AN ACT Relating to public hazards; adding a new chapter to Title 19 RCW; adding new sections to chapter 4.24 RCW; and prescribing penalties.

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

NEW SECTION. Sec. 1. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Serious bodily injury" means an impairment of physical or mental condition, including physical pain, a substantial risk of death or serious permanent disfigurement, unconsciousness, extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ.

(2) "Serious danger" means, when used with respect to a product or business practice, that the normal or reasonably foreseeable use of, or the exposure of human beings to, such product, practice, or service will cause death or serious bodily injury to an individual.

(3) "Warn or notify" means, when used with respect to employees, the public, or the community, to give sufficient description of the danger to all individuals working for an employer, persons likely to use a product or service, and persons likely to be in the proximity of the serious danger.

(4) "Public hazard" means an instrument or a device, or a condition of an instrument or device, that has caused or may reasonably cause serious bodily injury or serious danger to more than one individual.

NEW SECTION. Sec. 2. (1) It shall be unlawful for any person to intentionally, knowingly, or recklessly conceal or fail to properly warn or notify employees or the public of a public hazard or product or process that may cause death, serious danger, or serious bodily injury.

(2) It shall be unlawful for any person to intentionally, knowingly, or recklessly endanger the public or create a public hazard.

(3) It shall be unlawful for any person to destroy or falsify documents or to allow the destruction of documents pertaining to hazards to the public, employees, or agents.

(4) Every person violating this section is guilty of a gross misdemeanor and shall incur the penalties for gross misdemeanors set forth in chapter 9A.20 RCW.

NEW SECTION. Sec. 3. Any employer that settles a claim or is determined by court order or administrative order to be responsible for a claim involving public health and safety shall make available to the department of labor and industries any material contained in sealed records that could be useful in preventing the endangerment of the public at large.

NEW SECTION. Sec. 4. Any property or casualty insurance company incorporated or doing business in Washington state shall identify and make available to the public, relative to each claim settled or resolved in favor of a claimant, all of the following:

(1) The public hazard or unsafe condition that resulted in the claim;

(2) The make and model of the product or service that served as host for the hazard, by category to assure accurate identification;

(3) The hazardous material, substance, or service by both brand and generic name and any offending chemical content that could cause harm.

This information and annual summaries of all death or injury-related occurrences shall be transmitted to the insurance commissioner on or before May 1 of the following year.

NEW SECTION. Sec. 5. Any person has standing to bring a claim in a state court of appropriate jurisdiction or before an administrative tribunal challenging any act or conduct of a person that threatens to cause or is causing a public hazard.

NEW SECTION. Sec. 6. The court may grant such relief as it deems appropriate and shall award reasonable costs of litigation, including reasonable attorneys' fees, if: (1) A party substantially prevails in a court of final jurisdiction; (2) the court determines that such action served an important public purpose; (3) either party can demonstrate that its economic interest is small in comparison to its costs of effective participation; or (4) either party can demonstrate that it lacks sufficient resources to participate in the action absent the award.

NEW SECTION. Sec. 7. Any portion of an agreement or contract that has as its purpose or effect the concealment of a public hazard is void and may not be enforced.

NEW SECTION. Sec. 8. (1) Except as provided in subsection (3) of this section, in an action under this chapter, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.

(2) A protective order issued to prevent disclosure of materials or information related to a personal injury action or action for wrongful death produced in discovery in any cause shall not prohibit an attorney from voluntarily sharing such materials or information with an attorney involved in a similar or related matter, with the permission of the court, after notice and an opportunity to be heard to any party or person protected by the protective order, and provided the attorney who receives the material or information agrees, in writing, to be bound by the terms of the protective order.

(3) A court may not enter an order under this section that has as its purpose or effect the concealment of a public hazard.

NEW SECTION. Sec. 9. (1) Any person has standing to contest an order that violates section 8 of this act.

(2) A person may contest an order that violates section 8 of this act by:

(a) Making a motion in the court that entered the order; or

(b) Bringing suit in a court having jurisdiction.

NEW SECTION. Sec. 10. Sections 1 through 9 of this act shall constitute a new chapter in Title 19 RCW.

NEW SECTION. Sec. 11. (1) In an action for the breach of an obligation whether arising from negligence, strict liability, contract, statute, or otherwise, where the defendant has been guilty of oppression, fraud, bad faith, or malice, the plaintiff, in addition to actual damages, may recover exemplary damages from the defendant.

(2) An employer shall not be liable for damages pursuant to subsection (1) of this section, based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee, employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded, or was personally guilty of oppression, fraud, bad faith, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification, or act of oppression, fraud, bad faith, or malice must be on the part of an officer, director, or managing agent of the corporation.

(3) As used in this section, the following definitions shall apply:

(a) "Malice" means conduct that is intended by the defendant to cause injury to the plaintiff or conduct which is carried on by the defendant in bad faith or with a conscious, reckless, or willful disregard of the rights or safety of others.

(b) "Oppression" means subjecting a person to cruel and unjust hardship in conscious disregard of that person's rights.

(c) "Bad faith" is the opposite of good faith and means dishonesty, or actual or constructive fraud, or a design to mislead or deceive another, breach of fiduciary duty, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's duties, but by some interested or sinister motive.

(d) "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

NEW SECTION. Sec. 12. When a person having a cause of action for exemplary damages dies before judgment is entered, the cause of action shall survive his or her death in accordance with chapter 4.20 RCW, and the damages recoverable by his or her personal representative shall include any penalties or exemplary damages that the decedent would have been entitled to recover had he or she lived.

NEW SECTION. Sec. 13. (1) In a trial of a claim involving a request for exemplary damages, the court shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating all of the following:

(a) Whether, by a preponderance of the evidence, the conduct of the defendant from which the claim arose constituted oppression, fraud, bad faith, or malice; and

(b) Whether the conduct of the defendant was directed specifically at the plaintiff, or at the person from which the plaintiff's claim is derived.

(2) An award for exemplary damages shall not be made unless the answer or finding pursuant to subsection (1)(a) of this section is affirmative. If such answer or finding is affirmative, the jury, or court if there is no jury, shall fix the amount of exemplary damages to be awarded, and such damages shall be ordered paid as follows:

(a) If the answer or finding pursuant to subsection (1)(b) of this section is affirmative, the full amount of the exemplary damages awarded shall be paid to the plaintiff.

(b) If the answer or finding pursuant to subsection (1)(b) of this section is negative, after payment of all applicable costs and attorneys' fees, an award not to exceed fifty percent of the exemplary damages shall be ordered paid to the plaintiff, with the remainder of the exemplary damages to be ordered paid into the fund for compensation of crime victims, established by RCW 7.68.090.

(3) The mere allegation or assertion of a claim for exemplary damages shall not form the basis for discovery of the wealth or ability to respond in damages on behalf of the party from whom exemplary damages are claimed until such time as the plaintiff has established that sufficient admissible evidence exists to support a prima facie case establishing the requirements of subsection (1)(a) of this section.

NEW SECTION. Sec. 14. Sections 11 through 13 of this act are each added to chapter 4.24 RCW.