SENATE BILL REPORT

SHB 98

BYHouse Committee on Judiciary (originally sponsored by Representatives Niemi, Padden, Crane and Dellwo; by request of Washington State Military Department)

Revising state liability for injuries or damages resulting from national guard activities.

House Committe on Judiciary

Senate Committee on Judiciary

Senate Hearing Date(s):March 10, 1987; March 12, 1987

Majority Report:  Do pass.

      Signed by Senators Talmadge, Chairman; McCaslin, Moore, Nelson, Newhouse.

Senate Staff:Dick Armstrong (786-7460)

                  March 12, 1987

AS REPORTED BY COMMITTEE ON JUDICIARY, MARCH 12, 1987

BACKGROUND:

Federal law provides that a member of the armed services of the United States injured or killed while on active duty may only be compensated from the federal government under its statutory compensation provisions.  Feres v. United States, 340 U.S. 135.

Washington has similar provisions for members of the Washington National Guard.  If a guardsman is injured or killed while on state active duty, his or her ability to recover is limited to statutory compensation provisions.

Additionally, if a guardsman is injured by a member of the armed services, the exclusive remedy is the statutory compensation.

There is one set of circumstances not covered by current statutes which occurred in Emsley v. Army National Guard.  In that case, the state of Washington was held liable for damages when a state guardsman injured members of the federal armed services.  While a member of the federal armed services is compensated under federal law, the Washington Supreme Court has held that Washington State is liable for civil damages in the same way a private individual would be held liable.

The federal government treats members of the militia as federal employees when the National Guard is engaged in training or on national duty.  Under the Federal Tort Claims Act, the federal government accepts liability for the negligent acts of federal employees.

SUMMARY:

The Washington National Guard is immune from suit for damages for injuries caused by members of the militia when the members of the guard are considered federal employees under the Federal Tort Claims Act.

Fiscal Note:      none requested

Effective Date:The bill contains an emergency clause and takes effect immediately.

Senate Committee - Testified: Kevin Ryan, National Guard; Keith Eggen, National Guard