Op. Page 2]] such), caused by acts done, or attempted, under the color of this chapter in a bona fide attempt to comply therewith shall be the obligation of the state of Washington.  Suits may be instituted and maintained against the state for the enforcement of such liability, or for the indemnification of persons appointed and regularly enrolled as civil defense workers while actually engaged in civil defense duties, or as members of any agency of the state or political subdivision thereof engaged in civil defense activity, or their dependents, for damage done to their private property, or for any judgment against them for acts done in good faith in compliance with this chapter: Provided, That the foregoing shall not be construed to result in indemnification in any case of wilful misconduct, gross negligence or bad faith on the part of any agent of civil defense: Provided, That should the United States or any agency thereof, in accordance with any federal statute, rule or regulation, provide for the payment of damages to property and/or for death or injury as provided for in this section, then and in that event there shall be no liability or obligation whatsoever upon the part of the state of Washington for any such damage, death, or injury for which the United States government assumes liability."

            As a preface to our remarks, it should be clearly emphasized that the state is not an insurer of all damages or injuries which result from civil defense activities.  On the contrary, the state is clothed with a governmental immunity which absolves it from the torts of any of its agents, employees or officers (Riddoch v. State, 68 Wash. 329).  Consequently, only in the very limited instances in which the state assumes liability for its torts is there any liability.  Therefore, your inquiry resolves itself into just what liability has the state assumed by the statute above quoted.

            By the act the state has permitted to be sued for:

            (1) All legal liability for damages caused by acts done in a bona fide attempt to comply with the chapter, and

            (2) Indemnification of civil defense workers while regularly engaged in civil defense duties done in good faith in compliance with the chapter.

            Consequently, before there can be any liability on the part of the  [[Orig. Op. Page 3]] state, the damages must result from the performance of civil defense services by civil defense workers, who are either persons registered with and to whom an identification card has been issued for the purpose of engaging in an authorized civil defense service, or a public employee called upon to perform such service (RCW 38.52.010), or a person impressed into such service (RCW 38.52.110 (2)).  In other words, they must be an agent of the state, duly authorized as provided in the chapter, before there is any legal liability.

            Since the state has assumed as obligation under this statute when the damage or injury occurs, the next question to determine is under what conditions does it become liable.  "All legal liability for damage to property or injury or death to persons . . . shall be the obligation of the state . . ."  What then is the "legal liability" which the state assumes?

            Bouvier's Law Dictionary, Fourth Revision, contains the following pertinent definitions of the applicable terms:

            "LIABILITY.  Responsibility; the state of one who is bound in law and justice to do something which may be enforced by action. . . .  This liability may arise from contracts either express or implied, or in consequence of torts committed."

            "DAMAGES.  The indemnity recoverable by a person who has sustained an injury, either in his person, property or relative rights, through the act or default of another.

            ". . .

            "In practice.  To constitute a right to recover damages, the party claiming damages must have sustained a loss; the party against whom they are claimed must be chargeable with a wrong; the loss must be the natural and proximate consequence of the wrong."

            From the foregoing, it follows then that the state has assumed to be obligated in damages where persons or property have been wrongfully injured as the natural and proximate consequence of the performance of civil defense services by civil defense workers duly authorized to perform such services.

            Based on the foregoing general analysis, we answer your specific questions as follows:

             [[Orig. Op. Page 4]]

            (1) We assume that private housing facilities were arranged for the reception of flood refugees by duly authorized agents of the state civil defense organization.  In such instances, the liability for damages to the property would be that which exists between landlord and tenant.

            The general rule, as stated in 51 C.J.S. 1076, Landlord & Tenant, § 366b, is:

            "In the absence of a covenant be the landlord to repair, the tenant has been held to be under duty to repair, as far as his control extends; but such duty has been limited to repairs necessitated by his fault or negligence, to ordinary, as distinguished from substantial or general, repairs, and to repairs not caused by ordinary wear and tear."

            Therefore, if the damages to the private housing facilities or property, engaged by duly authorized representatives of the state civil defense agency, are the result of negligence or fault of the refugees, the state would be responsible.  The state would be liable to repair the damages caused.

            (2) The basis of liability for injuries to the person or property of another is negligence.  Miller v. Edwards, 25 Wn. (2) 635.

            The essential elements of actionable negligence are (1) the existence of a duty, (2) a breach thereof, and (3) a resulting injury.  McCoy v. Courtney, 25 Wn. (2d) 956.  One is negligent if he unintentionally breaches a duty he owes to another.  The duty which one person owes to another depends in part on the relationship existing between them.  Squires v. McLaughlin, 44 Wn. (2d) 43.

            The duty is based on the degree of care which a man of ordinary prudence would exercise under the particular circumstances.  LaMoreaux v. Fosket, 45 Wn. (2d) 249.  A person is negligent if he does an act which a person of ordinary prudence would not have done under the existing circumstances.  Severns Motor Co. v. Hamilton, 35 Wn. (2d) 602.

            So, if the property damages or personal injuries are caused by the negligence of a civil defense worker, the state would be liable.

            (3) In general, the state civil defense would not be liable for injuries received by volunteers who work in a disaster, who are not enrolled civil defense workers, except to protect them from wanton or wilful injury.

            Geer v. Sound Transfer Co., 88 Wash. 1.  However, if such workers were commandeered in the manner authorized by the 1955 amendment  [[Orig. Op. Page 5]] to RCW 38.52.110 (§ 13, chapter 178, laws of 1955), they would "be entitled during the period of such service to all . . . benefits . . . as are provided . . . for registered civil defense workers."

            The liability for injuries to a volunteer who is commandeered into service is made a specific exception to the requirement that the liability for damages is limited to duly enrolled workers.  Being an exception, the statutory provisions which entitle the volunteer to the benefits of the act must be met as a necessary prerequisite to the state's obligation.  The statute above cited, which permits commandeering, contains the following provision:

            ". . . after proclamation by the governor of the existence of such disaster . . ."

            Consequently, there must be a gubernatorial proclamation of the existence of a disaster before civil defense officials will have the power to commandeer volunteers.  In such an event, the volunteers so commandeered would be entitled to the same benefits of the act as registered civil defense workers.

            Our analysis of the questions submitted has necessarily had to be general, since the factual situations affect the application of the general rules.  We hope that the analysis of the general rules applicable to an understanding of the problems which might be presented.

Very truly yours,

JOHN J. O'CONNELL
Attorney General


MITCHELL DOUMIT
Assistant Attorney General

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