Forty years ago, on May 18, 1980, Washington’s once-conical Mount St. Helens erupted, killing approximately 57 people, and causing millions, if not billions, in damages. Writers in both the Seattle Times[1] and the New York Times[2] recently have argued that tensions between science, politics, and economics that came to the fore with the Mount St. Helens eruption teach something pertinent to the policy-making challenges presented by a pandemic.
That may be true, but it is above our pay grade. Our more limited point today is that governmental policymakers should be immune from liability in tort for their policy judgments in response to a natural disaster – like Mount St. Helens, or like a pandemic.
In general, in Washington, the “protected act of governing” is immune from liability in tort.[3] Applicability of this “discretionary governmental immunity” doctrine is “limited to high-level discretionary acts exercised at a truly executive level.”[4]
The Mount St. Helens eruption produced cases confirming the discretion vested in government actors trying to cope with natural disaster. Geologists saw it coming, and prior to the eruption, Governor Dixy Lee Ray[5] imposed a restricted “red zone” around Mount St. Helens.[6] As the articles in the Seattle and New York Times point out, the government had to weigh scientific, economic, and political concerns in doing so.
The “red zone” both (a) damaged local businesses, and (b) failed to prevent the deaths. Litigation ensued. Business owners claimed that they were damaged because the red zone was too onerous (just as today’s businesses might try to challenge various stay-at-home orders in tort). The personal representatives of some of the persons killed claimed that the State had not done enough to protect their decedents.
The Washington Supreme Court held that discretionary immunity barred the business owners’ claim in Cougar Business Owners Association v. State,[7] and the Washington Court of Appeals reached essentially the same result in Karr v. State[8] as to claims brought by the personal representatives of persons killed.
Tort claims and discretionary immunity are not the end of this story; there will of course be litigation of many other issues pertaining to governmental measures in response to the current pandemic. But the lesson of Mount St. Helens is that governmental actors should not be liable in tort for discretionary policy choices made in response to an emergency.
[1] https://www.seattletimes.com/opinion/mount-st-helens-ominous-lessons-for-the-age-of-coronavirus/
[2] https://www.nytimes.com/2020/05/17/opinion/mount-st-helens-coronavirus.html
[3] McCluskey v. Handorff-Sherman, 125 Wn.2d 1 (1994).
[4] Id.; see also, Bender v. Seattle, 99 Wash.2d 582, 588 (1983). The classic and complete test for discretionary governmental immunity is stated in Evangelical United Brethren Church v. State, 67 Wn.2d 246, 252 – 53 (1965).
[5] Governor Ray not only had a beautiful name; she also was a serious scientist with a compelling story, see generally, https://en.wikipedia.org/wiki/Dixy_Lee_Ray.
[6] And on the subject of names, in 1792, Captain George Vancouver re-named the mountain that the Native Americans called Loowit (“smoking mountain”). Vancouver gave Loowit the name Mount St. Helens after Alleyne Fitzherbert, the then-British Ambassador to Spain, who held the title Baron St. Helens (of a village and parish on the Isle of Wight).
[7] 97 Wn.2d 466 (1982).
[8] 53 Wn. App. 1 (1988).
David Bruce
Dave’s 30 years of litigating in both the public sector and in private practice have allowed him to handle nearly every type of case, and his 20 years of experience in representing public entities have given him a unique ability to defend government entities and managers against all manner of challenges. His record of success both in trial and on appeal demonstrates his ability to identify and communicate his client’s winning argument.