nigel-malden-law

Washington State Defamation Law

Tue, 16 Dec 2025 13:12:08 GMT

Washington State Defamation Law

Disclaimer

These materials are intended to provide general information only, and not legal advice. Laws and court rulings discussed herein may be subject to amendment, interpretation, or change over time.

The plaintiff in a defamation case must prove the defendant: (1) published (2) false, defamatory and (3) unprivileged (4) statements of fact with the (4) requisite mental state (either negligent or intentional disregard of the truth) (5) causing damages. Mark v. Seattle Times, 96 Wash.2d 473, 486 (1981), cert. denied, 457 U.S. 1124 (1982).

A. What is Publication?

“Publication” requires communicating the defamatory statement to at least one third party, either orally, electronically, or in writing. A private communication sent by the defendant solely to the plaintiff in a case, does not meet the publication requirement. Pate v. Tyee Motor Inn, Inc., 77 Wn.2d 819, 821 (1970). In the workplace, a communication sent by an employee solely to his manager or supervisor in the ordinary course of employment may not meet the publication requirement if it relates solely to relevant work behavior of another employee. Doe v. Gonzaga University, 143 Wn.2d 687 (2001), judgment rev’d on other grounds, 536 U.S. 273 (2002) citing Prins. V. Holland-North America Mortg. Co., 107 Wash. 206, 208 (1919). The theory behind the “intracorporatee nonpublication” rule is that:

“Agents and employees of (the same principal) are not third persons in their relations to the corporation, within the meaning of the laws pertaining to the publication of libels. For the time being, they are a part and parcel of the corporation itself, so much so, indeed, that their acts within the limits of their employment are the acts of the corporation. For a corporation, therefore, acting through one of its agents or representatives, to send a libelous communication to another of its agents or representatives, cannot be a publication of the libel on the part of the corporation. It is but communicating with itself.”

B. What is Defamatory?

In order to be actionable, the defendant’s statement must be a false assertion of fact which subjects the plaintiff to hatred, contempt or ridicule. Valdez-Zonletk v. Eastmont School Dist., 154 Wash App 147, (Div 3 2010). Whether a statement is a defamatory assertion of fact, is usually a question for the jury. However, there are four types of statements that are defamatory per se including:

false allegations the plaintiff committed a serious crime

false allegations the plaintiff has a loathsome disease

false allegations the plaintiff is unchaste

false allegations the plaintiff engaged in conduct incompatible with his business, trade, profession, or office.

If the defendant’s statements are defamatory per se, then damages are presumed . This means the plaintiff is not required to prove economic loss or emotional distress in order to obtain substantial monetary damages.

C. Fact vs. Opinion

In order to be actionable, the defendant’s statement must be an assertion of fact, not rhetorical hyperbole or a statement of opinion protected by the First Amendment. Camer v. Seattle Post-Intelligencer, 45 Wash.App. 29, 39 (1986) citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, (1974).

Whether something is a statement of fact versus opinion or rhetorical hyperbole, is a threshold question of law for the court which considers:

(1) the medium and context in which the statement was published;

(2) the audience to whom it was published; and

(3) whether the statement implies undisclosed facts. Dunlap v. Wayne, 105 Wash.2d 529, 539 (1986).

Opinions and rhetorical hyperbole are statements that cannot be proved true or false and therefore, although offensive, are inactionable as a matter of law. For example: Robel v. Roundup, 148 Wn.2d 35 (2002)(Fred Meyer employees called a co-worker an idiot, snitch, and liar ); Sisley v Seattle Public Schools , 180 Wn App 83 (Div 1 2014)(high school newspaper reporter called residential rental properties crack shacks ); Jewell v. NYP Holdings, Inc. , 23 F. Supp.2d 348 (S.D.N.Y. 1998)(newspaper article called the plaintiff who found the backpack bomb at the 2004 Olympics in Atlanta, a fat, failed, former sheriff's deputy ); Seelig v. Infinity Broadcasting , 97 Cal. App. 4th 798 (Cal. Ct. App. 2002)(radio talk show host described the plaintiff as a local loser and big skank ) 1 ; Cochran v. NYP Holdings, Inc. , 58 F Supp2d 1116 (newspaper article claimed that OJ Simpson’s attorney, Johnnie Cochran, will say or do just about anything to win, typically at the expense of the truth ); Burke v Gregg , 55 A.3d 212 (R.I. 2012)(radio talk show host called a restaurant owner a punk and a manipulative piece of garbage ).

D. Public vs. Private Figures

Whether the plaintiff is a public or private figure is a key issue in any defamation case. This is because if the plaintiff is a public figure and the statements at issue concern his public duties, the plaintiff must prove the defendant spoke with actual malice . Herron v King Broadcasting Co. , 112 Wn.2d 762 (Wash 1989) citing New York Times Co. v. Sullivan , 376 U.S. 254 (1964). Actual malice does not mean hostility, spite or ill will. Actual malice means the defendant knew his statements were false or made in reckless disregard of the truth and must be proved by clear and convincing evidence.

Alternatively, the private figure plaintiff must prove the defendant knew, or in the exercise of reasonable care should have known, that his defamatory statements were false or would create a false impression. In a private figure case, this negligence must be proved by the regular civil standard of preponderance of the evidence.

E. Damages

In a private figure defamation case, the plaintiff may recover actual damages for economic loss and reputational injury. In a public figure defamation case, if the plaintiff proves the defendant acted with actual malice, the jury is instructed to presume damages. This means the plaintiff is not required to prove economic loss or emotional distress in order to obtain monetary damages.

F. Defenses

There are several possible defenses to a defamation claim. This article discusses just two of them.

1. The Truth

The truth is a complete defense to any defamation claim. In order to obtain summary dismiss of the case, the defendant only has to prove that the gist of his statements were substantially true . Mark v Seattle Times , 96 Wn.2d 473, 486 (1981), cert. denied , 457 U.S. 1124 (1982). A plaintiff may not base a defamation claim on true statements or the negative implications of true statements. Lee v. Columbian, Inc. , 64 Wash. App 534, 583 (1991).

2. The Common Interest Qualified Privilege

There are certain kinds of statements made in certain contexts that are privileged and inactionable as a matter of law. For example, statements made in a judicial proceeding and statements made in good faith to governmental agencies on matters of public concern are privileged and cannot support a defamation claim.

The common interest qualified privilege may protect from liability someone who publishes a defamatory statement to third parties with whom he shares a legitimate common interest. The requirements for invoking the privilege are:

(1) the declarant and the recipient(s) must have a common interest in the particular subject matter of the communication; and

(2) the declarant must correctly or reasonably believe that facts exist which the persons sharing the common interest are entitled to know.

The common interest qualified privilege has been frequently litigated in cases where defamatory statements are spread in the workplace by employers or employees acting in the ordinary course of their work.

In Messerly v. Asamara Minerals, Inc., 55 Wn App 811 (Div. 3 1989), the plaintiff miners were terminated for allegedly smoking marijuana on the job in violation of company policy and state law. The plaintiffs denied the accusations but their employer conducted an investigation and concluded the charges were supported by credible evidence. After firing the plaintiffs, an Asamera supervisor sent this written notice to all employees:

“I am sure you are all aware of the recent terminations of several mine employees. Some of the situations involve use of illegal drugs on the job. As all of us are aware, company policy in regard to smoking underground, use of any alcohol, illegal drugs, or any other substance that could affect your performance is very clear. It will not be tolerated.”

The appellate court affirmed the trial court’s dismissal of the plaintiffs’ defamation claims on the grounds that the employer’s notice was protected by the common interest privilege and the plaintiffs could not prove Asamera knew its statements were false.

In order to overcome the common interest qualified privilege in a defamation case, the plaintiff must prove by clear and convincing evidence that the defendant’s statements at issue were false and published with actual malice which means the defendant knew his statements were false or were communicated in reckless disregard of the truth. Lillig v. Becton-Dickinson, 105 Wash. 2d 653 (1986). This is the same degree of scienter necessary to prove the defendant’s liability for defaming a public figure and must also be proven by clear and convincing evidence. As indicated in the Messerly case, the defendant may show his honest belief arose from a fair and impartial investigation or from some other reasonable basis.

In Ward v. Painters' Local 300, 41 Wash.2d 859 (1953), the defendant accused a union official of stealing union funds during a union meeting. The accusation was investigated by an insurance company which found insufficient evidence to pay an embezzlement claim. No criminal charges were filed. The union official accused of the theft filed suit for defamation.

The trial court dismissed the claim on the grounds of the common interest qualified privilege. The appellate court agreed that union members have a common interest and privilege amongst themselves to discuss the qualifications and activities of its officers and members.

Consequently, the communication at the meeting of union members was conditionally privileged 7 as a matter of law. The appellate court remanded the case to the trial court solely to determine whether there was any proof that the conditional privilege had been abused.

In Hitter v. Bellevue School Dist . No. 405, 66 Wn.App. 391 (Wash.App. Div. 1 1992), cert denied 120 Wash. 2d 1013 (1992), the plaintiff was a special education teacher who was terminated after some co-workers accused him of inappropriately touching a disabled student. The plaintiff was vindicated and won reinstatement at an arbitration conducted pursuant to a collective bargaining agreement. He then sued the school district under various tort theories, including defamation. The defamation claim was based on the school principal’s disclosure of the allegations to the student’s mother.

The appellate court affirmed the trial court’s dismissal of the defamation claim on the grounds that the principal’s conversation with the student’s mother was subject to the common interest privilege. Although the allegations of misconduct were unfounded, the plaintiff had no clear and convincing proof that the school principal knew her statements were false or acted in reckless disregard of the truth. Moreover, she had merely disclosed the fact of the accusation and had refrained from making any personal or editorial comment.

G. Civil Immunity for Giving Bad References

In 2005, the Washington state legislature enacted RCW 4.24.730 to protect employers who give job references from being sued by their employees for defamation and invasion of privacy. The statute confers a broad immunity from civil liability to employers who disclose information about former or current employees to prospective employers or employment agencies if certain conditions are met:

the information must be provided at the request of another employer or employment agency, it cannot be unsolicited;
the disclosed information must relate solely to the employee’s ability to perform his/her job; the diligence, skill or reliability with which the employee carried out the duties of his/her job; or any illegal or wrongful act committed by the employee when related to the duties of his/her job;
the employer must retain a written record of the identity of the person or entity to which information is disclosed for a minimum of two years from the date of disclosure;
the employee or former employee must have the right to inspect any such written record upon request;
the written record must be filed by the employer alphabetically in a central “References” file maintained by the records custodian of the relevant department or division.

RCW 4.24.730 provides that, if all of these conditions are met, then the employer shall enjoy a presumption of good faith that can only be rebutted by clear and convincing evidence that the information disclosed by the employer was knowingly false, deliberately misleading, or made with reckless disregard for the truth.

The Meaning of "Misconduct" Under State Unemployment Law

Tue, 16 Dec 2025 13:12:07 GMT

“Misconduct” Under Washington Unemployment Law

Disclaimer

These materials are intended to provide general information only, and not legal advice. Laws and court rulings discussed herein may be subject to amendment, interpretation, or change over time.

One common misconception is that you cannot be fired from your job unless you do something wrong and give your employer good cause.

This may be the case if you have a contract with a work guarantee, are a union member protected by a collective bargaining agreement (CBO), or are a government employee protected by civil service rules. However, it is usually not the case if you are a regular at-will employee like many people in Washington.

An at-will employee can be fired for any reason or no reason at any time at the sole discretion of the employer.1 The reason for termination remains critical, however, to whether the fired worker qualifies for state unemployment benefits. Someone who is laid off for lack of work or fired for no good reason may be entitled to state unemployment benefits but someone who is fired for “misconduct,” is not. This is because the state unemployment system provides a limited safety net to eligible persons who lose their jobs through no choice or fault of their own.

The Definition of “Misconduct”

The purpose of the state unemployment system is to provide a limited safety net to those eligible persons who lose their jobs through no fault of their own as opposed to persons who are fired for their own misconduct. RCW 50.04.294 defines “misconduct” in the context of a state unemployment claim to include:

(a) Willful or wanton disregard of the rights, title, and interests of the employer or a fellow employee;

(b) Deliberate violations or disregard of standards of behavior which the employer has the right to expect of an employee;

(c) Carelessness or negligence that causes or would likely cause serious bodily harm to the employer or a fellow employee; or

(d) Carelessness or negligence of such degree or recurrence to show an intentional or substantial disregard of the employer's interest.

Some examples include:

(a) Insubordination showing a deliberate, willful, or purposeful refusal to follow the reasonable directions or instructions of the employer;

(b) Repeated inexcusable tardiness following warnings by the employer;

(c) Dishonesty related to employment, including but not limited to deliberate falsification of company records, theft, deliberate deception, or lying;

(d) Repeated and inexcusable absences, including absences for which the employee was able to give advance notice and failed to do so;

(e) Deliberate acts that are illegal, provoke violence or violation of laws, or violate the collective bargaining agreement. However, an employee who engages in lawful union activity may not be disqualified due to misconduct;

(f) Violation of a company rule if the rule is reasonable and if the claimant knew or should have known of the existence of the rule; or

(g) Violations of law by the claimant while acting within the scope of employment that substantially affect the claimant's job performance or that substantially harm the employer's ability to do business.

Making isolated and honest mistakes or failing to meet efficiency standards may be grounds for dismissal of an at-will employee but do not necessarily constitute “misconduct” sufficient to bar unemployment benefits under Washington law. RCW 50.04.294 states that “misconduct" does not include:

“inefficiency, unsatisfactory conduct, or failure to perform well as the result of inability or incapacity, inadvertence or ordinary negligence in isolated instances, or good faith errors in judgment or discretion.”

Reason for Termination

Some employers give their employees “exit interviews” and explain their decision to terminate face-to-face and in writing in every case. But, many do not. If there is any question or doubt in the employee’s mind, the employer can be asked to provide a signed written statement explaining the reasons for discharge under Washington Administrative Code (WAC) 296-126- 050. The law requires the employer to respond within ten days.

Voluntary Quits

The general rule is that, if you voluntarily quit your job (as opposed to being involuntarily separated), then you are disqualified from receiving unemployment benefits. The exceptions to the rule set forth in RCW 50.20.050 include:

the separation was necessary to protect the claimant or the claimant's immediate family members from domestic violence

the individual's usual compensation or hours were reduced by 25% or more

the individual's worksite changed, such change caused a material increase in distance or difficulty of travel, and, after the change, the commute was greater than is customary for workers in the individual's job classification and labor market

the individual's worksite safety deteriorated, the individual reported such safety deterioration to the employer, and the employer failed to correct the hazards within a reasonable period of time

the individual left work because of illegal activities in the individual's worksite, the individual reported such activities to the employer, and the employer failed to end such activities within a reasonable period of time

the individual's usual work was changed to work that violates the individual's religious convictions or sincere moral beliefs.

Administrative Appeals

If your application for unemployment benefits is denied by the state Employment Security Department (ESD), then you must file and serve a written Notice of Appeal within 30 days. Once the appeal is filed, the state appoints an administrative law judge (ALJ) employed by the Office of Administrative Hearings (OAH). The ALJ usually schedules the hearing to take place by telephone in less than 30 days. The key issues often include the claimant’s preseparation work hours and compensation, the reason for separation (quit, layoff or termination), and whether the claimant is actively searching for work in accordance with the ESD’s published rules and procedures.

Privacy and the Public Records Act

Tue, 16 Dec 2025 13:12:04 GMT

Privacy and the Public Records Act

Disclaimer

These materials are intended to provide general information only, and not legal advice. Laws and court rulings discussed herein may be subject to amendment, interpretation, or change over time.

Privacy & the Public Records Act

Our state and federal constitutions call for open government. This means the public must have the right to inspect government records. This right to inspect records kept by government entities and agencies is set forth in the Public Records Act (PRA).

A. PRA Purpose and Procedure

The PRA is designed to give the public broad, unfettered access to nonexempt public records because free and open examination of public records is in the public interest even if such examination “may cause inconvenience or embarrassment to public officials or others.

When a public entity is served with a PRA request for records, it must determine whether any of the records requested are exempt from disclosure. The PRA exempts from disclosure any material that would invade a person’s right to privacy. Specifically, RCW 42.56.230(3) exempts disclosure of personal information in files maintained for employees of any public agency “to the extent that disclosure would violate their right to privacy," and RCW 42.56.240(1) exempts from disclosure certain investigative records when necessary “to protect any person's right to privacy.” Under these RCWs, a person's right to privacy is invaded only if the disclosure of information about the person:

(1) Would likely be highly offensive to a reasonable person; and

(2) is not of legitimate concern to the public.

The public entity must give timely notice if any record is withheld under a claim of privacy or other exemption. If the party requesting production is dissatisfied with the response, he may file suit and seek a court order compelling production. If the requesting party prevails, he may seek an award of attorneys’ fees and monetary penalties.

B. What is Highly Offensive to Reasonable Person?

In general, the right to privacy only applies to “the intimate details of one's personal and private life." Dawson v. Dailey, 120 Wash.2d 782, 796 (1993). Whether the disclosure of such details would be “highly offensive” in a particular case, must be judged from the perspective of an ordinary person. As the following cases illustrate, however, whether something is “highly offensive” is not exactly a bright line test.

In Seattle Firefighters v. Hollister, 48Wn.App.129 (1987), a private researcher asked the state Department of Retirement Systems for the disability records of several retired fire fighters and police officers because she was conducting a nationwide study of public disability retirement systems. The firefighters’ union obtained an injunction in King County Superior Court barring the production of several records on the grounds they contained private medical histories including references to back injury, asthma, emphysema, ulcers, and arterial problems. The appellate court quashed the injunction because none of the medical conditions at issue were deemed “unpleasant, disgraceful, or humiliating illnesses” that would be “highly offensive to reasonable people.

In Spokane Police Guild v. Washington State Liquor Control Bd., 112 Wn.2d 30 (1989), the state liquor control board investigated a “stag and strip show” attended by off duty police officers. The agency concluded that one of the performer’s dances had violated state liquor control regulations. A newspaper requested a copy of the investigative report under the PRA. The agency announced that it would release the report unless someone obtained an injunction ordering otherwise.

The police guild filed suit in Spokane Superior Court seeking to enjoin production of the report on various grounds including invasion of privacy under RCW 42.56.230(3). The trial court denied the injunction and the guild appealed to the Washington State Supreme Court.

The court began its analysis by emphasizing that “full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.” The court then explained that the right to privacy under the PRA typically covers “the intimate details of one’s personal and private life,” but not alcohol fueled “antics before 40 or more people on premises licensed by the state Liquor Control Board.”

C. What is of Legitimate Public Concern?

In Allen Martin v. Riverside School District No. 416, 180 Wn. App. 28 (Div. 3 2014), a newspaper asked a school district to produce all records relating to its termination of a former teacher under the PRA. The teacher admitted to a sexual encounter with a former student in his classroom but denied any technical misconduct because the woman was over 18 and the incident occurred when the school building was officially closed for a holiday weekend.

The school district notified Martin that it would release its investigative report as requested unless a court ruled otherwise. The trial court’s denial of Martin’s request for an injunction was upheld on appeal. The appellate court acknowledged that disclosing the name of a teacher accused of sexual misconduct could be “highly offensive.” The court reasoned, however, that if the accusations were substantiated, then the investigation was of clear legitimate concern to the public and the records were not exempt from disclosure under the PRA.

In Tiberino v. Spokane County Office of the Prosecuting Attorney, 103 Wn. App. 680 (Div 3 2000), a legal secretary was terminated by the Spokane County Prosecutor’s Office for sending over 400 personal emails to friends and family after being warned such communications were being monitored and were not private. After the termination, a newspaper asked the prosecutor’s office to produce all of the emails under the PRA. The prosecutor’s office agreed to produce them unless Tiberino got an injunction.

Tiberino got the injunction. As it turned out, she was fired thirty days after reporting a sexual assault to her employer. The 400+ emails were all sent within 40 days following the assault. Tiberino was obviously in grave distress and her emails revealed personal and intimate details about the attack and its psychological consequences.

The court barred Tiberino’s ex-employer from producing the emails because the material was highly personal, unrelated to government operations, and “any reasonable person would find its disclosure to be highly offensive.” Furthermore, “the basic purpose and policy of the PRA is to allow public scrutiny of government, (not) promote scrutiny of particular individuals who are unrelated to any government operation.”

In Spokane Research and Defense Fund v. City of Spokane, 99 Wn. App. 452 (Div.3 2000), the City of Spokane received a PRA request for the City Manager’s annual performance reviews. The city denied the request on the grounds that employee performance reviews are covered by the privacy exemption in RCW 42.17.310(1)(b).

The reviewing court noted that public employee performance evaluations are usually exempt from public disclosure because both the supervisor and the employee reasonably expect confidentiality and the legitimate public interest in such material is usually limited. However, the expectations and the rules are different when the employee at issue is a public figure and the city’s chief executive officer. In such cases, the employee cannot reasonably expect his performance reviews to be private and exempt from disclosure.

In Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d. 199 (2008), a newspaper filed a PRA request with the Bellevue school district for all complaints lodged against all teachers for sexual misconduct. The request did not distinguish between accusations or complaints that were substantiated following investigation and those that were not.

The school district notified its teachers that it would release the records as requested unless someone obtained an injunction. A group of the teachers sought the injunction in King County Superior Court. All teachers in the group faced charges of sexual misconduct that were investigated but never substantiated. They argued that releasing their names along with unsubstantiated complaints would damage their names and reputations and violate their right to privacy. The Washington State Supreme Court agreed and clarified the applicable rules:

(1) when a complaint regarding misconduct during the course of public employment is substantiated or results in some sort of discipline, then an employee does not have a right to privacy in the complaint;

(2) however, when an allegation of misconduct is unsubstantiated , then the teacher’s identity is not a matter of legitimate public concern;

(3) when a document does not detail the unsubstantiated misconduct and a teacher is not disciplined or subject to any restriction, then his or her name should be redacted before disclosure. This protects the public interest in overseeing the school district’s response to misconduct allegations and the teacher’s individual right to privacy.

Invasion of Privacy in Washington State

Tue, 16 Dec 2025 13:12:02 GMT

Invasion of Privacy in Washington State

DISCLAIMER

These materials are designed to provide general information regarding invasion of privacy in the State of Washington. The reader is cautioned that the status, rules, and cases discussed in these materials may be subject to interpretation and change. These materials are not intended and should not be construed as legal advice.

I. Introduction

The rights to privacy in Washington derives from several different sources, including state and federal constitutions, state and federal statutes, and the common law of torts. Although this article discusses a few special privacy statutes, the main focus is on invasion of privacy claims arising under constitutional and state common law.

II. The Constitutional Right to Privacy

“Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.”

The state and federal constitutions protect citizens from governmental actions that invade privacy. Article 1, Section 7 of the Washington State Constitution states that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” The courts have intercepted this provision as conferring two distinct rights of privacy, the right to nondisclosure of intimate personal information and the right to personal autonomy. In the workplace, the right to nondisclosure of intimate personal information may be violated by the improper release of information contained in personnel or other files. The right to personal autonomy may be violated by improper employee drug testing, searched and surveillance.

In Robinson v. City of Seattle , 102 Wn.App. 795 (Div. 1 2000), Division 1 of the Court of Appeal considered whether the City of Seattle’s mandatory, city-wide, preemployment drug testing program invaded the right to privacy under the state constitution. The program required all successful external applicants for designated positions to undergo urinalysis. The designated positions were all said to involve (1) public safety responsibilities (2) handing dangerous substances (3) hazardous physical activities (4) routine operation of motor vehicles, heavy equipment, or power tools and (5) routine performance of other safety sensitive activities.

A group of Seattle residents and the ACLE challenged the program on the grounds that such widespread mandatory drug testing violated the rights to privacy guaranteed by Article 1, Section 7 of the Washington State Constitution:

The court explained Article 1, Section 7:

“breaks down into two basic components: the disturbance of a person’s ‘private affairs’ or the invasion of his or her home, which triggers the protection of the section; and the requirement that ‘authority of law’ justify the governmental disturbance or invasion. Disturbance of private affairs occurs when the government intrudes upon those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass.”

The court concluded that the collection and testing of urine by the City was an intrusive search into private affairs and therefore had be conducted pursuant to a warrant unless a recognized exception applied, such as consent, exigent circumstances, or plain view. This is because in the absence of individualized suspicion of wrongdoing, the general search “is anathema to Fourth Amendment and Const. Ar. 1, Sec. 7 protections and except in the most compelling situations, should not be countenanced.” Robinson , 102 Wn.App. at 814.

Whether the government has unreasonably intruded upon private affairs in violation of the state constitution involves a “reasonableness inquiry.” In this inquiry, the balancing of interest and intrusion is fact-specific:

“The search must be justified by compelling governmental interests and must be narrowly tailored to meet those interests…that standard is satisfied only as to testing of City applicants whose duties will genuinely, implicate public safety. On this record, we are unable to say which City positions fall within this category, other than sworn police officers and firefighters, and positions requiring an employee to carry a firearm.”

Division 1 remanded the case to the trial court, which was directed to issue an order enjoining Seattle’s drug testing program as to all other employment positions. The court said that “upon further proceedings, to the extent the City is able to demonstrate that other City positions involve the performance of duties whereby public safety is in jeopardy, the trial court may modify its injunction as appropriate.”

In Robinson and in many other cases, Washington courts have emphasized that the right to privacy guaranteed by Article 1, Section 7 of the state constitution is broader than the privacy right protected by the Fourth Amendment in the U.S. Constitution:

“While the Fourth Amendment operates on a downward ratcheting mechanism of diminishing expectations of privacy, Article 1, Section 7, holds the line by pegging the constitutional standard to ‘those privacy interests which citizens of this state have held, and should be entitled to hold, safe from government trespass absent a warrant.’” Robinson, 102 Wn.App. at 819 (citations omitted).

Nonetheless, the protections of the Fourth Amendment are often raised in workplace privacy disputes involving public employers who are by definition, “state actors.”

The Fourth Amendment to the United States Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fourth Amendment’s protection from unreasonable searches extends beyond the sphere of criminal investigations. The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by government without regard to whether the governmental agent or actor is investigating crime or performing some other function. See City of Ontario, California v. Quon, 560 U.S. 746 (2010).

Although the Washington State constitution gives broader protection to the right of privacy than the federal constitution, the city of Seattle’s former drug testing program may still have violated the Fourth Amendment because federal courts have ruled that the process of collecting and testing employee urine implicates “expectations of privacy that society has long recognized as reasonable” under the federal constitution. Borse v. Pierce Goods Shop, Inc., 963 F.2d 611 (3rd Cir. 1992). Citing Skinner v. Railway Labor Executives Association, 489 U.S. 602, 617 (1989).

III. Invasion of Privacy Claims Under State Common Law

The courts in Washington recognize four different kinds of common law tort claims for invasion of privacy: (1) public disclosure of private facts (2) intrusion upon seclusion (3) appropriation of name or likeness and (4) false light portrayal . Each one has its own requirements.

IV. Invasion Of Privacy--Public Disclosure of Private Facts

The Washington Supreme Court recognized the right to assert a tort claim for Invasion of Privacy-Public Disclosure of Private Facts in Reid v. Pierce County, 136 Wash. 2d 195 (1998). The plaintiffs in Reid claimed that the Pierce County Coroner’s Office invaded their privacy by showing autopsy photographs of their deceased relatives at social events for entertainment purposes.

The Washington Supreme Court adopted Restatement (Second) of Torts Sec. 652D:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.

“Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal matters, most details of a man’s life in his home, and some of his past history that he would rather forget. Within these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of privacy, unless the matter is one of legitimate public interest.” Cowles Publishing Co. v. State Patrol, 109 Wash. 2d 712, 721 (1988), quoting Restatement (Second) of Torts, Sec. 652D.

A. Publicity

“Publicity means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public. Thus it is not an invasion of the right of privacy to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons (but) any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity within the meaning of the term as it is used in this Section. The distinction, in other words, is one between private and public communication.”

B. Highly Offensive

In general, the common law right to privacy only protects “the intimate details of one's personal and private life." Dawson v. Dailey, 120 Wash.2d 782, 796 (1993). Whether a particular disclosure is highly offensive is judged from the perspective of a reasonable person of ordinary sensibilities and is usually a question of fact for the jury, not a matter of law for the court.

One bright line rule is there is no liability for publicizing information which is already public. In Cox Broadcasting v. Cohen, 420 U.S. 469 (1975), the U.S. Supreme Court held that the First Amendment right to free speech (in the United States Constitution) restricts states from imposing penalties on the press for publishing accurate information obtained from a public court record.

Courts have also held that when someone posts information about themselves on social media, it can be freely republished by a third party without liability.

Sandler v. Calcagni, 565 F. Supp. D 184 (D. Me. 2008), is a good example. The case involved two high school friends and cheerleaders whose argument over a boyfriend went ballistic. The two teenagers accused each other of bullying and harassment and both got a restraining order against the other. Calcagni blogged on the internet about Sandler’s Jewish ancestry and made anti-semitic remarks. Calcagni was later convicted of criminal mischief for driving through Sandler’s neighborhood and spray painting Nazi swastikas on road signs.

Calcagni published a book, Help Us Get Mia. The book re-argued Calcagni’s defense to criminal charges and accused Sandler of fabricating evidence. Help Us Get Mia also revealed personal information about Sandler’s cosmetic surgery and history of psychological treatment which Sandler had previously shared with Calcagni in confidence.

Calcagni’s actions seemed a vicious betrayal, but the federal court dismissed claims for invasion of privacy because Sandler herself disclosed her psychological treatment on social media and cosmetic surgery to the face is by its nature exposed to the public eye. The court cited comments from the Restatement (Second) of Torts:

“Complete privacy does not exist in this world except in a desert and anyone who is not a hermit must expect the more or less casual observance of his neighbors and the passing public as to what he is and does, and some reporting of his daily activities. Thus he must expect the more or less casual observation of his neighbors as to what he does, and that his comings and goings and his ordinary daily activities, will be described in the press as a matter of casual interest to others. The ordinary reasonable man does not take offense at a report in a newspaper that he has returned from a visit, gone camping in the woods or given a party at his house for his friends. Even minor and moderate annoyance, as for example through public disclosure of the fact that the plaintiff has clumsily fallen downstairs and broken his ankle, is not sufficient to give him a cause of action under the rule stated in this Section. It is only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it, that the cause of action arises.”

Some examples of activities found to be highly offensive invasions of privacy in state court cases include:

Miller v. National Broadcasting Co ., 187 Cal. App. 3d 1463 (1986), a television crew barged into a private home with paramedics and filmed a man dying of a heart attack without gaining the wife’s permission.

Catsouras v. Department of the California Highway Patrol , 181 Cal. App. 4th 856 (2010), CHP officers sent death scene photos to third parties on Halloween “for pure shock value.” The photos went viral and were sent to the victim’s parents accompanied by ugly taunts and messages.

Jeffery H. v. Imai, Tadlock & Keeny , 85 Cal. App. 4th 345 (2000), a law firm disclosed the HIV status of a litigant in an automobile accident case for no legitimate reason.

Egan v. Schmock , 93 F.Supp 2d 1090 (N.D. Cal.2000), defendants stalked and filmed their neighbors.

C. What is of Legitimate Public Concern?

In addition to proving the disclosure of information was “highly offensive,” the plaintiff must prove it was of no legitimate concern to the public.

There is no single, bright line test to determine whether something is “newsworthy,” or of legitimate concern to the public. The comments to Restatement (Second) of Torts § 263D suggest that “newsworthy” stories and “disclosures” include those:

"concerning homicide and other crimes, arrests, police raids, suicides, marriages and divorces, accidents, fires, catastrophes of nature, a death from the use of narcotics, a rare disease, the birth of a child to a twelve-year-old girl, the reappearance of one supposed to have been murdered years ago, a report to the police concerning the escape of a wild animal and many other similar matters of genuine, even if more or less deplorable, popular appeal."

The public has a legitimate interest in the private lives of prominent figures including movie stars, politicians, and professional athletes as well as “interesting phases of human activity,” or information which may help individuals “cope with the exigencies of the period." Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir. 1980). The public also has a legitimate interest in information which may educate, amuse or enlighten. The scope of what is newsworthy can be huge, but there are limits:

“The line to be drawn is when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern.” Diaz v. Oakland Tribune, Inc., 139 Cal. App. 3d 118 (Cal. Ct. App. 1983).

In Shulman v. Group W. Productions, Inc., 18 Cal.4th 200 (1998), the California Supreme Court reviewed video taken at an auto accident scene which showed the victim trapped in her car, begging to die. Surprisingly, the court held that broadcasting the video on television was not so invasive of privacy as to out-weigh the public’s legitimate interest in seeing the response to medical emergencies occurring on public streets.

In Gilbert v. Medical Economics Co., 665 F.2d 305 (10th Cir. 1981), a federal appellate court ruled that information about a physician's psychiatric history and marital life was relevant to the newsworthy topic of policing failures in the medical profession. In Strutner v. Dispatch Printing Co., 442 N.E.2d 129 (Ohio Ct. App. 1982), the court approved the publication of the name and address of the father of suspected rapist.

In White v Town of Winthrop, 128 Wn. App. 588 (Div. 3 2005), a former town marshall resigned after having a seizure at work and being transported to hospital by ambulance. White had epilepsy since childhood but reliably controlled his seizures with medication. He did not openly discuss his medical condition because he did not want to be ridiculed or stigmatized.

White resigned in a private meeting with the town mayor. He explained what happened and why he felt resignation was best even though he liked his job. White expected the mayor to keep everything private and confidential. He was therefore mortified when he read about his resignation in the local paper a few days later:

“Winthrop Mayor Don Johnson said that White, who has been taking medications regularly to control his seizures, suffered a seizure July 21 after a bout with food poisoning made it difficult for him to keep his medications down.”

White sued for invasion of privacy. The defense argued that many townsfolk already heard about White’s medical condition through gossip at the local coffee shop. The blurb in the paper was meant as a tribute to White for his public service, not to embarrass him in any way.

The trial court dismissed the case on summary judgment but the appellate court reversed. The public has a legitimate interest in the resignation of public employees but not necessarily the details of underlying medical issues. The mayor’s good intentions were no defense to White’s invasion of privacy claim and the court remanded the case for trial to determine whether the mayor’s disclosures to the newspaper were highly offensive and of no legitimate concern to the public.

D. Recoverable Damages

The plaintiff may recover general damages for “mental distress proved to have been suffered if it is of a kind that normally results from such an invasion.” White v. Town of Winthrop, 128 Wn. App. 588 (2005). In Washington, there is no right to punitive damages for common law invasions of privacy.

V. Invasion Of Privacy--Intrusion Upon Seclusion

The elements of the claim for Invasion of Privacy--Intrusion Upon Seclusion are set forth in the Restatement of Torts Sec. 652B:

"One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."

“The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.”

A. The Intrusion Must Violate A Reasonable Expectation of Privacy

In order to be actionable, the defendant’s intrusion must invade a place, conversation, matter, or data source in which the plaintiff had “an objectively reasonable expectation of privacy, seclusion or solitude.” Shulman v. Group W Productions, Inc., 18 Cal.4th 200 (1998). Whether the plaintiff had a reasonable expectation of privacy depends on several factors including “the identity of the intruder, the extent to which other persons had access to the subject place and could see or hear the plaintiff, and the means by which the intrusion occurred.” Sanders v. American Broadcasting Companies, 20 Cal.4th 907, 923 (1999).

Generally, there can be no reasonable expectation of privacy in a place open to the public. Mark v. Seattle Times, 96 Wash. 2d 473 (1981); Peters v. Vinatieri, 102 Wn.App.641 (Div.2 2000), review denied, 143 Wn.2d 1022 (2001). This includes places where work or business is conducted in an open and accessible space within the sight and hearing of coworkers, customers, visitors or the general public.

B. The Intrusion Must Be Highly Offensive to A Person of Ordinary Sensibilities

In order to be actionable, the defendant’s intrusion must not only invade a reasonable expectation of privacy, but must also be “highly offensive” to an ordinary person. Whether an intrusion would be highly offensive to a reasonable person is usually an issue of fact for the jury. However, certain intrusions that violate criminal law, such as the voyeurism, eavesdropping and stalking statutes, could be deemed “highly offensive” as a matter of law.

Whether intrusive conduct that falls short of a crime is sufficiently offensive to give rise to a civil claim often depends on the degree and setting of the intrusion and the intruder's motives and objectives. In Hernandez v. Hillsides, Inc., 18 Cal.4th 200 (1998), the California Supreme Court considered whether a home for abused children violated its employees’ right to privacy by installing a hidden office camera. The employer installed the camera to try and catch someone who was using office computers to access pornography after normal working hours. This continued even after the employer warned all employees not to view pornography on its premises at any time and not to expect privacy on any office computer.

The hidden camera was wired so it could be operated remotely at any time. However, it was never actually used to record anything during normal work hours. The camera was only switched on three times in thirty days and only after normal hours when no one should have been present.

The California Supreme Court began by stating that most employees must have a “significantly diminished” expectation of privacy while at the workplace. Of course, this does not include “restricted areas with limited view or places reserved for personal bodily functions or other inherently personal acts.”

The camera at issue in the case was hidden inside an office workspace, not inside a restroom. But, the employees often worked with the office door closed and sometimes changed their clothes in the office at the end of the day. The court concluded whether the plaintiffs had a reasonable expectation of privacy in their office under the circumstances could not be decided as a matter of law but was a question of fact for the jury. One important factor that swayed the court was the employees were given no warning that the camera would be installed or used. However, the court ordered the case dismissed anyway because no reasonable person could find the hidden camera intrusion “highly offensive” under the circumstances. The camera was only used three times after hours to investigate a serious problem which was neither “excessive or egregious” as a matter of law.

In Mark v. King Broadcasting Co., 27 Wn. App. 344 (1980), a pharmacist filed an action for defamation and invasion of privacy against a television station for reporting he was charged with a $200,000 Medicaid fraud. The broadcast included a film clip taken outside the plaintiff’s pharmacy. The clip included limited views of the interior of the pharmacy filmed through the front window.

The court said that for filming to constitute actionable intrusion upon seclusion, it must be of something the public is not free to view. The film in Mark was shot from a public sidewalk and showed nothing a passerby could not have seen through the front window. Consequently, the filming would not be “highly offensive” to someone of ordinary sensibilities and the plaintiff could not recover for intrusion upon seclusion as a matter of law.

In Peters v. Vinatieri,102 Wn. App. 641 (Div. 2 2000), Lewis County Health Department agents drove into an RV park and took video of two illegal RV hookups. The RV park owner sued the county for invasion of privacy under Article 1, section 7 of the Washington state constitution and for violating his Fourth Amendment rights under the federal constitution.

The Washington appellate court said that:

The Fourth Amendment protects against governmental intrusion upon a legitimate expectation of privacy…a legitimate expectation of privacy has both a subjective and an objective requirement. A person must demonstrate an actual subjective expectation of privacy by seeking to preserve something as private, and society must recognize that expectation as reasonable…the Fourth Amendment protects people not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of the Fourth Amendment protection.”

The plaintiff may have subjectively believed the county agents trespassed on private property but his belief was unreasonable given the facts and circumstances. The RV park was advertised as open to the public so the county employees filmed from a lawful vantage point. Just as in Mark, the court dismissed the plaintiff’s intrusion upon seclusion claim because defendants filming would not be “highly offensive” to a person of ordinary sensibilities.

In Isabel Forster v. Michael Manchester, 189 A.2d 148 (Pa. 1963), an insurance company hired a private detective to conduct subrosa surveillance of the plaintiff who was making a personal injury claim over an accident. The plaintiff saw the detective following and filming her as she drove around in her car on public streets. The experience made the plaintiff nervous and upset causing her to have frequent nightmares and hallucinations which required medical treatment.

The Pennsylvania Supreme Court dismissed the case outright reasoning that its common for defendants to employ investigators to verify plaintiffs’ claims. Any claimant must therefore expect to be investigated and “to this extent (their) interest in privacy is circumscribed.”

Furthermore, the surveillance took place in daylight hours on public streets where plaintiff’s activities could be observed by passerby. There was no trespassing and “no spying through windows.” If the surveillance “disclosed inconsistencies in (plaintiff’s) claim then any embarrassment would be justified.”

The agents in Peters v.Vinatieri and the detective in Forster v. Manchester used regular cameras to film in public areas in broad daylight. The cases get more complicated when high tech devices like miniature cameras, night vision scopes and goggles, GPS trackers, phone trackers, telescopes, and now drones are thrown into the mix. 29 These high tech devices may eventually transform what is considered “open to public view” in both criminal and civil cases.

C. Is Monitoring Employee Email an Actionable Intrusion Upon Seclusion?

Employers often monitor employee use of email in the workplace. Whether such monitoring constitutes tortious intrusion depends on whether the employee has a reasonable expectation of privacy, which in turn hinges on “the operational realities of the workplace.” City of Ontario v. Quon, 560 U.S. 746 (2010). Relevant factors to consider include:

(1) who owns the computer or electronic device in use (2) who owns the computer network in use (3) whether the employee is using a private webmail account or an employer provided email account (4) whether the employer has a comprehensive written policy that gives proper warnings to all employees that electronic communications are owned by the employer and are not private and (5) whether any third party has access to the same emails.

One court held that employees cannot have a reasonable expectation of privacy in any email communications sent through an employer owned email system. Michael Smyth v Pillsbury Co., 914 F.Supp.97 (E.D. Pa. 1996). Another court held that any reasonable expectation of privacy as to email can be erased by timely distribution of written warnings to all employees. Holmes v. Petrovich Development Co., 191 Cal. App.4th 1047 (2011).

However, some courts have distinguished between work and private web based email accounts, and given significantly more privacy protection to email that is not connected to the employer's network. See e.g. Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J. 2010) (despite employer’s express written policy, employee retained privacy expectation in emailing her attorney on laptop owned by employer because plaintiff used a personal, password protected email account instead of her company email account).

D. Is Searching Employee Property an Invasion of Privacy?

A private employer’s involuntary search of an employee's person or property may constitute actionable intrusion under the common law if the employer violates a reasonable expectation of privacy and the search is conducted in an unreasonable and offensive manner. See e.g., K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632 (Tex.App.1984) (search of employee's purse in padlocked locker); Bodewig v. K-Mart, Inc., 54 Or.App. 480 (1981) (strip search of store cashier accused of stealing).

E. A Quaint Historical Interlude

Harper's Bazaar magazine published a photograph of a young married couple kissing in their ice cream store in the Farmers Market in Los Angeles, California in 1947. An article accompanying the photograph described "the poet's conviction that the world could not revolve without love, despite vulgarization of the sentiment by some, and that ballads may still be written about everyday people in love.”

The plaintiffs were offended their photograph was taken and published without their consent and they filed suit against the publisher for invasion of privacy. The case went all the way to the California Supreme Court which said its very difficult to prove invasion of privacy for a photograph taken in a public place. 31 The right "to be let alone" and to be protected from undesired publicity “is not absolute but must be balanced against the public interest in the dissemination of news and information consistent with the democratic processes under the constitutional guaranties of freedom of speech and of the press.” Gill v. Hearst Publishing Co. Inc., 40 Cal.2d 224 (1953).

he photograph of the affectionate young couple had no news value. But, it had entertainment value which is protected by the constitutional right to free speech just the same as traditional news. There was nothing indecent or offensive about the photograph even by the more conservative standards of the 1950s. The photo was not obtained by subterfuge or taken surreptitiously on private property.32 It merely showed the plaintiffs in a pose voluntarily assumed in a public market place. Consequently, the plaintiffs’ case was dismissed.

F. The Risk of Posting Photographs On the Internet

In Four Navy SEALs v. Associated Press, 413 F.Supp.2d 1136 (S.D. Cal. 2005), a group of Navy SEALs filed suit for invasion of privacy against a news agency which published photographs showing them in uniform subduing prisoners in Iraq. In some of the photos, the plaintiffs appeared to be “mugging or grinning” for the camera.

A journalist discovered the photos on an internet website called smugmug. The photographs had been uploaded onto the site by one of the plaintiff’s wives who mistakenly believed the site was private.

The federal district court dismissed the privacy claims because the plaintiffs were active duty military conducting war time operations in full uniform and they chose to allow their activities to be photographed and placed on the internet. “In this context, it would not be reasonable for anyone to expect their images to remain private.”

VI. Invasion of Privacy – Appropriation of Name or Likeness

Everyone’s right to the exclusive use of their own name and likeness is protected in Washington under state common law as well as special statute. The common law tort claim may be asserted against someone who appropriates for their own use or benefit the name or likeness of another without authorization. Restatement (Second) of Torts Secs. 652A-E (1977); Aronson v. Dog Eat Dog Films, Inc., 738 F.Supp.2d 1104 (W.D.Wash. 2010); Eastwood v. Cascade Broadcasting, 106 Wash. 2d 466 (1986).

The classic case for misappropriation of name or likeness arises from the use of someone’s photograph for advertising or other commercial purposes. See e.g. Lewis v. Physicians and Dentists Credit Bureau, 27 Wash. 2d 276 (1997); Downing v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir. 2001). Damages are measured to some degree based on the plaintiff’s public stature. If the plaintiff is a public figure, he can likely recover more damages for the value of the use of his name or likeness. However, appropriation is an intentional tort so a Plaintiff may recover general damages for emotional distress.

In addition to the common law cause of action, Washington residents have a statutory remedy for misappropriation of identity under RCW 63.60. The statute provides that everybody has a property right in the use of his or her own name, voice, signature, photograph, or likeness. RCW 63.60.010. The unauthorized use of these property rights subjects infringer to liability for statutory or actual damages. RCW 63.60.050 and .060. Courts may grant injunctive relief and order the destruction of infringing products and elements of their creation process, such as molds or negatives. Damages are calculated as the greater of $1500.00 or the actual damages suffered by the plaintiff, plus the infringer’s profits.

A. Newsworthiness Defense

Under RCW 63.60 and the common law, there is no cause of action for the publication of matters in the public interest. RCW 63.60.070(1) provides that:

“For purposes of RCW 63.60.050, the use of a name, voice, signature, photograph, or likeness in connection with matters of cultural, historical, political, religious, educational, newsworthy, or public interest, including, without limitation, comment, criticism, satire, and parody relating thereto, shall not constitute a use for which consent is required under this chapter."

Furthermore, the statute does not apply to the use of an individual’s or personality's name, voice, signature, photograph, or likeness, in any film “when the use does not inaccurately claim or state an endorsement by the individual or personality." RCW 63.60.070(2)(b).

The federal district court in Tacoma explained the newsworthiness or public interest defense in Aronson v. Dog Eat Dog Films, Inc.,738 F.Supp.2d 1104 (W.D.Wash.2010):

Under the First Amendment, a cause of action for misappropriation of another's name and likeness may not be maintained against expressive works, whether factual or fictional. The use of a plaintiff's identity is not actionable where the publication relates to matters of the public interest, which rests on the right of the public to know and the freedom of the press to tell it. It is only when plaintiff's identity is used without consent to promote an unrelated product of defendant that the defense becomes unavailable. Where the use of a plaintiff's identity in an advertisement is merely illustrative of a commercial theme or product and does not contribute significantly to a matter of public interest, a defendant cannot avail itself of the First Amendment defense. The appropriate focus is on the use of the likeness itself. If the purpose is informative or cultural, the use is immune; if it serves no such function but merely exploits the individual portrayed, immunity will not be granted.

VII. Invasion of Privacy – False Light Portrayal

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy, if: the false light in which the other was placed would be highly offensive to a reasonable person and the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. See Restatement (Second) of Torts § 652E (1977); Eastwood v. Cascade Broadcasting, 106 Wn.2d 466 (1986).

“False light” invasion of privacy claims are very similar to claims for defamation and the two claims are often alleged together. As with defamation claims, false light claims require a showing of falsity and knowledge of, or reckless disregard, for that falsity. Corey v. Pierce County., 154 W.App. 752 (Div.1 2010).

A plaintiff need not be defamed to bring a false light claim: It is enough that he is given unreasonable and highly objectionable publicity that attributes to him characteristics, conduct or beliefs that are false, and so is placed before the public in a false position. When this is the case and the matter attributed to the plaintiff is not defamatory, the rule here stated affords a different remedy, not available in an action for defamation. See Restatement (Second) of Torts 652E, comment B. Both defamation and false light claims are governed by the same two year statute of limitation. Eastwood v Casacade Broadcasting, 106 Wn.2d 466 (1986).

VIII. Special Washington Privacy Statutes

RCW Chapter 9.73 prohibits recording telephone or other electronic communications without the express consent of all parties. Anyone who records communications in violation of the RCW risks significant civil and criminal penalties.

In State v. Christensen, 153 Wn.2d 186 (1986), a mother listened in on her teenage daughter’s telephone conversation with her boyfriend. The girl used a remote handset in her bedroom behind closed doors while her mother listened on a speaker phone downstairs. The mother did not record the conversation but took written notes after the boyfriend mentioned a robbery. He did not admit direct involvement but said he knew where evidence was located.

The mother reported the conversation to the police and was later called to testify for the prosecution at the boyfriend’s robbery trial. The defense moved to exclude her testimony on the grounds that she illegally intercepted a telephone communication in violation of the RCW. The trial court denied the defense motion and admitted the mother’s testimony. The boyfriend was convicted of robbery and appealed his conviction to the Washington Supreme Court.

The court listed the four elements that must be proven under RCW 9.73.030. There must be (1) a private communication (2) transmitted by a device, which is (3) intercepted by use of a device designed to record and/or transmit (4) without the consent of all parties.

In State v. Christensen, the prosecution conceded that the mother’s listening to the conversation on the speakerphone was an “intercept” and that no consent was obtained. The disputed issue was whether the conversation was “private.”

A communication is private:

“(1) when parties manifest a subjective intention that it be private and (2) where that expectation is reasonable. Factors bearing on the reasonableness of the privacy expectation include the duration and subject matter of the communication, the location of the communication and the potential presence of third parties, and the role of the non-consenting party and his or her relationship to the consenting party.” State v. Christensen, 153 Wn. 2d 186, 193 (1986).

The state asked the court to recognize an implied exception to the law in the case of minor children. The state’s argument was that children have a reduced expectation of privacy because parents have an absolute right to monitor all telephone calls coming into the family home. Plus, the federal wiretapping statute allows interception of communications when just one party consents. This has been interpreted by some courts to mean that parents may give vicarious consent to record their children’s calls.

The Washington Supreme Court declined to recognize any such exception. The court said the two minors subjectively intended to have a private conversation. This was demonstrated by the boyfriend asking the mother to speak to the daughter and the daughter taking the phone from her mother and going upstairs to her room and shutting the door. The conviction was reversed and the case remanded for a new trial.

IX. Miscellaneous Washington Privacy Statutes

RCW 4.24.790 – Electronic Impersonation – Action for Invasion of Privacy 
RCW 9.73 – Violating Right of Privacy – Eavesdropping and Wiretapping 
RCW 9A.44.115-Voyeurism 
RCW 9A.46.110 – Stalking 
RCW 42.56.050 – Public Records Act – Invasion of Privacy

Tremors in the Blood: The Admissibility of Scientific Evidence Under Frye V. United States

Tue, 16 Dec 2025 13:12:01 GMT

Tremors in the Blood: The Admissibility of Scientific Evidence Under Frye V. United States, 293 f. 1013 (d.c. cir. 1923) by nigel malden

Summary

Frye v. United States is a landmark 1923 case from the Washington D.C. Court of Appeals which established the "general acceptance" or Frye test which still governs the admissibility of expert evidence and testimony in the state of Washington along with Evidence Rule 702.

Case Facts

James Alphonzo Frye was charged with second-degree murder. During his trial, Frye’s lawyer sought to introduce expert testimony from William Moulton Marston regarding a "systolic blood pressure deception test" which he argued helped prove Frye’s innocence.

Marston was a prominent American psychologist, inventor, and writer known for his role in the development of the early polygraph or so-called lie detector test. His theory was that when people lie during interrogation, they fear detection which raises their systolic blood pressure in a curve, matching “the struggle going on in their mind.”

Marston was prepared to testify that Frye’s blood pressure did not significantly change during an interview in which he denied any knowledge or participation in the crime which meant he was likely telling the truth.

The prosecution objected on the grounds that Marston’s theory, that a blood pressure device could reliably detect human deception, had no proven scientific basis. The trial court barred the expert testimony, Frye was convicted of second-degree murder, sentenced to 15 years behind bars, and appealed.

Frye expert, William Marston, and his wife, Elizabeth Holloway, testing an early polygraph device on a volunteer.

The Appellate Ruling

D.C. court of appeals Justice Josiah Alexander Van Orsdel wrote:

“While courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.”

Van Orsdel’s ruling did not mention another worrisome concern; if lie detector results were admissible in court, “the machine would likely supplant juries as the rational force that determined a person’s guilt or innocence,” and the judge in Frye’s trial had concluded that “juries are better suited to ‘determine whether or not a man is telling the truth."

Washington Still Follows Frye General Acceptance Test

The Frye general acceptance test remains the law in Washington and several other jurisdictions including California, Illinois, and New York.2 However, the federal courts and many state courts follow the stricter Daubert rule , as stated in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993), and Federal Rule of Evidence (FRE) 702.

The Daubert Rule

The Daubert rule requires that expert testimony be based on scientifically valid principles and reliable methods. The rule designates federal judges as gatekeepers who must protect the integrity of the judicial process by screening out unrerliable scientific or technical evidence oftenb referred to as “junk science.”

Federal trial judges are required to consider several factors to determine reliability, including whether the technique or theory can be tested, whether it has been peer-reviewed and published, the known or potential rate of error, the existence and maintenance of standards for its operation and whether the theory or technique is generally accepted by the relevant scientific community.

Federal Rule of Evidence 702, which governs the admissability of expert evidence and testimony in the federal courts, was amended in 2000 to incorporate Daubert.

Federal Rule of Evidence 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Compare the simpler and less onerous Washington Evidence Rule 702:

ER 702. Testimony by Expert Witnesses (State Rule)

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Reliability and Admissibility of Moden Day Polygraph Evidence

A modern day polygraph which monitors blood pressure, breathing, galvanic skin response (perspiration), and several other data points. Image credit: Shutterstock

A modern day polygraph is a device or procedure that measures and records a subject’s blood pressure, breathing, pulse, respiration, and skin conductivity (perspiration) while they answer a series of questions. The belief underpinning the use of the polygraph remains that deceptive answers will produce physiological responses that can be differentiated from those associated with non-deceptive answers; however, there are no specific physiological reactions associated with lying, making it difficult to identify factors that separate those who are lying from those who are telling the truth.

Factors affecting accuracy

Examiner skill: The experience and training of the examiner can significantly impact the accuracy of a test.

Questioning technique: Poorly formulated questions can lead to inaccurate results.

Physiological responses: Lie detectors measure physiological responses like blood pressure, heart rate, and perspiration, which can be affected by anxiety or stress, even in truthful individuals.

"Countermeasures": Individuals can be trained to manipulate their physiological responses to "beat" the test, such as by tensing muscles or altering breathing.

Subject's state: An innocent person who is stressed or anxious about the test may appear deceptive, while a guilty person who is a "psychopath" might show no reaction to lying.

How are polygraph tests used?

Polygraph tests have historically been used in criminal investigations as well as in employment screening for jobs and security clearances. Although a 1988 law prohibits most private-sector employers from using polygraphs, polygraph testing is still used in employment screening and testing by federal, state, and local law enforcement agencies.

In addition, law enforcement agencies use polygraph tests in criminal cases, to verify the truthfulness of suspects, witnesses, and complainants; and sex offender treatment programs use polygraph tests to evaluate treatment progress and compliance.

About half of U.S. states allow polygraph evidence to be used in court cases when both parties agree to it, and one state (New Mexico) allows it without both parties agreeing.

The general rule, followed almost without exception since Frye v. United States, 293 F. 1013 (D.C. Cir.1923), is that the results of a polygraph examination are inadmissible at trial. Polygraph results are generally inadmissible in Washington state courts, as they have not been generally accepted as a scientifically reliable method for evidence. This inadmissibility means a prosecutor cannot use polygraph results to bolster their case, nor can a defense attorney try to use them to impeach a witness.

In the 1998 US Supreme Court case United States v. Scheffer , 523 U.S. 303 (1998), the majority stated:

"There is simply no consensus that polygraph evidence is reliable (and) unlike other expert witnesses who testify about factual matters outside the jurors' knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion."

In 2005, the 11th Circuit Court of Appeals stated that "polygraphy did not enjoy general acceptance from the scientific community".

However, results can be admitted if both parties enter a written stipulation agreeing to their admissibility, which must be done before the exam is taken. There are also limited circumstances, such as within parole revocation hearings, where the results may be admissible without stipulation if the parties agree and the board finds the examiner qualified and the test conditions proper.

Limitations and reliability

Although lying can cause the physiological responses measured by polygraph machines—such as sweating and increased heart rate—those same changes can occur even when people are not lying, for example when they are nervous. So, while polygraph tests might be able to detect deceit, they also may have a high error rate.

Inconclusive results: It is possible to get inconclusive results rather than a definitive "lying" or "truthful" result.

https://yalelawjournal.org/essay/on-evidence-proving-frye-as-a-matter-of-law-science-an d-history

What are the different forms of polygraph tests?

The most widely used polygraph method is the comparison-question technique (CQT), first developed in 1947. The CQT compares subjects’ physiological responses to three different types of questions: Those relevant to an investigation (e.g. “Did you kill your spouse?”); neutral (irrelevant) questions designed to get a baseline pattern of physiological responses; and questions about past behavior that are not relevant to the investigation but are designed to elicit lies (e.g. “Have you ever betrayed someone you love?”). The idea is that a guilty person will have a stronger response to the investigation-relevant questions, while an innocent person will have a stronger response to the control questions designed to elicit lies.

Another polygraph method is the concealed-information technique (CIT), also known as the guilty knowledge test. This test assumes that only someone guilty will show arousal when lying about a fact that is not known to the public, such as the specific murder weapon used in a crime.

Sources

Paul C. Giannelli, Polygraph Evidence: Post-Daubert, 49 Hastings Law Journal 895 (1998).

Thomas L. Bohan, Scientific Evidence and Forensic Science Since Daubert: Maine Decides to Sit Out on the Dance , 56 Maine Law Review 102 (January 2004).

Jim Hilbert, The Disappointing History of Science in the Courtroom: Frye, Daubert, and the Ongoing Crisis of “Junk Science” in Criminal Trials , 71 Oklahoma Law Review 759 (2019).

Carrie Leonetti, Abracadabra, Hocus Pocus, Same Song, Different Chorus: The Newest Iteration of the "Science" of Lie Detection , 24 Richmond Journal of Law & Technology 1, (2017)

Federal Rule of Evidence 702-- Judicial Conference Amends Rule 702, 138 Harv. L. Rev. 899 (2025)

Kenneth J. Weiss, Clarence Watson, and Yan Xuan Frye's Backstory: A Tale of Murder, a Retracted Confession, and Scientific Hubris , Journal of the American Academy of Psychiatry and the Law Online 42 (2) 226-233 ; June 2014.

Kirstin Butler, He Met His Wife Over a Lie Detector. Then Things Got Interesting. December 22, 2022.

The Lie Detector | AMERICAN EXPERIENCE | PBS | Trailer: https://youtu.be/vYwLpCEl8Cg

Chapter 1:

https://www.pbs.org/wgbh/americanexperience/features/lie-detector-chapter-1/

Leonarde and Katherine Keeler pose with the Keeler Polygraph machine, 1935.

Nurses on the Frontline

Tue, 16 Dec 2025 13:11:59 GMT

Nurses on the Frontline

Arrested For Refusing To Take Blood From An Unconscious Patient—The Alex Wuebbels Case

RN Alex Wubbels, Salt Lake City, Utah, July 26, 2017, just moments before her arrest. Screenshot taken from You Tube video published by Salt Lake City Tribune https://youtu.be/ihQ1-LQOkns

Salt Lake City and University of Utah will each pay half of $500K settlement to nurse who blocked blood draw

FACTS

Marcos Torres crashed into a semi-truck while fleeing from Utah Highway Patrol troopers and died at the scene. William Gray, the semi-truck driver and part-time police officer, was severely injured and taken to the University of Utah Hospital in a coma.

Police officers arrived and ordered RN Alex Wuebbels to draw blood from Gray. They had no search warrant and Gray was not under arrest.

Wubbels respectfully declined to follow the order based on hospital policy which required one of the following three conditions to be met before drawing blood from a patient when ordered by law enforcement:

the patient consents which they cannot do while unconscious; or
the patient is under arrest; or
law enforcement has a search warrant.

After a short discussion, the police officer forcibly arrested Wubbels and placed her in his patrol car in handcuffs where she was held for 20 minutes before being released without charges. The incident, captured on police body camera footage, led to widespread public outrage, a settlement, and policy changes regarding interactions between police and healthcare workers.

Resolution and impact

Salt Lake City and the University of Utah will each pay half of a $500,000 payment that settles a dispute over the arrest of nurse Alex Wubbels after she barred a police officer from drawing blood from an unconscious patient.

The settlement, announced Tuesday, ended the possibility of a lawsuit by Wubbels, a University Hospital nurse whose July 26 arrest by Salt Lake City Police Department Detective Jeff Payne sparked widespread outrage after her attorney released body camera footage of the episode on Aug. 31.

Matthew Rojas, spokesman for Salt Lake City Mayor Jackie Biskupski, confirmed the city and university are each putting in $250,000 for the settlement.

“We’re glad we could come to a resolution with nurse Wubbels,” he said Thursday. On Wednesday, hospital spokeswoman Suzanne Winchester described Wubbels as an outstanding nurse and said that “we commend her for putting the patient first.” The arrest prompted the hospital to modify procedures and retrain staff regarding how law enforcement agencies interact with the U.’s health care system, Winchester said.

“Our hope is that the implementation of these new procedures will ensure a situation like this doesn’t happen again,” she said.

Wubbels used part of her settlement money to create a fund to help people obtain body camera footage and also became involved with the American Nurses Association's #EndNurseAbuse campaign.

Utah passed a law in March 2018 which clarified that law enforcement officers in Utah may only obtain a blood sample for a criminal investigation if one of three conditions is met:

They have the individual's or their legal representative's oral or written consent.
They obtain a search warrant.
A judicially recognized exception to the warrant requirement exists, such as exigent circumstances.

Relevant Supreme Court Authority

Missouri V. McNeely, 569 U.S. 141 (2013)

McNeely, stopped for speeding and crossing the centerline, declined to take a breath test to measure his blood alcohol concentration (BAC). He was arrested and taken to a hospital. The officer never attempted to secure a search warrant. McNeely refused to consent, but the officer directed a lab technician to take a sample. McNeely’s BAC tested above the legal limit, and he was charged with driving while intoxicated. The trial court suppressed the test result, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency.

The Missouri Supreme Court and U.S. Supreme Court affirmed. The Court looked to the “totality of circumstances,” declining to announce a per se rule. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.

Circumstances may make obtaining a warrant impractical such that dissipation of evidence will support an exigency, but that is a reason to decide each case on its facts. Blood testing is different in critical respects from other destruction-of-evidence cases; BAC evidence naturally dissipates in a gradual and relatively predictable manner. Because an officer must typically obtain a trained medical professional’s assistance before having a blood test conducted, some delay between the time of the arrest and time of the test is inevitable regardless of whether a warrant is obtained.

Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019)

Mitchell crashed his car near Sheboygan, Wisconsin. When police arrived, they used a breathalyzer to test his blood alcohol content. Mitchell registered a 0.24% BAC and was subsequently arrested for OWI.

As police were driving him to the police station, Mitchell fell unconscious, so the officers drove him to a local hospital where his blood was drawn intravenously. The blood test registered a BAC of 0.22%, well over the legal limit, and Mitchell was charged with drunk driving.

Motion To Suppress BAC Results

Mitchell asked the trial court to exclude the BAC results on the grounds that taking his blood while unconscious was a warrantless search which violated the Fourth Amendment. The trial court refused to exclude the evidence and Mitchell appealed to the US Supreme Court which held that when a driver is unconscious and cannot provide consent for a breath test, the exigent circumstances doctrine allows for a blood test without a warrant.

Criticisms of the Mitchell v. Wisconsin ruling center on its erosion of Fourth Amendment warrant requirements, creation of a broad, new "presumption of exigency", and procedural issues related to the scope of the case itself.

Key criticisms from dissenting justices and legal analysts include:

Undermining the Warrant Requirement: The primary criticism is that the ruling needlessly bypasses the general Fourth Amendment requirement for a warrant, even when police might have time to obtain one. Critics, including Justice Sotomayor, argued that if there is time, a warrant must be secured.

Creation of a De Facto Categorical Exception: The plurality opinion was criticized for establishing an "almost always" (de facto categorical) exigency exception for unconscious drivers, a departure from the "totality of the circumstances" analysis mandated by previous cases like Missouri v. McNeely.

Availability of Modern Warrants: Dissenters argued that the premise that police must choose between attending to medical needs and obtaining a warrant is often "false" in the modern era, as warrants can frequently be secured quickly via phone or email while a suspect is en route to the hospital.

Procedural Impropriety: Justice Gorsuch's dissent, a point echoed by legal scholars, argued the Court overstepped its bounds by resolving the case on the exigent circumstances doctrine, an argument Wisconsin had not adequately presented or relied upon in the lower courts. He felt the case should have been dismissed.

Ambiguity and Inconsistent Application: Legal scholars have noted that the ambiguity surrounding the "presumption" of exigency and the burden of proof has led to differing interpretations and a "patchwork of rules" in state courts, potentially jeopardizing consistent Fourth Amendment protections.

Expansion of Exigency: Some analysts suggest the ruling, by using "broad health and safety language," opens the door for a potentially broad expansion of the exigency exception beyond the specific context of unconscious drivers.

This begs the question whether states can create their own laws which offer more privacy protection than Mitchell? The answer is yes, states can create their own laws and constitutional provisions that provide more privacy protection than the U.S. Supreme Court's ruling in Mitchell v. Wisconsin.

This is because the U.S. Constitution sets the minimum level of protection for individual rights across the country. State supreme courts are the final arbiters of their own state constitutions and have the authority to interpret their state laws to provide greater protections than those guaranteed by federal law, under the doctrine of "adequate and independent state grounds".

This means that states with explicit rights to privacy in their constitutions (such as Alaska, California, Florida, and Washington) or those with more expansive interpretations of their search and seizure clauses may require a warrant for an unconscious driver's blood draw, even if Mitchell suggests it is not always necessary under the Fourth Amendment's minimum standards.

Divergent State Court Rulings: In the wake of Mitchell, some state courts have continued to require a more rigorous application of the "totality of the circumstances" test for exigency, rather than the "almost always" presumption that the Mitchell plurality endorsed.

Legislative Action: State legislatures can pass statutes that impose stricter warrant requirements or clarify the circumstances under which a blood draw is permissible, offering more protection to individuals than federal case law requires.

Therefore, while Mitchell v. Wisconsin outlines the federal standard, individual states have the power to prioritize a higher level of privacy for their citizens through their own laws and judicial interpretations.

An example is the 2025 decision by the Pennsylvania Supreme Court in Commonwealth v. Hunte, 337 A.3d 483, 487 (Pa. 2025).

The court held that, in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.

WASHINGTON LAW

Healthcare providers are generally immune from civil and criminal liability when they collect a blood sample at the direction of a law enforcement officer, provided certain legal conditions are met. Specifically, the Revised Code of Washington (RCW) 46.61.508 states that a qualified person who withdraws blood "shall not incur any civil or criminal liability as a result of the act of withdrawing blood from any person when directed by a law enforcement officer to do so".

Additionally, RCW 18.130.410 states that it is not professional misconduct for specified healthcare professionals to collect a blood sample without a person's consent if they are directed by law enforcement to do so under the provisions of a search warrant, a waiver of the search warrant requirement, or exigent circumstances.

This immunity does not, however, protect the health care professional from civil liability or professional discipline resulting from the use of improper procedures or a failure to exercise the required standard of care in the physical act of drawing the blood itself.

The law enforcement agency requesting the blood draw would be responsible for any issues arising from the lawfulness of the request itself.

Legal References

Bianca Valdez, Everyone Bleeds Guilty: Blood Draws for Law Enforcement Purposes in Light of the HIPAA Privacy Rule and Recent Supreme Court Decisions, 52 UIC J. Marshall L. Rev. 489 (2019).

Tessier W, Keegan W. Mandatory Blood Testing: When can police compel a health provider to draw a patient's blood to determine blood levels of alcohol or other intoxicants?. Mo Med. 2019 Jul-Aug;116(4):274-277. PMID: 31527966; PMCID: PMC6699816.

For more related video: https://youtu.be/81d5VM8xfpM

For Profit Colleges-Buyer Beware

Thu, 13 Nov 2025 20:58:08 GMT

For Profit Colleges - Buyer Beware

I represented more than 85 students who had enrolled in Medical Assistant and Medical Laboratory Assistant programs at a certain “for profit” college owned and operated by a large corporation headquartered out of state and listed on the New York Stock Exchange. The students had taken out large federal loans to pay for the nine to twelve month programs which turned out to be very different than advertised. Among other things, the school misrepresented its national accreditation, its job placement rates, and the transferability of its credits. Many students were told near the end of the program that they had to find and arrange their own clinical externships to graduate on time or be rolled back to the next class and pay more tuition. Some students were expelled for getting sick or missing class and there were no refunds.

What Is a For-Profit College?

A for-profit college is an institution that operates like a business. Its focus and first priority is on earning a profit for its shareholders and meeting the needs of their stakeholders. For-profit colleges operate under an ownership structure and are often subsidiaries of larger corporations traded on the major stock exchange or owned by private equity firms that are focused on profitability.

Caveat Emptor

Caveat emptor is a Latin phrase meaning “let the buyer beware.” It is an old commercial law doctrine that makes buyers responsible for diligently checking the quality and condition of anything before they buy it. In short, the buyer assumes the risk of product defects especially those that were either open and obvious or would have been discoverable had the buyer conducted a reasonable inspection.

The Buyer's Responsibility

The doctrine of caveat emptor places the burden on the buyer to perform due diligence, inspection, and research before completing a purchase. A seller is not liable for defects unless they were actively concealed or misrepresented.

Modern limitations

The doctrine of caveat emptor or buyer beware has been significantly limited in modern times by state and federal consumer protection and warranty laws which hold sellers to a higher standard of disclosure when advertising or selling products or services to the public. Buyers often have less information than the seller about the condition or quality of goods or services they are buying. Defects in the good or service may be known to the seller but hidden or misrepresented by the buyer.

If and when the seller of a product or service has an affirmative legal duty to disclose information to the buyer in various kinds of transactions depends on the facts and circumstances including the relationship between the parties.

Application in real estate

While some states still apply Caveat Emptor to real estate transactions, Washington has laws that require many sellers to disclose known defects in a so-called Form 17.

False and Deceptive Advertising

This could be you next year! We have a career placement office to help you find a high paying job in the medical field within 30 days of graduation. We place 90% of our graduates! We are fully accredited and any course credits will transfer. All of our teachers are highly qualified and provide you with all the classroom instruction and hands on training you need to succeed. Best of all, we help you get money from the federal government to pay for your books and tuition and even a stipend to pay household expenses while you are in school!

What the school did not disclose:

The real post-graduation job placement rate was below 50%. The program was not accredited and credits did not transfer as claimed. The student dropout and loan default rates were high. There were not enough externship slots to go around so many students could not complete the program or graduate on time resulting in rollback and more tuition fees or outright expulsion. Of course, there were no refunds.

The Disclaimer

The school employed a team of commissioned sales representatives to pitch the product and close the deals. At time of closing, the student was required to sign a stack of forms including one document which denied they relied on anything they were told by the sales representatives or school officials, whether true or false. The school’s defense counsel pulled that document out in every deposition and beat the plaintiffs over the head with it while arguing it destroyed any false advertising or fraud claims.

The defendant used aggressive recruitment practices to target low-income students, minorities, single mothers, and veterans who were eligible for federal student aid. High pressure sales tactics were used to get people to sign the day they arrived for a tour and interview. The pitches emphasized 90+% job placement and no or limited money down. They helped prepare and submit all federal loan and grant applications. As soon as the loan was approved, the school was paid in full, $15,000 to $25,000+, which the federal government then had to collect from students who ended up drowning in debt with no reasonable job prospects.

Substandard teaching quality

I learned from my research that there had been many court cases involving students who sued their schools for fraud or breach of contract for allegedly failing to teach them any useful skill or information as they had promised. These cases usually fail because schools cannot promise or guarantee success, which depends in large part on the student’s own abilities, aptitudes, time and effort.

This why our legal claims focused on the school’s statements of fact which we could prove to be false or deceptive by reference to the school’s own records including accreditation, graduation, job placement and loan default rates. This is also why claims were asserted under the state Unfair Business Practices--Consumer Protection Act which prohibits the use of false or deceptive statements to market or sell a product or service and authorizes recovery of both compensatory and punitive damages.

RCW Chapter 19.86 UNFAIR BUSINESS PRACTICES—CONSUMER PROTECTION ACT

Declares unlawful all “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

Forced Arbitration

The student enrollment agreements contained a waiver of the right to jury trial and required any legal claims to be resolved one by one in private arbitration. Private arbitration is a good way to resolve various kinds of claims and can be cheaper and quicker than trial. However, in the school case, we had to arbitrate dozens of cases over several months which was time consuming, costly, and inconvenient to the plaintiffs and their witnesses. Therefore, it was exactly what the defense insisted on doing.

What is Arbitration?

Arbitration is an alternative method of resolving legal disputes in which two parties present their individual sides of a complaint to an arbitrator or panel of arbitrators. The arbitrator decides the rules, weighs the facts and arguments of both parties, and then decides the dispute. Arbitration may be voluntary or mandatory.

What is voluntary arbitration?

In voluntary arbitration, both sides in the dispute voluntarily agree to submit their disagreement to arbitration after it arises, and they have an opportunity to investigate their best options for resolving their claim.

What is forced arbitration?

In forced arbitration, a company requires a consumer or employee to submit any dispute that may arise to binding arbitration as a condition of employment or buying a product or service. The employee or consumer is required to waive their right to sue, to participate in a class action lawsuit, or to appeal. Forced arbitration is mandatory, the arbitrator’s decision is binding, and the results are not public.

What's wrong with arbitration?

Nothing, if its “voluntary” arbitration. In fact, you always have the right to arbitrate. But you never want to give away the right to sue if arbitration does not work. Companies want you to give away that right because they have advantage in arbitration and can evade accountability.

Do companies use forced arbitration in their own disputes with other companies?

No, most refuse to use forced arbitration in their dealings with other businesses. As a matter of fact, car dealers were so afraid of forced arbitration for their disagreements with manufacturers that they spent millions lobbying Congress to pass a federal law that prohibits automobile manufacturers from requiring forced arbitration in disputes related to dealership franchise contracts. The law passed in 2002.

Is arbitration cheaper?

One of the alleged benefits of arbitration is that it costs less than litigation, but frequently this is not true for consumers and employees. Forced arbitration frequently costs more than taking a case to court and can cost thousands of dollars. Individuals often have to pay a large fee simply to initiate the arbitration process. If they are able to get an in-person hearing, individuals sometimes have to travel thousands of miles on their own dime to attend the arbitration. In the end, the loser (usually the individual) often pays the company’s legal fees.

Why do so many consumers and employment and civil rights groups oppose forced arbitration?

Forced arbitration is preferred by companies because it benefits companies, not the employee or consumer. Here are problems and dangers noted by consumer advocates:

Individuals are often unaware they've agreed to forced arbitration. Most Americans have accepted good or services or a job with forced arbitration as a condition; and yet, very few individuals report having noticed a forced arbitration clause in the terms of agreements or contracts they’ve accepted.

Forced arbitration severely limits consumer options for resolving a dispute. Before any problem arises, you lock yourself into only one option—forced arbitration—for resolving all future disputes or problems. The contract typically also names the arbitration company that must be used: the one preferred by the company.

Forced arbitration clauses generally bind the consumer—not the company. The way many forced arbitration clauses are written, the seller retains its rights to take any complaint to court while the consumer can only initiate arbitration.

Arbitration is a private system without a judge, jury, or a right to an appeal. Arbitrators aren't required to take the law and legal precedent into account in making their decisions. There is no appeal or public review of decisions to ensure the arbitrator got it right.

See https://www.consumeradvocates.org/for-consumers/arbitration/

Running It Fifty Times

(Malden to provide insert for this section)

Postscript

Washington State Attorney General's Action: The Washington State Attorney General's office was involved in investigations and collaborative efforts with federal agencies and other states regarding Corinthian Colleges' deceptive practices. While the main, large-scale lawsuits were often led by the U.S. Consumer Financial Protection Bureau (CFPB) and the California Attorney General, Washington's AG actively pursued relief for local students. In 2017 and subsequent years, the WA Attorney General announced that thousands of Washington students who attended Corinthian schools in Tacoma, Seattle, and elsewhere were eligible for millions of dollars in federal student loan discharges as a result of the findings of widespread misrepresentations about job placement rates.

Federal Lawsuits

The CFPB filed a major lawsuit against Corinthian Colleges in 2014, alleging a predatory lending scheme and the use of illegal debt collection practices, which affected students nationwide, including those in Washington. The U.S. Department of Education also fined the company nearly $30 million for misleading students about job prospects, which ultimately led to the closure of the remaining campuses.

More Information

This video from PBS explains why so many students from for-profit schools are left in limbo.

ABC News investigates for-profit schools accused of misleading prospective students about job prospects post-graduation in this video .

Battling Brown Water

Mon, 03 Nov 2025 20:54:18 GMT

Battling Brown Water

Background

My clients received their household drinking water from wells owned and operated by a private water company. The clients and many others in the area who received water from the same wells were getting recurrent brown water that looked and tasted bad, and stained clothing, sinks, bathtubs, and toilets.

Brown well water can indicate a variety of issues, some of which may affect safety depending on the cause of the discoloration, whether it's sediment, minerals, or bacteria. In most cases, you should not drink brown tap water until the cause is identified and the water runs clear. It may often be a little harmless rust flushing through the system but it can be a sign of more serious contamination when the discoloration is persistent.

Lead contamination:

Rusty or corroded pipes, especially in older homes, can be a sign of lead leaching into the water. Lead is a neurotoxin that is particularly dangerous for pregnant women and young children.

Bacterial growth:

Sediment and corroded pipe materials can provide an environment for bacteria to grow. This could lead to gastrointestinal issues or other infections.

Well water contamination :

For homes with private wells, brown water could indicate that heavy rain has caused surface runoff, including harmful bacteria and debris, to enter the well.

Rusty pipes :

Brown water may come from rust or sediment in your pipes, which can be caused by aging pipes, maintenance in the water system, or problems with your water heater. Older homes with iron pipes may experience corrosion over time, leading to rust particles flaking off. Municipalities occasionally flush fire hydrants or repair water mains, which can stir up sediment and rust that has settled at the bottom of the water lines. This can also be caused by pressure changes from construction or even drought.

Water heater issues :

Sediment can build up at the bottom of your water heater. If the tank's sacrificial anode rod is depleted, the tank itself can begin to rust, and you may only notice brown water when using hot water.

High mineral content:

Naturally occurring iron and manganese in your water supply can cause sediment to build up in pipes and stir up, making water appear brown.

Manganese :

Investigation revealed that a few years earlier the company was required to shut down one well and install a special filtration system after brown water testing confirmed manganese levels several times more than the maximum level permitted under government standards.

Manganese is the 12th most plentiful element in the Earth's crust and in the right quantity is a vital nutrient for human bone health, metabolism, and antioxidant functions. It is naturally occurring in many kinds of foods including shellfish, nuts, grains, and leafy vegetables. The mineral is used industrially to strengthen steel and as an important ingredient in batteries, fertilizers, glass and other products.

Manganese is commonly found in sedimentary rock layers such as sands and gravels where the rocks have encountered hot water deep underground—such as some hot springs within the Olympic or Cascade Mountain ranges. Much of the manganese in our region like many rocks laying exposed in yards or on beaches was carried here by glaciers that moved down from Canada and then retreated leaving behind rich mineral deposits including iron and manganese.

High mineral content: The Green River, a major source for Tacoma's drinking water, contains naturally occurring minerals like iron and manganese.

Health Risk

Ingesting too much manganese over extended periods can be harmful, particularly for pregnant mothers, young children, and the elderly. Infants under six months old are particularly vulnerable to manganese neurotoxicity. The EPA advises against using tap water with manganese concentrations above 0.3 mg/L to prepare baby formula. The Washington state DOH adopted the EPA’s recommended maximum secondary contaminant (SCL) standard of 0.05 mg/L.

Adult chronic exposure to very high levels of manganese over many years can lead to nervous system effects in adults, with symptoms similar to Parkinson's disease, such as tremors and an unsteady gait. See: https://harvardpublichealth.org/environmental-health/manganese-in-water-a-threat-to-americans-health/

Aesthetics

Excess levels of manganese can cause brownish-black discoloration, black staining on fixtures, and a metallic taste.

Property damage

High manganese levels can also cause black or brown staining on sinks, toilets, dishes, and laundry. It can precipitate out of the water and build up as sediment in pipes and valves, which can cause reduced water pressure or damage to water-using fixtures and appliances.

The client brought a water sample to a UTC meeting to show why she was complaining about its quality.

DOH Drinking Water Standard

WAC 246-290-310 sets forth the drinking water quality standards adopted and enforced by DOH Office of Drinking Water. This regulation sets the Secondary Maximum Contaminant Level (SMCL) for manganese at 0.05 mg/l.

The law requires water sellers to provide water which meets or exceeds DOH purity standards. Sellers must regularly test and monitor the quality of their water at each well site to make sure its meets the standards and provide summary reports to their customers.

My Argument

My argument was that water which contains manganese levels in excess of 0.05 mg/l is “impure” under RCW 80.28.030 and is unfit for drinking, bathing or showering, hand washing, food preparation, cooking, and oral hygiene.

The proof was in the water company’s own documents which indicated manganese levels at one well of 0.23 mg/l, more than quadruple the maximum permitted level.

One of the wells had manganese which far exceeded the Secondary Maximum Contaminant Levels (“MCL”) set forth in WAC 246-290-310 even though the water company had promised to fix the problem a year ago. The DOH was satisfied with this response but was under the false impression that only one customer had complained about the water quality when in fact there were hundreds of complaints located in the water company’s own service order data system. The company told customers:

“There have been times throughout the year that the product delivered to you has been aesthetically displeasing, but I guarantee it has been safe to drink or cook with.”

Legal regulation of water quality in Washington

Private or investor owned water suppliers are regulated by the DOH and the Washington State Utilities and Transportation Commission UTC). There are currently 46 active water companies regulated by the UTC. https://www.utc.wa.gov/.

The UTC regulates private water companies that meet specific criteria, not public utilities. Companies with 100 or more customer connections fall under UTC oversight or if a company's charges exceed an average of $557 per customer per year. The UTC does not regulate water systems operated by cities, towns, counties, Public Utility Districts (PUDs), cooperatives, or homeowners' associations.

UTC's role in water regulation

The UTC ensures that services are fairly priced, available, and reliable for the companies it regulates. It handles customer complaints regarding billing, rates, and service issues. The UTC does not regulate the rates or services of City, town, or county water systems, Public Utility Districts (PUDs), Cooperatives, or homeowners associations.

Billing, service, or rate complaints :

Contact the UTC if your service is from a qualifying private company.

Water quality or pressure complaints:

Contact the DOH Office of Drinking Water (DOHODW).

Treatment surcharge issue

The Circular Complaint Process

State law made the water company responsible for investigating and addressing customer complaints:

Parents Sued Over Son’s Accident

Mon, 03 Nov 2025 18:32:28 GMT

Parents Sued over Son's Accident

I have represented both plaintiffs and defendants in cases involving the Family Car Doctrine, also referred to as the Family Purpose Doctrine. Many of these cases settle before trial. But this one did not.

The Facts

I represented the parents and their teenage son who was the at-fault driver in an auto accident that went to jury trial in Pierce County Superior Cout. We conceded that the son was at fault for the accident but argued that the parents were not responsible for their son’s negligence under the Family Car Doctrine.

The Verdict

*Insert coming*

The Family Car Doctrine

A person who owns, maintains, or provides a motor vehicle for the use of a member of his or her family is responsible for the acts of that individual in the operation of that motor vehicle. Washington Pattern Jury Instruction 72.05.

Under the family car doctrine, a parent may be held liable for their children’s negligent driving if the plaintiff proves each of the following elements:

(1) the car is owned, provided or maintained by the parent;

(2) for the customary conveyance of family members and other family business;

(3) and at the time of the accident the car is being driven by a member of the family for whom the car is maintained;

(4) with the express or implied consent of the parent.

The family car doctrine is based on agency principles; the members of the family who are permitted to drive the automobile are viewed as the agents of the owners if it is established that they were using the vehicle in furtherance of a family purpose for which it was maintained. The doctrine is based on case law, not statute, so its application depends on the specific facts and circumstances of each case.

Here is an example of implied consent under Washington's Family Car Doctrine, based on patterns of past behavior:

Example

A parent owns a car that is generally available for family use. Their 19-year-old child, who lives at home, has been using the car freely for several years to run errands, visit friends, and get to a part-time job. The parent has never explicitly forbidden the child from taking the car, and it is common for the child to grab the keys and go without asking every single time.

One evening, the child takes the car to go to the store without asking for permission. On the way, the child is distracted and causes an accident. Even though the child did not ask for permission on this specific occasion, a court could find that the parent gave "implied consent" because of their established history and pattern of allowing the child to use the vehicle. The child was using the car for a typical "family purpose" (running an errand), and the parent's past actions demonstrated their implicit approval for such use. Therefore, the parent could be held liable for the damages caused by the accident, even though they were not in the car and did not give explicit permission for that particular trip.

Why it matters

*Insert coming*

Extension to third parties

The parent can also be held liable for the negligent driving of the family car by a third party who is allowed to drive it.

Title ownership is not always determinative

The person identified as the vehicle’s actual registered owner is relevant but not necessarily determinative of liability under the family purpose doctrine. Proof that the vehicle was provided or maintained by a parent for family use may suffice to invoke the doctrine regardless of the name on title or registration documents.

Moreover, mere title ownership is not enough to make the doctrine applicable if the driver was the real owner of the vehicle who had exclusive control and use of it. This is because a vehicle “cannot be maintained for a family purpose if the parent has no control over the use of the vehicle or the activities of the driver.”

Courts will consider a few factors in assessing whether a parent is the “owner” of a vehicle including who paid for the vehicle, who pays for insurance, gas and maintenance, and most importantly, who had the right to control the use of the vehicle.

The parent cannot be held liable for an adult child’s actions under the family car doctrine when the child had been gifted the car, the parent exercises no control over the vehicle, the child does not ask permission to use the vehicle, and the title is solely in the child’s name, even if that child lives at home rent free and receives sporadic financial assistance for gasoline and vehicle repairs. Bearwood v. Thurik , 2010 Wash. App. LEXIS 1307 (Wash. Ct. App., June 14, 2010).

The Negligent Entrustment Doctrine

The Negligent Entrustment Doctrine is an alternative theory that can be used to hold an owner liable for the negligent driving of a third party who they permit to use their vehicle. The key is whether the owner knew or should have known that the person they are loaning their car to is not qualified or competent to drive safely or responsibly.

Proof required

A plaintiff must prove that the owner entrusted their vehicle to someone they knew or reasonably should have known was unfit or incompetent to drive safely. This generally requires more than one or two prior traffic tickets Examples of this include lending a car to someone who does not have a valid driver's license or driving experience, a prior history of DUIs or reckless driving, or is visibly intoxicated or impaired.

NOTE: This article is intended to inform the reader of general legal principles applicable to the subject area. They are not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

Accident On Iceberg Ridge

Mon, 03 Nov 2025 17:55:09 GMT

Accident On Iceberg Ridge

I have represented both plaintiffs and defendants in personal injury cases involving automobiles, motorcycles, and boats, as well as outdoor sports including skiing and climbing.

The Case

I was hired to defend a man who was sued for negligence in Pierce County Superior Court after colliding with another skier near the top of Crystal Mountain.

The Plaintiff’s Negligence Claim

The lawsuit accused my client of skiing out of control and too fast for conditions. The plaintiff argued that my client had a duty to avoid the downhill skier who had the right of way under the Skiing Responsibility Code which is used by many ski resorts throughout North America including Crystal Mountain in Washington.

My Client’s Defense

We conceded that my client had the duty to ski at safe speed and to avoid the downhill skier who had the right of way. But the facts were unique and we believed the plaintiff was actually the one at fault blame. My client testified that he was skiing in control on a relatively narrow trail when the plaintiff made a sudden hockey style stop right in front of him making the collision unavoidable. Our argument was that the plaintiff’s own negligence was the sole proximate cause of the collision which barred his claim.

The Duty to Exercise Reasonable Care

Whether driving a car or a boat or skiing down a mountain, we all have an affirmative legal duty to use reasonable care to maintain control, follow the rules of the road, and avoid doing anything that creates a foreseeable risk of injury to someone else. The failure to exercise reasonable care is called negligence .

The Rules of the Road

When driving a car down the street, you are required to follow published state and local rules of the road which include speed limits. When skiing down Crystal Mountain and many other ski resorts in North America, you are expected and required to follow the Skiing Responsibility Code which is designed to reduce risk of collisions and injuries involving people of widely varying age, ability, and condition. Any relevant violations of the code may be considered by the court and jury as evidence of negligence.

The Skiing Responsibility Code

Always stay in control. You must be able to stop or avoid people or objects.
People ahead or downhill of you have the right-of-way. You must avoid them.
Stop only where you are visible from above and do not restrict traffic.
Look uphill and avoid others before starting downhill or entering a trail.
You must prevent runaway equipment.
Read and obey all signs, warnings, and hazard markings.
Keep off closed trails and out of closed areas.
You must know how and be able to load, ride and unload lifts safely. If you need assistance, ask the lift attendant.
Do not use lifts or terrain when impaired by alcohol or drugs.
If you are involved in a collision or incident, share your contact information with each other and a ski area employee.

https://www.crystalmountainresort.com/the-mountain/safety

Closing Argument

The rules most relevant to our case were:

Always stay in control. You must be able to stop or avoid people or objects. People ahead or downhill of you have the right-of-way. You must avoid them. Stop only where you are visible from above and do not restrict traffic.

Of course the uphill skier has the duty to use reasonable care to avoid the downhill skier who has the right of way. But my client was in control skiing at a reasonable speed for conditions. The collision occurred on a relatively narrow trail and the plaintiff made a sudden, unexpected, hockey style stop right in front of my client who could not swerve off the trail making the collision an unavoidable accident.

Jury Verdict

The jury agreed that the plaintiff’s own negligence was the sole proximate cause of the collision and entered a defense verdict.

Lessons Learned

Jury selection is important. Many people consider skiing an inherently risky activity with frequent accidents, injuries, and collisions.

Rules of the Road are important. The Skiing Responsibility Code does not carry the force and effect of law. However, violations of industry codes may be analyzed and discussed by expert witnesses and considered by jurors as evidence of negligence.

Express and implied assumption of risk. For discussion of liability waivers and releases of claims signed by people engaging in high risk sports, see here .

Facts.

Pellham was inner tubing down the Yakima river when he collided with a fallen tree, injuring himself. He sued the tubing company, Let's Go Tubing, Inc., for negligence, arguing that they knew the log was in the river and warned others but failed to warn him.

The court ruled in favor of Let's Go Tubing, affirming the trial court's decision to dismiss the lawsuit. The Court of Appeals determined that the defense of implied primary assumption of risk applied.

The court's reasoning was based on these key points:

Inherent risk:

The court held that injuries caused by inherent and normal risks of a recreational sport or activity are not the liability of the business.

Voluntary participation:

The court reasoned that when people voluntarily engage in sports and physical activities, they consent to the inherent risks. For assumption of risk to apply, the participant must have a full, subjective understanding of the specific risk and voluntarily choose to encounter it.

Knowledge of potential hazards:

Even though Pellham was not aware of the exact log that caused his injury, he was aware that a swift current, river bends, and fallen trees were potential hazards of inner tubing down the river.

Significance of the ruling

Pellham clarified how the primary implied assumption of risk doctrine applies to sports and recreational activities in Washington state. It reinforces that participants implicitly assume the inherent risks of an activity, which can limit the liability of the businesses providing or hosting those activities. However, the defense has limits and generally does not protect a company from liability for gross negligence or for risks that are not considered inherent to the activity.

Wet Hay Spontaneously Combusts and Destroys Deluxe Barn

Mon, 20 Oct 2025 19:51:04 GMT

CASE STUDY: Thompson v. King Feed & Nutrition Serv., Inc., 153 Wash. 2d 447, 105 P.3d 378 (2005)

Wet Hay Spontaneously Combusts and Destroys Deluxe Barn

Facts:

Our client, Thompson, rented his barn in Enumclaw, Washington to a local feed business to store the hay it collected from several surrounding farms. Thompson was not involved in any aspect of the operation—he simply rented space in his barn for hay storage. Thompson was not an expert in hay collection and storage but the feed company was.

The dry hay was stored on the second story of the barn. Wet hay was stored outside on the north wall of the barn under a lean-to roof. In August 1998, the hay on the north wall caught fire, and the barn and all its contents were destroyed.

Negligence Issues . Fire investigators concluded that the most likely cause of the fire was spontaneous combustion of wet hay which was not dried, stored, or monitored correctly in accordance with industry standards. Spontaneous combustion occurs when wet hay undergoes biological and chemical processes that generate heat, which builds up due to the hay's insulating properties. This self-heating can lead to temperatures of 175-212°F (79-100°C), at which point the hay can spontaneously ignite.

Defendant Denial . The defense denied that the fire was caused by spontaneous combustion of wet hay. They argued that such incidents were common in eastern but not western Washington due to differences in climate and suggested maybe there was an electrical failure. At the close of the case, however, the court granted Malden’s motion for directed verdict on the cause of the fire finding that no reasonable juror would believe the likely cause of the fire was anything but spontaneous combustion of wet hay.

Damages Dilemma. The barn was unique in size, amenities, and construction quality and experts estimated it would cost $500,000 to replace it. The problem was that a barn that cost $500,000 to rebuild would likely add only $300,000 to the overall property value.

The purpose of tort law is to compensate victims who are injured or damaged by the negligence of others. The goal is to provide a remedy that will put the victim or injured party back to the status quo ante —or the exact position they were in before the negligent act caused injury.

Hypothetical:

Your neighbor negligently drives their truck into your outdoor pool and destroys it. Should they be required to pay the cost to rebuild and replace the pool or only to the extent that such a structure will actually increase property fair market value?

The issue is what is the correct measure of compensatory damages for the total destruction of the barn. Was it the cost to repair or replace the barn or the difference in the real property's fair market value before and after the fire?

The “Lesser of” Rule . For damage to real property, the measure of damages is typically the lesser of the following:

Diminution in value: The difference between the property's fair market value immediately before and immediately after the injury.

Cost of restoration: The reasonable cost of repairs necessary to restore the property to its condition before the damage.

The "lesser of" rule aims to fully compensate the victim without providing them an excessive and unreasonable windfall.

Exceptions to the rule. In certain situations, a court may award the higher cost of restoration even if it exceeds the property's diminished value. This is known as the "personal reason" exception. This exception applies when the owner has a genuine personal reason to restore the property to its original condition and the cost of restoration is not grossly disproportionate to the damage. This means that while a jury can give special consideration to an owner's personal attachment, the final award must still be reasonable in the eyes of the law.

Key takeaways:

"Lesser of" rule modified. T he traditional "lesser of" rule (diminution in value vs. cost of repair) is modified in Washington to account for special circumstances.

Personal reasons matter. The owner's personal reasons for restoration are a critical factor. The property must have unique or sentimental value that the market does not capture.

Reasonableness is key . Even with a personal reason, the restoration cost cannot be "unreasonably disproportionate" to the loss in market value. The court ultimately retains control to ensure the award is fair and not an unreasonable windfall for the plaintiff.

For completely destroyed items: For completely destroyed structures, Washington law says the "lesser of" rule does not apply. Instead, the damages may be the reasonable cost to replace the item, so long as it is not unreasonably disproportionate, as determined by the personal reason standard

�� Watch Preventing Haystack Fires

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II. The Constitutional Right to Privacy

III. Invasion of Privacy Claims Under State Common Law

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VI. Invasion of Privacy – Appropriation of Name or Likeness

VII. Invasion of Privacy – False Light Portrayal

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Accident On Iceberg Ridge

Accident On Iceberg Ridge

Jury Verdict

Lessons Learned

The court's reasoning was based on these key points:

Significance of the ruling

Wet Hay Spontaneously Combusts and Destroys Deluxe Barn

CASE STUDY: Thompson v. King Feed & Nutrition Serv., Inc., 153 Wash. 2d 447, 105 P.3d 378 (2005)

Wet Hay Spontaneously Combusts and Destroys Deluxe Barn

Facts:

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Hypothetical:

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Key takeaways: