Filing a Tort Claim Against the Government in Washington

You were injured in Washington, maybe by a state employee or a county worker. You're thinking about a personal injury lawsuit. But you have questions about Washington law. Can I sue the state? Do government workers get special protection from injury claims? Aren't there lots of rules for bringing a claim against the city?

We answer those questions and more. After an overview of the issues you're likely to face when making an injury claim against the government, we turn our attention to the specifics of Washington law.

Common Issues in Injury Claims Against the Government

Suing the government isn't like suing your neighbor or a local business. For starters, special rules called governmental immunities shield states, localities, and their workers from many kinds of legal claims. And immunities are just the tip of the iceberg. Make it past those and you'll probably face a variety of rules, procedures, and deadlines specially made to protect the government's interests at your expense.

As you move ahead with your injury claim, be on the lookout for these issues—and perhaps others, too.

Governmental Immunities

Governmental immunities are rules crafted by courts and state legislatures. They go by different names, and each one works a little differently than the others. But all immunities serve a common purpose: To make sure the government, its officers, and its employees aren't legally responsible for the consequences of their misconduct.

When an immunity applies, it's a claim killer. No matter how serious or disabling your injuries might be, an immunity stops your case in its tracks. The good news is that all states have waived (voluntarily given up) their immunities, at least for some kinds of claims. The bad news is that in every state, lots of immunities remain. To have any chance of success, you'll first have to successfully navigate your way around them.

Deadlines and Statutes of Limitations

When you've been hurt by the government and want to bring a claim for compensation (damages), be ready to act quickly. Special deadlines, including lawsuit filing deadlines called statutes of limitations, often require that you act within a matter of months—maybe even before you've had enough time to gather all the facts.

Why the need for such speed? Does this mean you'll get paid more quickly than with other kinds of claims? Unfortunately, no. These deadlines aren't meant to make sure you get paid faster—the government doesn't want to pay you at all. Like government immunities, these quick deadlines are claim killers. Miss an arbitrary deadline and, in most states, your claim comes to an end.

Special Processes and Procedures

Chances are you'll have to follow special processes and procedures that don't apply in other kinds of cases. Here's the most common example. In almost every state, before you can sue the government or its workers, you first must send the government written notice of your injury or your intent to file a lawsuit.

Odds are the government already knows about your claim—an employee filed an incident report or a police officer made an accident report, for example. So why insist on you filing a notice of claim? If you're thinking "claim killer," you're paying attention. Some claimants, unaware that notice is required, fail to file it. Typically, that spells the death of their claim.

Limits on Damages You Can Collect

When all else fails—you've navigated through the immunities, jumped through the special procedure hoops, and met all the artificially short deadlines—the government still has one card left to play: Damage limits, also known as "caps." These laws, as the name suggests, arbitrarily limit the personal injury damages you can recover if you win your case.

In some states, the caps are so low as to add insult to injury—just tens of thousands or a few hundred thousand dollars. That amount probably covers routine fender benders and other minor or moderate claims. But if your injuries are serious or catastrophic, it won't come close to meeting your needs.

Where to Start? Your State Tort Claims Act

When you're analyzing a possible injury claim against the government, the starting point should be your state's "tort claims act" or similar law. A "tort" is just a wrongful act that causes personal injury or property damage. A "tort claim" is an insurance claim or a civil lawsuit to collect damages for tort injuries.

The term "tort claims act" is a bit misleading. State tort claims laws don't regulate all tort claims generally. Instead, they lay down the basic rules—immunities, deadlines, and special procedures—for tort claims against the state. In some states, the tort claims act also covers local governments. State courts usually fill in the blanks with case decisions that explain and interpret the law.

Personal Injury Claims Against the State of Washington

Washington's tort claims act is found at Chapter 4.92 of the Revised Code of Washington. The tort claims act covers only claims against Washington. A separate law (discussed below) regulates injury claims against Washington local governments like counties, townships, and cities.

If you've been hurt by Washington or its officers or employees and you're thinking about a lawsuit, the tort claims act is your starting point. It broadly waives Washington's sovereign immunity, giving you permission to sue the state for a variety of injuries. Washington puts far fewer roadblocks in your lawsuit path than most other states. You have to give the state notice of your injury claim, but there aren't any other special procedures or damage caps.

Washington's Partial Waiver of Sovereign Immunity

Washington's partial waiver of sovereign immunity is among the broadest in the nation. It makes the state "liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation." (Wash. Rev. Code § 4.92.090 (2024).)

What kinds of personal injury claims are allowed? The most common, by far, are negligence lawsuits. A negligence suit claims that the defendant (the party you're suing) acted carelessly and caused you some injury. Typical negligence actions against the government include claims for injuries caused by:

• car accidents
• poorly designed or built roads, highways, bridges, and walkways
• dangerous properties, like poorly maintained sidewalks or steps, or slippery floors or walking surfaces, and
• medical malpractice.

Limits on the Right to Sue

Broad as it is, Washington's waiver of immunity is still only partial. Other immunities and limits might apply, including:

• the public duty rule
• discretionary functions immunity, and
• absolute immunity for legislative and judicial functions.

The public duty rule. To sue someone who injures you—your neighbor, another driver, or the government—you start by proving that they owed you a "duty of care." In the simplest terms, you must show that the party you're suing was required by law to act carefully toward you.

When you bring a personal injury claim against Washington, expect the state to argue that it owed a duty to the public generally, not to you in particular. If that argument works—your lawyer can explain why it probably won't—it defeats your claim entirely.

Washington's version of the public duty rule is subject to a variety of exceptions, and the Washington Supreme Court has decided that it only applies in cases involving a statutory duty to act, not to claims based on common law negligence. Your lawyer can fill you in on the details, but the short of it is that the public duty rule isn't likely to defeat your injury claim against Washington.

Discretionary functions immunity. Washington law, like that of most states, immunizes certain officials from liability (legal responsibility) for discretionary functions. Discretionary functions are high-level policymaking activities calling for the exercise of judgment and discretion. Because they often involve difficult, unpopular decisions, Washington law shields officials from responsibility when they participate in the discretionary formation, adoption, or review of state policies.

Absolute immunity. Some activities go to the most basic, foundational aspects of governing. The best known examples are legislating and participating in judicial functions. Lawmakers, judges, and prosecutors typically enjoy absolute immunity from liability when they're engaged in the core duties of their office. Upset because your state legislator voted against a proposed law you favor? You'll find yourself standing at the end of a long line, and nobody in that line is entitled to sue.

Prefiling Notice Requirement

Before you can sue Washington for a personal injury, you first must provide the state with written notice of your claim. You do this by filing the required claim form with the Washington Office of Risk Management (ORM). Note that use of the approved claim form is mandatory. You can file by fax, email, or online.

Wash. Rev. Code § 4.92.100 (2024) lists what your notice of claim must include. Be sure to provide all the information the form asks for or ORM might reject your claim. There isn't a separate deadline for filing this notice. But once you've filed it, you'll have to wait at least 60 days before you can sue. The statute of limitations—the deadline to file your case in court—is "tolled" (temporarily paused) during this 60-day waiting period. (Wash. Rev. Code § 4.92.110 (2024).)

Filing notice of your claim isn't the same thing as suing the government in court. Once you provide notice, the government will consider your claim and will either allow or disallow it. If your claim is denied and you still want to pursue it in court, you must file your lawsuit before the statute of limitations expires.

The Statute of Limitations

Washington doesn't have a special statute of limitations for claims against the government. You look to the same filing deadlines that apply to all other personal injury lawsuits. (Wash. Rev. Code § 4.92.50 (2024).)

As a general rule, you have three years—usually from the date you were injured—to sue Washington in the state's main trial court, called the superior court. Different deadlines might apply when you:

• don't discover your injury right away
• were intentionally injured, or
• were legally disabled (unable to sue on your own behalf) at the time you were hurt.

(Wash. Rev. Code § 4.16.080(2) (2024); Wash. Rev. Code § 4.16.100(1) (2024); Wash. Rev. Code § 4.16.190 (2024).)

Claims Against Local Washington Governments

The rules for claims against Washington local governments—townships, counties, cities, and the like—are much the same as those for claims against the state. Washington has waived governmental immunity for its local governments, meaning unless the public duty rule or one of the immunities discussed above applies, you're allowed to sue for personal injuries. (See Wash. Rev. Code § 4.96.010 (2024); Wash. Rev. Code § 4.24.470 (2024).)

Prefiling Notice of Claim

As with claims against the state, you must deliver notice of your claim to the local government you intend to sue before you can file in court. Each local government has to designate a person who's authorized to receive notices. Be sure to file your claim before the statute of limitations (discussed above) runs out.

Local governments can use the same ORM claim form used by the state, or they can create their own form. Make certain to include all the information detailed in Wash. Rev. Code § 4.96.020 (2024).

Check With the Local Government

Before you pursue an injury claim against a Washington local government, ask the clerk's office or law department about special notice, filing, or other rules you might be required to follow. Quite often, you can find some or all of this information online. Better yet, ask a local attorney for details.

Do You Need a Lawyer for Your Injury Claim Against the Government?

In a word, yes. Claims against the government are among the most complex and difficult of all personal injury actions. You'll face a daunting array of special laws, rules and procedures so convoluted and indecipherable that many lawyers who don't specialize in government claims simply won't touch them. The risk of error is too great.

Your government opponent will be represented by an army of lawyers. Without legal help in your corner, odds are you'll quickly find yourself in over your head. You only get one chance to present your claim. Make it count.

When you're ready to move forward with your claim, here's how to find an attorney who's right for you.