BILL REQ. #:  S-0850.3 

Read first time 02/07/2003.   Referred to Committee on Judiciary.

     AN ACT Relating to civil liability reform; amending RCW 4.22.070, 4.22.015, 4.56.115, 4.56.110, 4.56.250, 7.70.070, 4.16.350, 7.70.080, 7.70.030, 7.70.060, 46.61.688, 4.92.090, and 4.96.010; adding a new section to chapter 4.24 RCW; adding a new section to chapter 4.28 RCW; adding a new section to chapter 7.04 RCW; adding a new section to chapter 7.70 RCW; adding a new section to chapter 4.16 RCW; adding new sections to chapter 43.20A RCW; adding new sections to chapter 72.09 RCW; creating new sections; and providing a contingent effective date.

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

Sec. 101   RCW 4.22.070 and 1993 c 496 s 1 are each amended to read as follows:
     (1) In all actions involving fault of more than one entity, the trier of fact shall determine the percentage of the total fault which is attributable to every entity which caused the claimant's damages except entities immune from liability to the claimant under Title 51 RCW. The sum of the percentages of the total fault attributed to at- fault entities shall equal one hundred percent. The entities whose fault shall be determined include the claimant or person suffering personal injury or incurring property damage, defendants, third-party defendants, entities ((released by)) who have entered into a release, covenant not to sue, covenant not to enforce judgment, or similar agreement with the claimant, entities with any other individual defense against the claimant, and entities immune from liability to the claimant, but shall not include those entities immune from liability to the claimant under Title 51 RCW. Judgment shall be entered against each defendant except those entities who have ((been released by)) entered into a release, covenant not to sue, covenant not to enforce judgment, or similar agreement with the claimant or are immune from liability to the claimant or have prevailed on any other individual defense against the claimant in an amount which represents that party's proportionate share of the claimant's total damages. The liability of each defendant shall be several only and shall not be joint except((:
     (a))) a party shall be responsible for the fault of another person or for payment of the proportionate share of another party where both were acting in concert or when a person was acting as an agent or servant of the party.
     (((b) If the trier of fact determines that the claimant or party suffering bodily injury or incurring property damages was not at fault, the defendants against whom judgment is entered shall be jointly and severally liable for the sum of their proportionate shares of the claimants [claimant's] total damages.))
     (2) If a defendant is jointly and severally liable under ((one of)) the exception((s)) listed in subsection((s)) (1)(((a) or (1)(b))) of this section, such defendant's rights to contribution against another jointly and severally liable defendant, and the effect of settlement by either such defendant, shall be determined under RCW 4.22.040, 4.22.050, and 4.22.060.
     (3)(a) Nothing in this section affects any cause of action relating to hazardous wastes or substances or solid waste disposal sites.
     (b) Nothing in this section shall affect a cause of action arising from the tortious interference with contracts or business relations.
     (c) Nothing in this section shall affect any cause of action arising from the manufacture or marketing of a fungible product in a generic form which contains no clearly identifiable shape, color, or marking.

Sec. 102   RCW 4.22.015 and 1981 c 27 s 9 are each amended to read as follows:
     "Fault" includes acts or omissions, including misuse of a product, that are in any measure negligent ((or)), reckless, or intentional toward the person or property of the actor or others, or that subject a person to strict tort liability or liability on a product liability claim. The term also includes breach of warranty, unreasonable assumption of risk, and unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault.
     A comparison of fault for any purpose under RCW 4.22.005 through 4.22.060 shall involve consideration of both the nature of the conduct of the parties to the action and the extent of the causal relation between such conduct and the damages.

NEW SECTION.  Sec. 201   The legislature finds that employers are becoming increasingly discouraged from disclosing job reference information. The legislature further finds that full disclosure of such information will increase productivity, enhance the safety of the workplace, and provide greater opportunities to disadvantaged groups who may not have the educational background or resumes of other workers.

NEW SECTION.  Sec. 202   A new section is added to chapter 4.24 RCW to read as follows:
     An employer who discloses information about a former or current employee's job performance, conduct, or other work-related information to a prospective employer, or employment agency as defined by RCW 49.60.040, at the specific request of that individual employer or employment agency, is presumed to be acting in good faith and is immune from civil liability for such disclosure or its consequences. For purposes of this section, the presumption of good faith may only be rebutted upon a showing by clear and convincing evidence that the information disclosed by the employer was knowingly false or deliberately misleading.

Sec. 301   RCW 4.56.115 and 1983 c 147 s 2 are each amended to read as follows:
     Judgments founded on the tortious conduct of the state of Washington or of the political subdivisions, municipal corporations, and quasi municipal corporations of the state, whether acting in their governmental or proprietary capacities, shall bear interest from the date of entry at two percentage points above the ((maximum rate permitted under RCW 19.52.020 on)) equivalent coupon issue yield (as published by the board of governors of the federal reserve system) of the average bill rate for twenty-six week treasury bills as determined at the first bill market auction conducted during the calendar month immediately preceding the date of entry thereof((: PROVIDED, That)). In any case where a court is directed on review to enter judgment on a verdict or in any case where a judgment entered on a verdict is wholly or partly affirmed on review, interest on the judgment or on that portion of the judgment affirmed shall date back to and shall accrue from the date the verdict was rendered.

Sec. 302   RCW 4.56.110 and 1989 c 360 s 19 are each amended to read as follows:
     Interest on judgments shall accrue as follows:
     (1) Judgments founded on written contracts, providing for the payment of interest until paid at a specified rate, shall bear interest at the rate specified in the contracts: PROVIDED, That said interest rate is set forth in the judgment.
     (2) All judgments for unpaid child support that have accrued under a superior court order or an order entered under the administrative procedure act shall bear interest at the rate of twelve percent.
     (3) Except as provided under subsections (1) and (2) of this section, judgments shall bear interest from the date of entry at two percentage points above the ((maximum rate permitted under RCW 19.52.020 on)) equivalent coupon issue yield (as published by the board of governors of the federal reserve system) of the average bill rate for twenty-six week treasury bills as determined at the first bill market auction conducted during the calendar month immediately preceding the date of entry thereof((: PROVIDED, That)). In any case where a court is directed on review to enter judgment on a verdict or in any case where a judgment entered on a verdict is wholly or partly affirmed on review, interest on the judgment or on that portion of the judgment affirmed shall date back to and shall accrue from the date the verdict was rendered.

Sec. 401   RCW 4.56.250 and 1986 c 305 s 301 are each amended to read as follows:
     (1) As used in this section, the following terms have the meanings indicated unless the context clearly requires otherwise.
     (a) "Economic damages" means objectively verifiable monetary losses, including medical expenses, loss of earnings, burial costs, loss of use of property, cost of replacement or repair, cost of obtaining substitute domestic services, loss of employment, and loss of business or employment opportunities.
     (b) "Noneconomic damages" means subjective, nonmonetary losses, including, but not limited to pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation, and destruction of the parent-child relationship.
     (c) "Bodily injury" means physical injury, sickness, or disease, including death.
     (d) "Average annual wage" means the average annual wage in the state of Washington as determined under RCW 50.04.355.
     (2) In ((no action seeking damages for personal injury or death may a claimant recover a judgment for noneconomic damages exceeding an amount determined by multiplying 0.43 by the average annual wage and by the life expectancy of the person incurring noneconomic damages, as the life expectancy is determined by the life expectancy tables adopted by the insurance commissioner. For purposes of determining the maximum amount allowable for noneconomic damages, a claimant's life expectancy shall not be less than fifteen years. The limitation contained in this subsection applies to all claims for noneconomic damages made by a claimant who incurred bodily injury. Claims for loss of consortium, loss of society and companionship, destruction of the parent-child relationship, and all other derivative claims asserted by persons who did not sustain bodily injury are to be included within the limitation on claims for noneconomic damages arising from the same bodily injury.
     (3) If a case is tried to a jury, the jury shall not be informed of the limitation contained in subsection (2) of this section)) an action or arbitration for damages for injury occurring as a result of health care, the injured plaintiff may not recover noneconomic damages exceeding two hundred fifty thousand dollars.

Sec. 402   RCW 7.70.070 and 1975-'76 2nd ex.s. c 56 s 12 are each amended to read as follows:
     (1) Except as set forth in subsection (2) of this section, the court shall, in any action under this chapter, determine the reasonableness of each party's attorneys' fees. The court shall take into consideration the following:
     (((1))) (a) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
     (((2))) (b) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
     (((3))) (c) The fee customarily charged in the locality for similar legal services;
     (((4))) (d) The amount involved and the results obtained;
     (((5))) (e) The time limitations imposed by the client or by the circumstances;
     (((6))) (f) The nature and length of the professional relationship with the client;
     (((7))) (g) The experience, reputation, and ability of the lawyer or lawyers performing the services;
     (((8))) (h) Whether the fee is fixed or contingent.
     (2)(a) An attorney may not contract for or collect a contingency fee for representing a person in connection with an action for damages against a health care provider based upon professional negligence in excess of the following limits:
     (i) Forty percent of the first fifty thousand dollars recovered;
     (ii) Thirty-three and one-third percent of the next fifty thousand dollars recovered;
     (iii) Twenty-five percent of the next five hundred thousand dollars recovered;
     (iv) Fifteen percent of any amount in which the recovery exceeds six hundred thousand dollars.
     (b) The limitations in this section apply regardless of whether the recovery is by judgment, settlement, arbitration, mediation, or other form of alternative dispute resolution.
     (c) If periodic payments are awarded to the plaintiff, the court shall place a total value on these payments and include this amount in computing the total award from which attorneys' fees are calculated under this subsection.
     (d) For purposes of this subsection, "recovered" means the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the claim. Costs of medical care incurred by the plaintiff and the attorneys' office overhead costs or charges are not deductible disbursements or costs for such purposes.
     (3) This section applies to all agreements for attorneys' fees entered into or modified after the effective date of this section, and to all attorney fee agreements relating to causes of action filed on or after the effective date of this section.

NEW SECTION.  Sec. 403   A new section is added to chapter 4.28 RCW to read as follows:
     (1) No action based upon a health care provider's professional negligence may be commenced unless the defendant has been given at least ninety days' notice of the intention to commence the action. If the notice is served within ninety days of the expiration of the applicable statute of limitations, the time for the commencement of the action must be extended ninety days from the service of the notice.
     (2) The provisions of this section are not applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name.
     (3) Failure to comply with this section does not invalidate any proceedings of any court of this state, nor does it affect the jurisdiction of the court to render a judgment therein. However, failure by an attorney at law to comply with the provisions of this section is grounds for professional discipline and the Washington state bar association shall investigate and take appropriate action in any such cases brought to its attention.

Sec. 404   RCW 4.16.350 and 1998 c 147 s 1 are each amended to read as follows:
     Any civil action for damages for injury occurring as a result of health care which is provided after June 25, 1976 against:
     (1) A person licensed by this state to provide health care or related services, including, but not limited to, a physician, osteopathic physician, dentist, nurse, optometrist, podiatric physician and surgeon, chiropractor, physical therapist, psychologist, pharmacist, optician, physician's assistant, osteopathic physician's assistant, nurse practitioner, or physician's trained mobile intensive care paramedic, including, in the event such person is deceased, his estate or personal representative;
     (2) An employee or agent of a person described in subsection (1) of this section, acting in the course and scope of his or her employment, including, in the event such employee or agent is deceased, his or her estate or personal representative; or
     (3) An entity, whether or not incorporated, facility, or institution employing one or more persons described in subsection (1) of this section, including, but not limited to, a hospital, clinic, health maintenance organization, or nursing home; or an officer, director, employee, or agent thereof acting in the course and scope of his or her employment, including, in the event such officer, director, employee, or agent is deceased, his or her estate or personal representative;
based upon alleged professional negligence shall be commenced within three years of the act or omission alleged to have caused the injury or condition, or one year of the time the patient or his or her representative discovered or reasonably should have discovered that the injury or condition was caused by said act or omission, whichever ((period expires later, except that)) occurs first. In no event shall an action be commenced more than ((eight)) three years after said act or omission: PROVIDED, That the time for commencement of an action is tolled upon proof of fraud, intentional concealment, or the presence of a foreign body not intended to have a therapeutic or diagnostic purpose or effect, until the date the patient or the patient's representative has actual knowledge of the act of fraud or concealment, or of the presence of the foreign body; the patient or the patient's representative has one year from the date of the actual knowledge in which to commence a civil action for damages.
     For purposes of this section, notwithstanding RCW 4.16.190, the knowledge of a custodial parent or guardian shall be imputed to a person under the age of eighteen years, and such imputed knowledge shall operate to bar the claim of such minor to the same extent that the claim of an adult would be barred under this section. Any action not commenced in accordance with this section shall be barred.
     For purposes of this section, with respect to care provided after June 25, 1976, and before August 1, 1986, the knowledge of a custodial parent or guardian shall be imputed as of April 29, 1987, to persons under the age of eighteen years.
     This section does not apply to a civil action based on intentional conduct brought against those individuals or entities specified in this section by a person for recovery of damages for injury occurring as a result of childhood sexual abuse as defined in RCW 4.16.340(5).

Sec. 405   RCW 7.70.080 and 1975-'76 2nd ex.s. c 56 s 13 are each amended to read as follows:
     (1) Any party may present evidence to the trier of fact that the patient has already been compensated for the injury complained of from ((any source except the assets of the patient, his representative, or his immediate family, or insurance purchased with such assets. In the event such evidence is admitted, the plaintiff may present evidence of an obligation to repay such compensation. Insurance bargained for or provided on behalf of an employee shall be considered insurance purchased with the assets of the employee)) a collateral source. In the event the evidence is admitted, the other party may present evidence of any amount that was paid or contributed to secure the right to any compensation. Compensation as used in this section shall mean payment of money or other property to or on behalf of the patient, rendering of services to the patient free of charge to the patient, or indemnification of expenses incurred by or on behalf of the patient. Notwithstanding this section, evidence of compensation by a defendant health care provider may be offered only by that provider.
     (2) Unless otherwise provided by statute, there is no right of subrogation or reimbursement from a plaintiff's tort recovery with respect to compensation covered in subsection (1) of this section.

Sec. 406   RCW 7.70.030 and 1975-'76 2nd ex.s. c 56 s 8 are each amended to read as follows:
     No award shall be made in any action or arbitration for damages for injury occurring as the result of health care which is provided after June 25, 1976, unless the plaintiff establishes one or more of the following propositions:
     (1) That injury resulted from the failure of a health care provider to follow the accepted standard of care;
     (2) That a health care provider promised the patient or his representative that the injury suffered would not occur;
     (3) That injury resulted from health care to which the patient or his or her representative did not consent.
     Unless otherwise provided in this chapter, the plaintiff shall have the burden of proving each fact essential to an award by ((a preponderance of the)) clear, cogent, and convincing evidence.

Sec. 407   RCW 7.70.060 and 1975-'76 2nd ex.s. c 56 s 11 are each amended to read as follows:
     If a patient while legally competent, or his or her representative if he or she is not competent, signs a consent form which sets forth the following, the signed consent form shall constitute prima facie evidence that the patient gave his or her informed consent to the treatment administered and the patient has the burden of rebutting this by ((a preponderance of the)) clear, cogent, and convincing evidence:
     (1) A description, in language the patient could reasonably be expected to understand, of:
     (a) The nature and character of the proposed treatment;
     (b) The anticipated results of the proposed treatment;
     (c) The recognized possible alternative forms of treatment; and
     (d) The recognized serious possible risks, complications, and anticipated benefits involved in the treatment and in the recognized possible alternative forms of treatment, including nontreatment;
     (2) Or as an alternative, a statement that the patient elects not to be informed of the elements set forth in subsection (1) of this section.
     Failure to use a form shall not be admissible as evidence of failure to obtain informed consent.

NEW SECTION.  Sec. 408   A new section is added to chapter 7.04 RCW to read as follows:
     A contract for health care services that contains a provision for arbitration of any dispute as to professional negligence may not be a contract of adhesion, nor unconscionable, nor otherwise improper.

NEW SECTION.  Sec. 409   A new section is added to chapter 7.70 RCW to read as follows:
     (1) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.
     (a) "Future damages" includes damages for future medical treatment, care or custody, loss of future earnings, loss of bodily function, or future pain and suffering of the judgment creditor.
     (b) "Periodic payments" means the payment of money or delivery of other property to the judgment creditor at regular intervals.
     (2) In any action for damages for injury occurring as a result of health care, the court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments rather than by a lump-sum payment if the award equals or exceeds fifty thousand dollars in future damages. In entering a judgment ordering the payment of future damages by periodic payments, the court shall make a specific finding as to the dollar amount of periodic payments which will compensate the judgment creditor for such future damages. As a condition to authorizing periodic payments of future damages, the court shall require the judgment debtor who is not adequately insured to post security adequate to ensure full payment of such damages awarded by the judgment. Upon termination of periodic payments of future damages, the court shall order the return of this security, or so much as remains, to the judgment debtor.
     (3)(a) The judgment ordering the payment of future damages by periodic payments must specify the recipient or recipients of the payments, the dollar amount of the payments, the interval between payments, and the number of payments or the period of time over which payments must be made. The payments are only subject to modification in the event of the death of the judgment creditor.
     (b) In the event that the court finds that the judgment debtor has exhibited a continuing pattern of failing to make the payments, as specified in (a) of this subsection, the court shall find the judgment debtor in contempt of court and, in addition to the required periodic payments, shall order the judgment debtor to pay the judgment creditor all damages caused by the failure to make such periodic payments, including court costs and attorneys' fees.
     (4) However, money damages awarded for loss of future earnings may not be reduced or payments terminated by reason of the death of the judgment creditor, but must be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately prior to his or her death. In such cases the court that rendered the original judgment, may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages in accordance with this subsection (4).
     (5) Following the occurrence or expiration of all obligations specified in the periodic payment judgment, any obligation of the judgment debtor to make further payments ceases and any security given under subsection (2) of this section reverts to the judgment debtor.
     (6) For purposes of this section, the provisions of RCW 4.56.250 do not apply.

NEW SECTION.  Sec. 410   Section 401 of this act takes effect only if Senate Joint Resolution No. 8207 is approved by the electorate at the next general election held in this state.

NEW SECTION.  Sec. 501   A new section is added to chapter 4.16 RCW to read as follows:
     Persons engaged in any activity defined in RCW 4.16.300 may be excused, in whole or in part, from any obligation, damage, loss, or liability for those defined activities under the principles of comparative fault for the following affirmative defenses:
     (1) To the extent it is caused by an unforeseen act of nature that caused, prevented, or precluded the activities defined in RCW 4.16.300 from meeting the applicable building codes, regulations, and ordinances in effect at the commencement of construction. For purposes of this section an "unforeseen act of nature" means any weather condition, earthquake, or manmade event such as war, terrorism, or vandalism;
     (2) To the extent it is caused by a homeowner's unreasonable failure to minimize or prevent those damages in a timely manner, including the failure of the homeowner to allow reasonable and timely access for inspections and repairs under this section. This includes the failure to give timely notice to the builder after discovery of a violation, but does not include damages due to the untimely or inadequate response of a builder to the homeowner's claim;
     (3) To the extent it is caused by the homeowner or his or her agent, employee, subcontractor, independent contractor, or consultant by virtue of their failure to follow the builder's or manufacturer's maintenance recommendations, or commonly accepted homeowner maintenance obligations. In order to rely upon this defense as it relates to a builder's recommended maintenance schedule, the builder shall show that the homeowner had written notice of these schedules and recommendations and that the recommendations and schedules were reasonable at the time they were issued;
     (4) To the extent it is caused by the homeowner or his or her agent's or an independent third party's alterations, ordinary wear and tear, misuse, abuse, or neglect, or by the structure's use for something other than its intended purpose;
     (5) To the extent that a cause of action does not accrue within the statute of repose pursuant to RCW 4.16.310 or that an actionable cause as set forth in RCW 4.16.300 is not filed within the applicable statute of limitations. In contract actions the applicable statute of limitation commences, regardless of discovery, within six years after substantial completion of construction, or during the period within six years after the termination of the services enumerated in RCW 4.16.300, whichever is later;
     (6) As to a particular violation for which the builder has obtained a valid release;
     (7) To the extent that the builder's repair corrected the alleged violation or defect;
     (8) As to any causes of action to which this section does not apply, all applicable affirmative defenses are preserved.

Sec. 601   RCW 46.61.688 and 2002 c 328 s 2 are each amended to read as follows:
     (1) For the purposes of this section, the term "motor vehicle" includes:
     (a) "Buses," meaning motor vehicles with motive power, except trailers, designed to carry more than ten passengers;
     (b) "Multipurpose passenger vehicles," meaning motor vehicles with motive power, except trailers, designed to carry ten persons or less that are constructed either on a truck chassis or with special features for occasional off-road operation;
     (c) "Passenger cars," meaning motor vehicles with motive power, except multipurpose passenger vehicles, motorcycles, or trailers, designed for carrying ten passengers or less; and
     (d) "Trucks," meaning motor vehicles with motive power, except trailers, designed primarily for the transportation of property.
     (2) This section only applies to motor vehicles that meet the manual seat belt safety standards as set forth in federal motor vehicle safety standard 208. This section does not apply to a vehicle occupant for whom no safety belt is available when all designated seating positions as required by federal motor vehicle safety standard 208 are occupied.
     (3) Every person sixteen years of age or older operating or riding in a motor vehicle shall wear the safety belt assembly in a properly adjusted and securely fastened manner.
     (4) No person may operate a motor vehicle unless all child passengers under the age of sixteen years are either: (a) Wearing a safety belt assembly or (b) are securely fastened into an approved child restraint device.
     (5) A person violating this section shall be issued a notice of traffic infraction under chapter 46.63 RCW. A finding that a person has committed a traffic infraction under this section shall be contained in the driver's abstract but shall not be available to insurance companies or employers.
     (6) ((Failure to comply with the requirements of this section does not constitute negligence, nor may failure to wear a safety belt assembly be admissible as evidence of negligence in any civil action.
     (7))) This section does not apply to an operator or passenger who possesses written verification from a licensed physician that the operator or passenger is unable to wear a safety belt for physical or medical reasons.
     (((8))) (7) The state patrol may adopt rules exempting operators or occupants of farm vehicles, construction equipment, and vehicles that are required to make frequent stops from the requirement of wearing safety belts.

NEW SECTION.  Sec. 701   A new section is added to chapter 43.20A RCW to read as follows:
     In an effort to protect the public health, safety, and welfare, the legislature has authorized and funded programs addressing child and elderly abuse and neglect and criminal offenders. The work undertaken by state employees and agents to deliver these important services requires them to make decisions based upon circumstantial evidence and measurable risk of harm associated with the available competing choices.
     The legislature is obligated for policy reasons and fiscal responsibility to assure the state is accountable under fair and reasonable standards of negligence. The state cannot guarantee the safety of its citizens, particularly in cases of harm involving the criminal conduct of others. The legislature expects state workers to perform this difficult work nonnegligently, and does not intend to immunize the state for negligence. However, the legislature finds that the citizens of this state should not be liable when the state worker exercises reasonable care.

NEW SECTION.  Sec. 702   A new section is added to chapter 43.20A RCW to read as follows:
     The state or a person, individually or in a representative capacity for the state, who is involved in the delivery of social and health services through the department of social and health services, is not liable for selecting one of two or more alternative courses of action even though the course of action chosen results in a poor outcome if the person exercised reasonable care and skill in arriving at the judgment to follow the particular course of action.

NEW SECTION.  Sec. 703   A new section is added to chapter 72.09 RCW to read as follows:
     In an effort to protect the public health, safety, and welfare, the legislature has authorized and funded programs addressing child and elderly abuse and neglect and criminal offenders. The work undertaken by state employees and agents to deliver these important services requires them to make decisions based upon circumstantial evidence and measurable risk of harm associated with the available competing choices.
     The legislature is obligated for policy reasons and fiscal responsibility to assure the state is accountable under fair and reasonable standards of negligence. The state cannot guarantee the safety of its citizens, particularly in cases of harm involving the criminal conduct of others. The legislature expects state workers to perform this difficult work nonnegligently, and does not intend to immunize the state for negligence. However, the legislature finds that the citizens of this state should not be liable when the state worker exercises reasonable care.

NEW SECTION.  Sec. 704   A new section is added to chapter 72.09 RCW to read as follows:
     The state or a person, individually or in a representative capacity for the state, who is involved in the delivery of services through the department of corrections, is not liable for selecting one of two or more alternative courses of action even though the course of action chosen results in a poor outcome if the person exercised reasonable care and skill in arriving at the judgment to follow the particular course of action.

NEW SECTION.  Sec. 705   Nothing in sections 701 through 704 of this act may be construed to limit the application of other statutes specifying a liability standard for the state's employees and agents.

Sec. 706   RCW 4.92.090 and 1963 c 159 s 2 are each amended to read as follows:
     The state of Washington, ((whether)) while acting in its ((governmental or)) proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation. While acting in its governmental capacity, the state is liable only to the extent that the actions or omissions of its officers, employees, or agents constitute gross negligence. For purposes of this section, "gross negligence" means the failure to exercise slight care. "Governmental capacity" includes, but is not limited to, the supervision of offenders, protection of vulnerable citizens, fire fighting, police activities, and highway design and construction.

Sec. 707   RCW 4.96.010 and 2001 c 119 s 1 are each amended to read as follows:
     (1) All local governmental entities, ((whether)) acting in a ((governmental or)) proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation. While acting in its governmental capacity, local governmental entities are liable only to the extent that the actions or omissions of its officers, employees, or agents constitute gross negligence. "Governmental capacity" includes, but is not limited to, the supervision of offenders, protection of vulnerable citizens, fire fighting, police activities, and highway design and construction. Filing a claim for damages within the time allowed by law shall be a condition precedent to the commencement of any action claiming damages. The laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory.
     (2) Unless the context clearly requires otherwise, for the purposes of this chapter, "local governmental entity" means a county, city, town, special district, municipal corporation as defined in RCW 39.50.010, quasi-municipal corporation, or public hospital.
     (3) For the purposes of this chapter, "volunteer" is defined according to RCW 51.12.035.
     (4) For purposes of this chapter, "gross negligence" means the failure to exercise slight care.

NEW SECTION.  Sec. 801   Part headings used in this act are not any part of the law.

NEW SECTION.  Sec. 802   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.