[Nos. 79222-4; 79381-6. En Banc.]
Argued June 26, 2007. Decided December 13, 2007.
[1] Pensions Police and Fire fighters Action Against Employer Negligence Right of Action In General. Under RCW 41.26.281, law enforcement officers and fire fighters eligible for retirement system Plan II benefits under chapter 41.26 RCW have the right to maintain negligence actions against their employers for work-related injuries even when those injuries are covered by the Industrial Insurance Act (Title [2] Statutes Construction Question of Law or Fact Review Standard of Review. Statutory construction is a question of law that is reviewed de novo. [3] Municipal Corporations Sovereign Immunity Source. A municipality derives its sovereign immunity from the State. [4] Municipal Corporations Sovereign Immunity Abolition Authority. The abolition of a municipality's sovereign immunity is a matter within the province of the legislature. [5] Municipal Corporations Sovereign Immunity Abolition Negligence Liability Relationship to Private Party Liability. RCW 4.96.010, which generally waives a municipality's sovereign immunity with respect to damages arising out of the municipality's tortious conduct "to the same extent as if [it] were a private person or corporation," was not intended to impose new, general public duties upon municipalities. Further, RCW 4.96.010 does not state that parties may sue governmental entities only to the same extent as a private party may be liable. Rather, the statute merely notes that municipalities may not be liable for breaches of duties not generally existing for private entities or corporations. [6] Pensions Police and Fire fighters Action Against Employer Negligence Right of Action Sovereign Immunity Waiver. RCW 4.96.010 waives a municipality's sovereign immunity from claims brought under RCW 41.26.281, under which law enforcement officers and fire fighters eligible for the Law Enforcement Officers' and Fire Fighters' Retirement System Plan II benefits under chapter 41.26 RCW have the right to maintain negligence actions against their employers for work-related injuries even when those injuries are covered by the Industrial Insurance Act (Title [7] Constitutional Law Construction Plain Language Reasonable Interpretation. When interpreting a constitutional provision, a court looks first to the plain language of the text of the provision and will accord the text its reasonable interpretation. If the text of the provision is clear, then no construction or interpretation is necessary. [8] Municipal Corporations Constitutional Law Privileges and Immunities Municipalities. A municipality does not have any rights or standing to bring a claim on its own behalf under the privileges and immunities clause of Const. art. I, § 12. [9] Judgment Summary Judgment Review Standard of Review. An appellate court reviews a summary judgment de novo, engaging in the same inquiry as the trial court under CR 56(c). [10] Pensions Police and Fire Fighters Action Against Employer "Fire Fighter" What Constitutes Trainee Fire Fighter. A person who is employed as an "entry level fire fighter" after passing a civil service examination for fire fighters, is informed that he or she is enrolled in the Law Enforcement Officers' and Fire Fighters' Retirement System Plan II under chapter 41.26 RCW, and is undergoing recruit training constitutes a "fire fighter" under the definitions set forth in RCW 41.26.030(4)(a) and WAC 415-104-225(2)(a) and is entitled under RCW 41.26.281 to maintain a negligence action against his or her employer for work-related injuries even when those injuries are covered by the Industrial Insurance Act (Title [11] Trial Instructions Incorrect Statement of Law Burden of Proof Harmless Error Stipulation. Improperly allocating the burden of proof when instructing the jury constitutes harmless error where the parties stipulate to the fact to which the burden of proof pertains. [12] New Trial Review Standard of Review. A trial court's denial of a motion for a new trial is reviewed for an abuse of discretion. [13] Damages Review Reduction Standard of Review. A trial court's denial of remittitur of a jury's award of damages is reviewed for an abuse of discretion. A trial court does not abuse its discretion in this context unless the jury award is contrary to the evidence. An appellate court examines the trial court record to determine whether evidence supports the jury's damages award. Courts are reluctant to interfere with a jury's damages award when fairly made. Nature of Action: A trainee fire fighter sought damages from his municipal employer for personal injuries sustained during a fire fighter training exercise. In a separate action, the personal representative of the estate of a police officer who died during a training exercise sought damages from the same municipal employer for wrongful death. Both actions were brought pursuant to a statutory provision granting law enforcement officers and fire fighters eligible for retirement system Plan II benefits under chapter 41.26 RCW the right to maintain negligence actions against their employers for work-related injuries even when those injuries are covered by the Industrial Insurance Act (Title Superior Court: In the trainee fire fighter's negligence action, the Superior Court for King County, No. 02-2-07237-2. Michael S. Spearman, J., on October 12, 2004, entered a judgment in favor of the plaintiff on a verdict finding the defendant 90 percent at fault. In the wrongful death action, the Superior Court for King County, No. 05-2-05740-8, Mary Yu, J., on January 9, 2006, entered an order denying the defendant's motion for summary judgment. Court of Appeals: At 133 Wn. App. 696 (2006), the court affirmed the judgment in the trainee fire fighter's negligence action, holding that the municipal employer is not immune from liability, that the statute granting the right of action is not unconstitutional, that the trainee fire fighter has a right of action for damages against the municipal employer, and that the municipal employer had the burden of proving that it was entitled to an offset for statutory benefits received by the plaintiff for his injuries. In the wrongful death action, a court commissioner on July 5, 2006, denied review based on the court's aforementioned opinion. Supreme Court: Holding that the statute granting the right of action abrogates the municipal employer's sovereign immunity, that the city does not have standing to challenge the statute granting the right of action under Washington's privileges and immunities clause, that the trainee fire fighter has a right of action for damages against the municipal employer, that the trial court's error in instructing the jury on the burden of proof on "excess damages" was harmless, and that the evidence supports the jury's award for the trainee fire fighter's future damages, the court affirms the decision of the Court of Appeals and the judgment and remands the case for further proceedings. Pamela A. Okano- (of Reed McClure); and Thomas A Carr-, City Attorney, and Rebecca Boatright- and Marcia M. Nelson-, Assistants, for petitioner. Todd W. Gardner-; William J. Rutzick- (of Schroeter Goldmark & Bender); and David J. Wieck- and John L. O'Brien- (of O'Brien Law Firm, PLLP), for respondents. Alexander J. Skalbania- (of Emmal Skalbania & Vinnedge, PLLC) (Thomas A. Woodley- and Baldwin Robertson- of International Association of Fire Fighters, of counsel) on behalf of International Association of Fire Fighters, amicus curiae. William B. Aitchison- and Christopher K. Vick- on behalf of King County Police Officers' Guild and Washington Council of Police and Sheriffs, amici curiae. Donald G. Daniel, Jr.-, and Elizabeth A. Mc Intyre- (of Law Lyman Daniel Kamerrer & Bogdanovich, PS) on behalf of Washington Cities Insurance Authority, amicus curiae. Daniel B. Heid-, City Attorney for the City of Auburn, on behalf of Washington State Association of Municipal Attorneys, amicus curiae. Bryan P. Harnetiaux-; and Kelby D. Fletcher- (of Peterson Young Putra) on behalf of Washington Trial Lawyers Association, amicus curiae. En Banc Ά1 OWENS, J. In these consolidated cases, respondents Kevin Locke and Gary Lindell's personal representative sued the city of Seattle (City) for injuries sustained during Locke's and Lindell's employment. In both cases, the City challenges the "right to sue" provision in the Washington Law Enforcement Officers' and Fire Fighters' Retirement System Act (LEOFF), chapter 41.26 RCW. See RCW 41.26.281 ("right to sue" provision). The City contends that LEOFF's "right to sue" provision violates sovereign immunity and the privileges and immunities clause in article I, section 12 of the Washington Constitution. In Locke, the City also contends that Locke was not a fire fighter at the time of his injury and that the evidence presented at trial does not support the jury's future damages award. We affirm the Court of Appeals in part and hold that the "right to sue" provision abrogates the City's sovereign immunity, that the City has no standing to challenge the provision under Washington's privileges and immunities clause, that Locke was a fire fighter under LEOFF, and that the evidence supported the jury's future damages award. FACTS Locke Ά2 The City hired Locke as a fire fighter in 2000 and sent him to a 12-week fire fighter training course. During the 10th week of training, Locke sustained injuries when he fainted from dehydration and fell from a 50-foot ladder while performing a practice rescue with a 120-pound mannequin. Locke sued the City for his injuries under the "right to sue" provision in LEOFF. A jury determined that the City was negligent and returned a verdict in Locke's favor. The City appealed, arguing in part that Locke was not a fire fighter under LEOFF because he was in training and th Ά9 The City in both Locke and Lindell argues that the City is immune from suit under sovereign immunity principles. RCW 41.26.281 grants law enforcement officers and fire fighters the "right to sue" their employers for damages over the amount received under workers' compensation. See Fray v. Spokane County, 134 Wn.2d 637, 655, 952 P.2d 601 (1998); accord Hauber v. Yakima County, 147 Wn.2d 655, 660, 56 P.3d 559 (2002). Whether the legislature has abrogated the City's sovereign immunity by statute is a question of statutory interpretation. As with all questions of law, we review questions of statutory interpretation de novo. Berrocal v. Fernandez, 155 Wn.2d 585, 590, 121 P.3d 82 (2005) (citing Enter. Leasing, Inc. v. City of Tacoma, 139 Wn.2d 546, 552, 988 P.2d 961 (1999)). Ά10 A municipality derives its sovereign immunity from the State. Kelso v. City of Tacoma, 63 Wn.2d 913, 916-17, 390 P.2d 2 (1964) (discussing municipality sovereign immunity). The state legislature may waive such immunity as provided in article II, section 26 of the Washington Constitution: "The legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state." Accord Coulter v. State, 93 Wn.2d 205, 207, 608 P.2d 261 (1980) ("[T]he abolition of sovereign immunity is a matter within the legislature's determination."). The City argues that the legislature has not waived the municipality's sovereign immunity from suits under LEOFF. Ά11 In Locke, 133 Wn. App. at 702-04, the Court of Appeals ruled that the legislature waived the City's sovereign immunity by enacting RCW 4.96.010(1), which provides in pertinent part as follows: All local governmental entities . . . 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. (Emphasis added.) The City contends that RCW 4.96.010(1) does not waive its sovereign immunity because private employees may not sue their employers under LEOFF and must instead recover exclusively under the Industrial Insurance Act, Title Ά12 The Court of Appeals held that RCW 4.96.010 waives the City's sovereign immunity, holding that "[t]he correct interpretation of RCW 4.96.010 is that if a government is found to have engaged in tortious conduct under applicable substantive law, which may or may not be different for government than for private parties, then the government will be liable for such tortious conduct 'to the same extent as if [it] were a private person or corporation.' " Locke, 133 Wn. App. at 703-04 (quoting RCW 4.96.010). Ά13 We hold that RCW 4.96.010 waives the City's sovereign immunity for suits under LEOFF. As we have previously articulated, the concern in RCW 4.96.010 is not to impose new, general public duties upon the municipality. E.g., J&B Dev. Co. v. King County, 100 Wn.2d 299, 304-05, 669 P.2d 468 (1983) (describing analysis under RCW 4.96.010), overruled on other grounds by Meaney v. Dodd, 111 Wn.2d 174, 759 P.2d 455 (1988); see also Beal v. City of Seattle, 134 Wn.2d 769, 784-86, 954 P.2d 237 (1998) (describing public duty doctrine). Allowing LEOFF members to sue their employers for negligent or intentional harm does not create a new municipal duty not otherwise existing for private parties. Further, the language of RCW 4.96.010 does not state that parties may sue governmental entities "only to the same extent as a private party may be liable." Rather, it merely notes that municipalities may not be liable for breaches of duties not generally existing for private entities or corporations. Thus, we hold that RCW 4.96.010 waives the City's sovereign immunity. B. Does LEOFF's "right to sue" provision violate Washington's privileges and immunities clause? Ά14 The City also contends that the LEOFF "right to sue" provision violates Washington's privileges and immunities clause. The City has no rights of its own under the privileges and immunities clause, and it has not established standing to assert the rights of any other person or entity. Ά16 The City contends that article I, section 12 is violated by RCW 41.26.281 because while the City must pay workers' compensation benefits, the statute prevents it from enjoying like immunity under the Industrial Insurance Act with other employers. This is a claim that the City has been denied immunity enjoyed by other employers and that it therefore is not treated equally. As a municipal corporation, the City is not entitled to make this claim under article I, section 12. Ά17 The City also maintains that fire fighters and police officers should not enjoy special rights that do not belong to other employees, i.e., the right to sue the City. However, the City does not show how it has standing to complain about this asserted unequal treatment. The case chiefly relied on by the City, Alton V. Phillips Co. v. State, 65 Wn.2d 199, 396 P.2d 537 (1964), involved a special enactment that allowed one specific contractor to sue the State notwithstanding statutes of limitations. The State was allowed to challenge the unconstitutionality of the statute under article I, section 12. But Alton V. Phillips involved a suit against the State, not against a municipal corporation. It does not support the City's standing in this case. C. Is a fire fighter attending a 12-week training program a LEOFF Plan II member? Ά20 In the instant case, the evidence at summary judgment revealed that Locke passed the city of Seattle Public Safety Civil Service Commission fire fighter examination on June 26, 1999, with a score of 94.66placing him in the top 25 percent of all exam takers. Clerk's Papers (CP) at 2060, 2120. As a result of Locke's exceptional score, the City offered him employment as an "entry level Fire Fighter" in a March 27, 2000 letter. Id. at 2121-22 ("[C]ongratulations on your appointment as an entry level Fire Fighter."). The letter further explained that upon acceptance of the offer of employment Locke would enter recruit traininga 12-week program beginning April 19, 2000. Locke reported to recruit training as directed on April 19, 2000. Locke also filled out a "State of Washington Department of Retirement Systems Enrollment Form," which listed his job title as "FIRE FIGHTER" and enrolled him in LEOFF Plan II. Id. at 2123. On September 15, 2003, the Seattle Fire Department sent Locke a letter confirming that, "[s]ince the effective date of your appointment to Fire Fighter, April 19, 2000, you have been a LEOFF II Retirement System member." Id. at 2125. Ά21 The City argues that this evidence was insufficient to establish that Locke was a fire fighter. Specifically, the City contends that Locke was not a fire fighter because he was a member of a recruit class. The City likewise argues that Locke was not a fire fighter because he did not have "the legal authority and responsibility to direct or perform fire protection activities." WAC 415-104-225(2). Ά22 We reject the City's arguments and hold that Locke was a fire fighter for purposes of LEOFF. The evidence established that Locke was "serving in a position which requires passing a civil service examination for fire fighter," within the meaning of RCW 41.26.030(4)(a). Even under the WAC definition of fire fighter, Locke had the "legal authority" to perform fire protection activities, even if those activities were done in relation to training. As amicus curiae International Association of Fire Fighters notes, fire fighters often undergo regular training exercises throughout their career and are fire fighters during their training periods. As the Court of Appeals in this case observed, "the city's proposed narrow definition of 'fire fighter' . . . discounts the value placed by the legislature upon those who undertake the risks involved in fire fighter training." Locke, 133 Wn. App. at 712. Accordingly, we affirm on this issue. D. Did the trial court err in instructing the jury on "excess damages"? E. Does the evidence support the jury's future economic damages award? Ά24 The City contends that the evidence produced during Locke's trial does not support the jury's future economic damages award of $514,000. The City brought a CR 59 motion for new trial or for a remittitur, arguing in part that Locke did not meet his burden of establishing the future economic damages award and that the damages award resulted from prejudice or passion. CR 59(a)(5). The trial court denied the City's motion and the Court of Appeals affirmed. Ά26 The evidence at trial revealed that Locke's fall resulted in permanent injuries. Verbatim Report of Proceedings (VRP) (June 7, 2004, 1:30 PM) at 43. As a result of these permanent injuries, Locke received physical therapy, massage, and rolfing treatments for his ongoing and increasing pain. VRP (June 23, 2004) at 192-94, 202-03. The physical therapist testified that her physical therapy visits cost $160 per visit. VRP (June 7, 2004, 1:30 PM) at 50-51. The evidence further revealed that Locke spent more than $10,000 for such treatment in the two years preceding the trial. Id. at 100. The court instructed the jury that Locke's life expectancy was an additional 32.43 years. CP at 4079. Ά27 Locke's physical therapist testified that it may take four to six months before Locke reached the maximum benefit from physical therapy but also testified that his injuries were permanent. Locke testified that he needed massage and rolfing treatments in addition to physical therapy to manage his increasing pain. VRP (June 23, 2004) at 192-94, 202-03. Experts also testified that Locke may one day need future treatment such as subtalar fusion. VRP (July 1, 2004) at 27. The City further acknowledged that Locke was entitled to $49,000 in lost future business. Br. of Appellants at 43. Ά28 Based on the evidence presented at trial, the jury could have concluded that Locke's permanent injuries would require continued treatment for his life expectancy to manage the permanent injuries and increasing pain. We therefore hold that the trial court did not abuse its discretion in denying the City's motion for a new trial or remittitur. CONCLUSION Ά29 We hold that the LEOFF "right to sue" provision abrogates the City's sovereign immunity. We also hold that the City does not have standing to assert a Washington privileges and immunities claim in this case. We affirm the Court of Appeals and trial court on all other issues in Locke. Accordingly, we remand the consolidated cases for further proceedings consistent with this opinion. ALEXANDER, C.J., and C. JOHNSON, MADSEN, SANDERS, BRIDGE, CHAMBERS, FAIRHURST, and J.M. JOHNSON, JJ., concur.