Ride the Ducks, the tour company fined $308,000 by state regulators after one of its vehicles caused a fatal crash on Highway 99 last fall, is citing a century-old Washington law in an effort to dismiss a Korean family's wrongful death lawsuit.
The family calls the law discriminatory—a vestige of anti-Asian racism in the early 20th century, they say—and their attorney claims it is the only law of its kind in the country.
Twenty-year-old Haram Kim was one of five international students studying at North Seattle College who died in the crash on September 24, 2015. They were on a field trip to Pike Place Market. A Ducks tour operator—driving and narrating simultaneously (a practice since banned by the Seattle City Council)—lost control, and the angular front end of the vehicle slammed into a bus traveling the opposite direction.
Kim was sitting on the driver's side of the bus.
After the crash, her parents, Soon Won Kim and Ju Hee Jeong, flew to Seattle immediately. They held their daughter's hands as she passed away on September 28, according to the lawsuit. She was the eldest of three siblings.
However: An amendment to Washington's wrongful death law added in 1909 allows only parents "who are resident within the United States" at the time of death to claim damages.
"We are desperately seeking the way to nullify this evil discriminatory law," Kim's parents said, in a translated statement sent from South Korea.
In a motion to dismiss the parents' lawsuit against the company, Ride the Ducks argued "the parents do not qualify as statutory beneficiaries." In a separate letter, the company said it would refuse to cover anything beyond medical and burial costs and a nominal amount representing the estate.
In response, in May, the Kim family challenged the constitutionality of the state law in federal court. They believe it violates both the state constitution and the US Constitution's Equal Protection Clause.
"We are simply following the laws that govern these sorts of actions," said Ride the Ducks attorney Pat Buchanan in a statement to The Stranger.
This is not the first time the law has come under fire for being antiquated and exclusionary.
"We've been down [in Olympia] for many years trying to get this changed," said Steve Bulzomi, a private attorney and member of the Washington State Association of Justice. "At the last minute, there have been votes that killed it."
Bulzomi said local municipalities, fearful of greater legal exposure, have been the main source of opposition to reforming the law. He said other parts of the statute are unfair: The law grants damages to the parents of children, but the moment a young adult turns 18, they're entitled to nothing but the worth of the person's estate—often a paltry sum.
"All these young kids from Asia," he said, talking about the five students killed in the Ride the Ducks crash. "Nobody's going to collect anything."
The parents of Mami Sato, another North Seattle College student who died in the crash, filed their own lawsuit against Ride the Ducks on June 14. Sato had been in the country just four days; her family lives in Japan. They too are likely to be denied relief under the law.
"We have to overcome this law before they can sit at the same table as everyone else," said William Schroeder, the Kim family's attorney. "It's, on its face, nativist. It's a kind of Donald Trump's America thing."
The statute was passed in 1909, Schroeder argues, in response to a foreign dockworker's family's recovery of damages from the International Contract Company. The case went to the Washington State Supreme Court, which rejected the company's attempts to evade liability: "We cannot think that workmen were intended to be less protected if their mothers happen to live abroad," the court wrote, citing the "very large amount of foreign labor employed in this state."
Three months later, the legislature overrode the court by amending the law at the urging of the company's attorney, Schroeder argues, "during a period of xenophobic (and particularly anti-Asian) sentiment."
Today, companies like Amazon and Microsoft routinely hire hundreds of employees from India, China, Japan, and Korea on H-1B visas. The employees often leave their parents back home, unwittingly exposing themselves and their families to an unusual level of risk in Washington State. In Seattle, growing numbers of foreign students attend the colleges and universities, and the city is known for welcoming refugees and immigrants to its ranks. Asked for comment on the law's residency requirement, a spokesperson for Mayor Ed Murray said the mayor "supports the state legislature reconsidering its impact."
A hearing in the Kim family's case is scheduled for September.