How to analyze your case for potential governmental immunities
A public entity in California is not liable for a tortious injury caused by an act or omission of a public entity or public employee or any other person, except as otherwise provided by statute. (Gov. Code, § 815(a).) As such, sovereign immunity is the rule in California, and governmental liability is limited to the exceptions set forth by statute. (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409.) The statutes that provide for liability do not need to be part of the Government Claims Act, and do not need to provide specifically on their face that they apply to public entities. (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707.)
The Government Claims Act does include sections that enable tort claims against a governmental entity, which include, among others, Government Code sections 815.2(a), 815.4, and 835. Once a litigant establishes governmental liability after successfully imposing a duty, the next threshold issue is whether any statutory immunity applies to bar the litigant’s cause of action, which is the topic of this article. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 202.) As a practical matter, it is important to understand how each immunity has been applied and whether it applies to your case. Every litigant should be prepared to show that the immunity does not apply, and anticipate that the immunity can be raised by the public entity when denying the claim, answering the complaint, in a demurrer, or by way of a summary judgment motion.
In going over these immunities, keep in mind that in case the public entity is immune, but the employee is not, the public entity has the authority and may have a duty to indemnify the employee. (Gov. Code, § 825-825.6.) Likewise, the fact that a public employee may be immune, does not block the public entity’s liability under Government Code section 815.4. (McCarty v. State of California Department of Transportation (2008) 164 Cal.App.4th 955.) Lastly, a public entity is liable derivatively for an injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would have given rise to a cause of action against that employee. (Gov. Code, § 815.2.)
Gov. Code, § 820.2 – Discretionary acts – public employee immune if exercising discretion
Government Code section 815.2(b) states that a public entity is not liable for an injury if the employee is immune from liability. Government Code section 820.2 then provides that a public employee is immune from liability if the act or omission resulting in injury was the result of the exercise of the discretion vested in the employee, whether or not such discretion was abused. This immunity ensures that public employees who exercise discretionary acts within the scope of their employment will remain immune from lawsuits.
In determining whether an act or omission is discretionary, you have to examine the factual circumstances in light of the basic policy reasons behind this immunity; this reason was summed up by the California Supreme Court as the need for “judicial abstention in areas in which the responsibility for basic policy decisions has been committed to coordinate branches of government.” (Johnson v. State (1968) 69 Cal.2d 782.) As a result, the availability of immunity turns on whether the act or omission constituted an exercise of discretion in the making of a basic policy decision at the planning stage rather than at the operational level of government decision making incident to normal operations, with the latter not being immune. (Barner v. Leeds (2000) 24 Cal.4th 676, 685.) In determining whether an act is discretionary or ministerial (i.e., not immune), one has to determine whether the act or omission involved a conscious balancing of risks or advantages, or whether the act or omission amounted to obedience or orders that leave the officer no choice, where the act or omission was governed by specific statutory or regulatory directives. (Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125.)
Fortunately, case law has limited this “discretionary” immunity to truly basic policy decisions. Moreover, courts have drawn a distinction between a discretionary decision, on the one hand, and negligent implementation of a decision, on the other hand. The examples below will further clarify these policies.
Cases in which immunity applied:
- The decision of the local director of community development to declare a deteriorating residence a nuisance was discretionary. (Ogborn v. City of Lancaster (2002) 101 Cal.App.4th 448, 461.)
- A school counselor’s disclosure of report to mother’s ex-husband, that she was suspected of abusing her children, was a ministerial act implementing a basic policy decision that had already been made. (Cuff v. Grossmont Union High School (2013) 221 Cal.App.4th 582, 594.)
- No county liability for the abuse of a child by an adoptive parent when the pre-adoption investigation was conducted, and the ultimate determination of suitability of the parents constituted a discretionary activity. (County of Los Angeles v. Superior Court (Terrell R.) (2002) 102 Cal.App.4th 627.)
- The decision to expel or re-admit a student involves a policy consideration and the exercise of discretion, and the school district was not liable when the expelled student injured another student. (Thompson v. Sacramento City Unified School District (2003) 107 Cal.App.4th 1352, 1361.)
Cases in which immunity did not apply:
- Excessive use of force by a police officer or negligent performance of a police officer’s duties. (Robinson v. Solano County (9th Cir. 2002) 278 F.3d 1007, 1016.)
- Injury to another results not from the employee’s exercise of discretion, but from negligence in performing it after having made the discretionary decision to do so. (McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 261.)
- Government attorney’s advice to Veterinary Medical Board involved operational issues, not a policy decision. (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 899, 911-912.)
- A police department’s decision to arrest, and then immediately release, an accused molester, in an attempt to induce other accusers to step forward “was not a basic policy decision, but only an operational decision by the police purporting to apply the law. (Gillian v. City of San Marino (2007) 147 Cal.App.4th 1033, 1051.)
- The failure of a police department to take protective measures to deter an officer’s sexual exploitation of young girls who participated in a voluntary police program did not involve the exercise of discretion. (Doe 1 v. City of Murrieta (2002) 102 Cal.App.4th 899, 911-912.)
- The decision of a state employee to hire a contractor known to be negligent or incompetent did not give rise to immunity because there was negligence at the operational level (i.e., ministerial act), rather than at the planning level of decision-making. (Holman v. State of California (1975) 53 Cal.App.3d 317.)
Penal Code section 1618 is even more expansive than Government Code section 820.2(b) in that it shields both agencies and their employees from liability, and applies to all who provide screening, clinical evaluation, supervision, or treatment, and it does not contain a negligence exception.
The thing to remember is that government officials are liable for negligent performance of their ministerial duties, but are not liable for their discretionary acts within the scope of their authority, even if it is alleged that they acted maliciously. (Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211.) Further, there is no requirement of a strictly careful, thorough, formal, or correct evaluation since such a standard would obliterate an immunity designed to protect against claims of carelessness, malice, bad judgment, or abuse of discretion in the formulation of policy. (Caldwell v. Montoya (1995) 10 Cal.4th 972.)
Gov. Code, § 830.6 – Design immunity
Design immunity is codified in Government Code section 830.6. It is one of the most heavily used tools by public entities to avoid liability for dangerous conditions of public property. Please refer to Scott Boyer’s article in this issue, “Proving a Condition of Public Property Is Dangerous,” for an in-depth discussion of this immunity.
Other immunities regarding dangerous conditions
A dangerous condition is defined as a condition that creates a substantial risk of injury when the property is used with due care in a reasonably foreseeable manner. (Gov. Code. § 830.) A public entity’s liability for property defects is governed by the provisions set forth in Government Code sections 830-835.4. These code sections have also been examined in Scott Boyer’s article.
Miscellaneous provisions granting immunity
There are a lot of miscellaneous provisions granting immunity:
- A public entity is immune from punitive damages awarded under section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant (i.e., exemplary damages). (Gov. Code, § 818. However, one may pursue such damages against the public employee. (Austin v. Regents of University of California (1979) 89 Cal.App.3d 354.) Government Code section 818 is not applicable to statutory civil penalties assessed against the public entity, irrespective of actual damages suffered, or a showing of malice. (Kizer v. County of San Mateo (1991) 53 Cal.3d 139.)
- A public entity and its employees are immune from liability for an injury caused by enacting or failing to enact laws, or by failing to enforce any law. (Gov. Code, §§ 818.2, 821.) For instance, in a wrongful death action arising from an accident between people fishing in a canoe and water skiers, public entities were not grossly negligent for a failure to adopt safety ordinances or for failure to enforce speed limits. (Wood v. County of San Joaquin (2003) 111 Cal.App.4th 960.)
However, a negligence claim alleging a county’s breach of a mandatory duty to review water quality monitoring reports was not barred by these immunities because a nondiscretionary act was alleged. (Guzman v. County of Monterey (2009) 178 Cal.App.4th 983.) Note, this immunity applies only in connection with discretionary activities, and not in connection with mandatory duties under Gov. Code, § 815.6. (Walt Rankin & Associates, Inc. v. City of Murrieta (2000) 84 Cal.App.4th 605.)
- A police officer who negligently failed to identify a tortfeasor during his course of investigation of an accident was not entitled to immunity under Gov. Code, § 818.2 or § 820.2 because his negligent act occurred after he had already exercised his discretion to investigate the accident. (Clemente v. State of California (1980) 101 Cal.App.3d 374.)
A public employee is immune from liability for an injury caused by executing or enforcing laws, if done while exercising due care. (Gov. Code, § 820.4.) But this code section does not exonerate a public employee from liability for false arrest or false imprisonment. For instance, a county sheriff was not entitled to immunity for his failure to release a prisoner from county jail after all charges against the prisoner were dismissed. (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710.)
- A public employee is not liable for an injury caused by the act or omission of another person. (Gov. Code, § 820.8.) In general, a police officer is not responsible for acts or omissions of subordinates properly employed by or under him, if such subordinates are not in his private service, but are themselves servants of the government, unless he has directed such acts to be done or has personally co-operated therein. (Michel v. Smith (1922) 188 Cal. 199; but see Rodriguez v. County of L.A. (2014) 2014 US Dist LEXIS 183381, where the Court stated that supervisory defendants were not entitled to immunity for discretionary acts under this section because plaintiffs’ evidence showed that all of the supervising defendants either saw or heard plaintiffs being beaten and that they saw the injuries caused by these beatings.)
- Members of city councils, mayors, members of boards of supervisors, members of school boards, members of governing boards of other local public entities, members of locally appointed boards and commissions, and members of locally appointed or elected advisory bodies are not vicariously liable for injuries caused by the act or omission of the public entity or advisory body. (Gov. Code, § 820.9.) However, nothing exonerates an official from liability caused by the individual’s own wrongful conduct.
- A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property, for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety. (Gov. Code, § 818.6.)
This immunity covers a negligent failure to make an inspection and negligence in the inspection itself, but it does not provide immunity if a public employee who is for example inspecting a building under construction negligently causes a plank to fall on a worker and injures that worker. The purpose of this immunity is to protect public entities from the risk of exposure to liability for virtually all property defects within its jurisdiction.
For instance, in Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, the court barred an action against the city by a property owner who alleged that the city failed to record the result of an inspection following an earthquake which resulted in landslides and lowered property values in the area. (See also Gov. Code, § 821.4.)
- A public employee is not liable for injury caused by instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable case. (Gov. Code, § 821.6.) However, this section is not applicable in cases where the action was not an investigation for the purpose of instituting formal proceedings, but instead was intended for internal administrative purposes. (Quon v. Arch Wireless Operating Co. (C.D. Cal., 2006) 445 F.Supp.2d 1116.) This statute has been given an expansive interpretation to further the rationale for the immunity, which is to protect public employees in the performance of their prosecutorial duties from the threat of harassment through civil suits. (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1043.)
- If a public employee acts in good faith, without malice, and under the apparent authority of an enactment that is unconstitutional, invalid or inapplicable, he is not liable for an injury caused thereby except to the extent that he would have been liable had the enactment been constitutional, valid and applicable. (Gov. Code, § 820.6.)
- A public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked. (Gov. Code, § 818.4; see also § 821.2.)
- A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional. (Gov. Code, § 818.8.) On the other hand, a public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice. (Gov. Code, § 822.2.)
- There is complete immunity for any injury caused by an escaping or escaped prisoner, arrested person, or a person resisting arrest, resulting from a determination whether to parole or release a prisoner, or determination as to the terms and conditions of the parole or release, or whether to revoke the parole or release. (Gov. Code, § 845.8.) Thus, the County and its employees were immune from liability when a female juvenile fell beneath a train and lost both of her legs during her attempted escape from custody. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 920.)
- Generally, a public entity is not liable for providing or failing to provide emergency services. (Gov. Code, §§ 8655-8660.) In addition, Health & Safety Code section 1799.107, which provides in pertinent part that: “(a) A qualified immunity from liability shall be provided for public entities and emergency rescue personnel providing emergency services. (b) Neither a public entity nor emergency rescue personnel shall be liable for any injury caused by an action taken by the emergency rescue personnel acting within the scope of their employment to provide emergency services, unless the action taken was performed in bad faith or in a grossly negligent manner.”
- Neither a public entity nor a public employee is liable for an injury caused by the operation or nonoperation of official traffic control signals when controlled by an emergency vehicle in accordance with the provisions of Section 25258(a) of the Vehicle Code. (Gov. Code § 830.9.)
- A public entity is not liable for any injury proximately caused by any prisoner, or any injury caused to any prisoner. However, a public employee is not immune from liability (i.e., malpractice claims), and the public entity may be required to indemnify the employee. (Gov. Code, § 844.6.)
- As to immunities regarding fire protection activities, both the entity and the public employee are immune from liability for providing inadequate fire protection. (Gov. Code, § 850, § 850.2.)
- The decision of a peace officer, or a state or local law enforcement official to render assistance to a motorist who has not been involved in an accident, or to leave the scene after rendering assistance, upon learning of a reasonably apparent emergency requiring immediate attention elsewhere or upon instructions from a superior to assume duties elsewhere, is deemed an exercise of discretion, and therefore immune from liability. (Gov. Code, § 820.25.) Note that this section will not grant immunity if the act or omission occurred pursuant to the performance of a ministerial duty.
- Neither a public entity, nor a public employee acting in the scope of his employment, is liable for any injury resulting from the condition of fire protection or firefighting equipment or facilities … for any injury caused in fighting fires. (Gov. Code, § 850.4.) For instance, when a firefighter operates a motor vehicle at the scene of a fire as part of efforts to rescue people or property or combat the fire, immunity under § 850.4 exists for any injury from a tortious act or omission in operation of the motor vehicle. However, this immunity does not apply if injury results from a tortious act or omission in the operation of a motor vehicle while proceeding from another location to a fire. (Varshock v. California Dept. of Forestry & Fire Protection (2011) 194 Cal.App.4th 635.)
- Neither a public entity nor a public employee is liable for any injury sustained by the injured person as a result of or in connection with the transportation or for any medical, ambulance, or hospital bills incurred by or in behalf of the injured person or for any other damages, but a public employee is liable for injury proximately caused by his or her willful misconduct in transporting the injured person or arranging for the transportation. (Gov.Code, § 850.8.)
- A public employee is not liable for an injury arising out of his entry upon any property where such entry is expressly or impliedly authorized by law. However, a public employee is liable for an injury proximately caused by his own negligent or wrongful act or omission. (Gov. Code § 821.8.) For instance, section 821.8 barred a tenant’s claim for trespassing against an officer because a warrant authorized entry onto the property and into the structures located thereon for purposes of implementing a nuisance abatement program. (Ogborn v. City of Lancaster (2002) 101 Cal.App.4th 448.)
- Neither a public entity nor a public employee is liable for an injury resulting from the decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community if the decision whether the act was or was not to be performed was the result of the exercise of discretion vested in the public entity or the public employee, whether or not such discretion be abused. Cal. Gov. Code, § 855.4. Therefore, in an action by lessees of a mobile home near an abandoned hospital building which resulted in contraction of a fatal virus, the trial court properly granted the city’s demurrer without leave to amend because the failure to adequately keep the facility germ and bacteria free would not give rise to liability. (Wright v. City of Los Angeles (2001) 93 Cal.App.4th 683.)
- Except for an examination or diagnosis for the purpose of treatment, neither a public entity nor a public employee acting within the scope of his employment is liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination, of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others. (Gov. Code, § 855.6.)
- Any physician or surgeon (whether licensed in this state or any other state), hospital, pharmacist, respiratory care practitioner, nurse, or dentist who renders services during any state of war emergency, a state of emergency, or a local emergency at the express or implied request of any responsible state or local official or agency shall have no liability for any injury sustained by any person by reason of those services, regardless of how or under what circumstances or by what cause those injuries are sustained; provided, however, that the immunity herein granted shall not apply in the event of a willful act or omission. (Gov. Code, § 8659.)
- Except as provided in section 815.6, neither a public entity nor a public employee acting in the scope of his employment is liable for an injury resulting from the failure to admit a person to a public medical facility. (Gov. Code, § 856.4.)
- Juvenile court social workers and other public employees are immune from liability for their conduct during investigation of child abuse unless they acted with malice. (Gov. Code, § 820.21.)
- A public entity is not liable for an injury proximately caused by a patient of a mental institution, or an injury to an inpatient of a mental institution, except as provided in sections 814, 814.2, 855, and 855.2. (Gov. Code, § 854.8.) Therefore, a patient who was involuntarily committed to a county mental institution and was assaulted by a fellow patient was barred from proceeding with her lawsuit since the undisputed facts showed that the medical facility was a public entity and plaintiff was injured by a patient of the mental institution. (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521; see also Gov. Code, § 855 making a public entity liable for injury caused by the failure to provide adequate or sufficient equipment, personnel or facilities.)
- Neither a public entity nor a public employee acting within the scope of his employment is liable for interfering with the right of an inmate of a medical facility operated or maintained by a public entity to obtain a judicial determination or review of the legality of his confinement; but a public employee, and the public entity where the employee is acting within the scope of his employment, is liable for injury proximately caused by the employee’s intentional and unjustifiable interference with such right, but no cause of action for such injury shall be deemed to accrue until it has first been determined that the confinement was illegal. (Gov. Code, § 855.2.)
- Neither a public entity nor a public employee acting within the scope of his employment is liable for injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental illness or addiction or from failing to prescribe for mental illness or addiction. Moreover, a public employee acting within the scope of his employment is not liable for administering with due care the treatment prescribed for mental illness or addiction, unless the injury was proximately caused by negligence or a wrongful act of the public employee. (Gov. Code, § 855.8.)
In addition to the immunities listed in the Government Claims Act, there are certain statutory immunities that are provided outside the Government Claims Act.
- California Vehicle Code section17004 provides that “[a] public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call or when in the immediate pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm or other emergency call.” (Veh. Code § 17004.)
However, a public entity can be held liable for accidents caused by the negligence of its employees when responding to a fire alarm or an emergency call in the line of duty. When the driver of an authorized emergency vehicle responding to an emergency call activates the vehicle’s siren and flashing red lights, his or her conduct is measured by the standard of care that applies to a reasonable person under similar circumstances, including the emergency. However, if the public employee does not activate the vehicle’s siren and lights, the driver’s conduct is governed by the standard of care that applies to a reasonable person under similar circumstances, but excludes consideration of the emergency circumstances. Further, Vehicle Code section 21056 states that section 17004 does not relieve the driver of a vehicle from the duty to drive with due regard for the safety of all persons using the highway.
- Additionally, Vehicle Code section 17004.7 provides that if the public entity has a written policy on vehicular pursuits that meets the criteria of Vehicle Code section 17004.7, the public entity is immune from liability regardless of whether it was the fleeing suspect’s car that caused the injury, death, or damage, or it was a peace officer’s vehicle that was involved in the accident. The critical question is whether the plaintiff’s injury resulted from the collision of a vehicle being operated by a fleeing suspect. (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 128.) Immunity will be applied vigorously to bar liability for injuries caused during police pursuit of suspected offenders. (Cruz v. Briseno (2000) 22 Cal.4th 568, 573-574 [noting that this immunity is not dependent upon use of police flashers or sirens].)
- Vehicle Code section 21053 clarifies that there is no negligence per se for violation of certain safety laws while operating road equipment.
- Civil Code section 847 provides for immunity to public entities resulting from any of twenty-five specified felonies that occur on their property. (Calvillo-Silva v. Home Grocery (1988) 19 Cal.4th 714.)
- Civil Code section 1714.2 establishes an employee’s immunity for administering cardiopulmonary resuscitation.
- Civil Code section 1714.5 sets forth public entity and employee immunity for civil defense shelters and disaster service workers. (See also Gov. Code, § 8655-8660.)
- Streets and Highway Code section 942.5 provides immunity of the county for closed roads under specific circumstances.
- Streets and Highway Code section 954 establishes immunity of the county for dangerous condition on a stock trail.
- Streets and Highway Code section 954.5(e) provides for governmental immunity for “the death of or injury to a vehicle owner, operator or passenger, or for damage to a vehicle or its contents, resulting from a dangerous condition on such highway” if the county (1) has terminated the maintenance of a county highway in the manner prescribed by law, (2) duly recorded its resolution to that effect, and (3) posted signs as required by statute, thereby giving notice to the public that the road is not being maintained.
- Streets and Highway Code 1806 establishes immunity to a city for failing to maintain a street not yet accepted as part of the city’s street system. (See Nelsen v. City of Gridley (1980) 113 Cal.App.3d 87, 97.)
- Streets and Highway Code section 19167 is a special immunity declaring cities and counties not liable for damages to persons or property resulting from earthquake, “on the basis of” any earthquake hazard assessment or evaluation or other actions taken, or not taken, under the Earthquake Hazardous Building Reconstruction Act.
While this list is not exhaustive, it is my hope that this article provides a useful source of information to reference when analyzing your case for potential governmental immunities.
Arash Arjang is an associate at Yarra Law Group, in Fresno, California. He received his undergraduate degree from the University of California at Los Angeles, and his Juris Doctor from Southwestern Law School in 2010, graduating with Honors. He was also an associate editor of Southwestern’s Law Review. Arash currently works in the civil litigation department and practices in a wide array of fields.
Joanna R. Allen is a trial attorney at AlderLaw PC, where she represents plaintiffs in all areas of civil litigation, including catastrophic personal injury, wrongful death, premises liability and insurance bad faith. She is passionate about fighting for the underdog, as she has proven throughout her career focused on litigation. Ms. Allen is a member of the Education Committee of CAALA, and Chair of the Young Lawyers Committee of the Black Women Lawyers Association of Los Angeles. She received her J.D. from Southwestern Law School, and her Bachelor’s Degrees in Journalism-Advertising, Political Science and Spanish from the University of Missouri-Columbia. She is fluent in Spanish. www.alderlaw.com.
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