AN ACT Relating to claims involving the design of highways, roads, streets, and sidewalks; amending RCW 43.10.100; adding a new section to chapter 4.24 RCW; adding a new section to chapter 4.92 RCW; adding a new section to chapter 4.96 RCW; adding a new section to chapter 5.44 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that the proper disposition of claims against the state, counties, cities, and towns for damages arising out of tortious conduct in the design, construction, maintenance, or operation of highways, roads, and streets necessitates that these governmental bodies have notice of claims. The number of vehicular accidents on public highways within the state of Washington exceeds one hundred thousand annually, and these governmental bodies have no method to determine which accidents may result in claims against them so as to be able to preserve in a timely way necessary evidence. The legislature further finds that there is substantial difference between private litigants, who have knowledge of their direct involvement in a vehicular accident, and governmental bodies, which have no notice of their potential involvement in specific vehicular accidents. Evidence in vehicular accidents must in a timely manner be examined or preserved to properly resolve claims or litigation, thus, it is essential that governmental bodies have a timely opportunity to gather and preserve evidence in order that meritorious claims can be promptly paid and claims without merit rejected. The state of Washington, therefore, exercising its police and sovereign power, declares that notice of such claims must be given to the respective governmental body in the manner provided in sections 3 and 4 of this act.

The legislature further finds that it has the authority to waive sovereign immunity or condition the waiver of the same by virtue of its constitutional authority to direct in what manner suits may be brought against the state, and it hereby conditions its waiver of sovereign immunity upon compliance with sections 2 through 4 of this act.

The legislature intends that the state and all municipal corporations shall be liable for damages arising out of their direct tortious conduct and that of their officers, agents, servants, and employees, where such conduct involves activities or functions performed both by such state and municipal corporations and by persons and corporations in the private sector. The legislature recognizes that the state and municipal corporations cannot afford to update all highways, roads, streets, or sidewalks to meet optimal designs, and that users of such public facilities must recognize such limitation. It is therefore necessary to specifically designate certain functions and activities performed by the state and municipal corporations and to provide that the state, municipal corporations, and their governmental employees shall not be liable for damages resulting from their acts or omissions in the performance or nonperformance of such functions or activities.

NEW SECTION. Sec. 2. A new section is added to chapter 4.24 RCW to read as follows:

No civil action may be maintained to recover damages for personal injury based on the design of any or all features of public highways, roads, streets, or sidewalks.

"Design" means plans for the creation, formation, development, change, or alteration of a highway facility.

"Design" shall not be construed to include repair, upkeep, sanding, or the placement or absence of warning signs.

Liability for placement or absence of warning devices or signs is limited to whether signs or devices warning of the condition were in accordance with the Manual of Uniform Traffic Control Devices for Streets and Highways (MUTCD) as adopted by the secretary of the state department of transportation or in accordance with rules and orders of the Washington utilities and transportation commission. Compliance with the warning sign provisions of the MUTCD or Washington utilities and transportation commission is a complete defense.

NEW SECTION. Sec. 3. A new section is added to chapter 4.92 RCW to read as follows:

Claims for damages against the state by reason of highways, roads, streets, or sidewalks, required to be filed by law, shall be filed within one hundred twenty days of the date of the accident or occurrence. The court may, for good cause, allow an action to proceed where the claim has not been timely filed if there is no prejudice to the defendant. Good cause may exist where it is shown the claimant was incapacitated during the time from presenting a claim or the claimant was a minor and there was no one who could act on behalf of the minor. Prejudice to the defendant shall be presumed if the claim is filed more than one year after the accident or occurrence or if the scene of the accident has changed, or material witnesses or evidence are no longer available.

If no action will lie against the state for failure to file a claim, no action may be commenced against state employees.

NEW SECTION. Sec. 4. A new section is added to chapter 4.96 RCW to read as follows:

Claims for damages against municipal corporations by reason of highways, roads, streets, or sidewalks, required to be filed by law, shall be filed within one hundred twenty days of the date of the accident or occurrence. The court may, for good cause, allow an action to proceed where the claim has not been timely filed if there is no prejudice to the defendant. Good cause may exist where it is shown the claimant was incapacitated during the time from presenting a claim or a minor and there was no one who was or could act on behalf of the minor. Prejudice to the defendant shall be presumed if the claim is filed more than one year after the accident or occurrence or if the scene of the accident has changed, or material witnesses or evidence are no longer available.

If no action will lie against the municipal corporation for failure to file a claim, no action may be commenced against its employees.

NEW SECTION. Sec. 5. A new section is added to chapter 5.44 RCW to read as follows:

In an action against the state, a municipal corporation, or their employees for damages from the operation or maintenance of highways, roads, streets, or sidewalks, evidence of measures taken after an accident, remedial or otherwise, is not admissible for any purpose.

Sec. 6. Section 43.10.100, chapter 8, Laws of 1965 as amended by section 42, chapter 75, Laws of 1977 and RCW 43.10.100 are each amended to read as follows:

The attorney general shall, by February 1st of each year, annually prepare and report to the governor and the legislature a concise statement of all matters pertaining to his official duties, making such suggestions for lessening the public expenses and promoting frugality in the public offices as he deems expedient and proper. The attorney general shall include in his report a comprehensive summary of all cases involving tort claims against the department of transportation involving highways which were concluded and closed in the previous calendar year. The report shall include for each case closed:

(1) A summary of the factual background of the case;

(2) Identification of the attorneys representing the state and the opposing parties;

(3) A synopsis of the legal theories asserted and the defenses presented;

(4) Whether the case was tried, settled, or dismissed, and in whose favor;

(5) The amount of any settlement or verdict reached, and the terms for payment;

(6) A summary of all settlement offers made by the parties where a verdict was returned against the state;

(7) The approximate number of attorney hours expended by the state on the case, together with the corresponding dollar amount billed therefore; and

(8) Such other matters relating to the case as the attorney general deems relevant or appropriate, especially including any comments or recommendations for changes in statute law or agency practice that might effectively reduce the exposure of the state to such tort claims.