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Government Tort Claim Act. How the Supreme Court Sees It Girard Fisher and Daniel P. Barer Pollak, Vida & Fisher. Overview of Act. Tort liability & immunities of public entities: GC 815-815.6 (liabilities) GC 816-818.9 (general entity immunities)

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government tort claim act

Government Tort Claim Act

How the Supreme Court Sees It

Girard Fisher and Daniel P. Barer

Pollak, Vida & Fisher

overview of act
Overview of Act
  • Tort liability & immunities of public entities:
    • GC 815-815.6 (liabilities)
    • GC 816-818.9 (general entity immunities)
    • GC 830-835.4 (dangerous condition liability, immunities and defenses)
    • GC 844-895.8 (immunities for specific functions).
  • Tort liability & immunities of public employees:
    • GC 820 (employee liability)
    • GC 820.2-823 (general employee immunities)
    • GC 840-840.6 (employee dangerous condition liability and defenses).
  • Claims & actions: GC 900-962.
  • Defense and indemnification of public employees: GC 825-827, 996-996.6.
  • Other (judgments, insurance, joint powers agreements, etc.).
claims new statutes
Claims – New Statutes
  • GC 910.4, as amended:
      • Pre-2003: Claim forms optional for all public entities.
      • 2003-2004: Claim forms mandatory for all public entities and claimants (AB 3000.)
      • August 16, 2004: Claim forms only for state (SB 1102.)
  • GC 915.2, as amended:
      • Mailing extends deadlines.
      • Statute of limitations? (c.f., GC 945.6: “not later than six months after . . . such notice is . . . deposited in the mail.)
claims recent cases
Claims -- Recent Cases
  • Moore v. Twomey (July 21, 2004) 120 Cal.App.4th 163: Complaint deemed filed when delivered to prison authorities. Does this apply to claims too?
  • State of California v. Superior Court (Bodde) (May 24, 2004) 32 Cal.4th 1234: Plaintiff must plead compliance or excuse.
entity liability direct v vicarious liability
Entity Liability -- Direct v. Vicarious Liability
  • Background: Lower Courts hold that CC 1714 provides a statutory basis for direct entity liability under GC 815:
    • Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82 (negligent failure to protect);
    • Ma v. San Francisco (2002) 95 Cal.App.4th 488 (negligence in providing 911 services).
  • A family calls 911 because their daughter’s been nearly electrocuted. The dispatcher puts them on hold.
  • Under CC 1714, by providing 911 service to the public, does a public entity assume a duty of care to the public – so that it can be held directly liable for breaching the duty?
  • No. The entity is only vicariously liable, if the individual dispatcher owed the plaintiff a duty; breached that duty; and is not immune from liability. CC 1714 does not provide statutory basis for entity liability.
  • Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175; disapproving Ma; see also Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112 (discussed further below), disapproving Zuniga.
entity liability special relationships
Entity Liability -- Special Relationships
  • The sheriff’s department provides security for the county courthouse. Deputies learn that a divorcee’s ex-husband is threatening to kill her. The divorcee and the ex-husband are coming to family court for a hearing. In the court lobby, the ex-husband shoots and kills the divorcee.
  • Did a special relationship exist between the sheriff’s department and the divorcee, obligating the department to protect or warn her?
  • No. Only individual employees can enter into special relationships that create duties of care – not public entities or agencies.
  • Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112; Munoz v. City of Union City (2004) 16 Cal.Rptr.3d 521;c.f., Doe 1 v. City of Murrietta (2002) 102 Cal.App.4th 899 .

Employee Liability -- Duty AnalysisZelig and Eastburn shift the focus to employee “duty analysis” – bearing in mind that he or she is liable only  “to the same extent as a private person.”  (GC 820(a).)

  • Earlier Supreme Court decisions blurred the distinction between public entity and employee duty: 
    • Johnson v. State (1968) 69 Cal.2d 782;
    • Thompson v. County of Alameda (1980) 27 Cal. 3d 741.
  • Later Supreme Court decisions differentiated between entity  direct liability (impermissible) and vicarious liability for employees (permissible) – but emphasized the limits of the employees’ duties:
    • Tarasoff v. Regents (1976) 17 Cal.3d 425;
    • Davidson v. City of Westminster (1982) 32 Cal.3d 197;
    • Williams v. State (1983) 34 Cal.3d 18.
duty analysis continued
Duty Analysis [Continued]
  • A recent Supreme Court case finding employee duty:
    • Lugtu v. CHP (2001) 26 Cal.4th 703.
  • Useful DCA cases defining the limits of employee duty:
    • Rodriquez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707;
    • Baker v. City of Los Angeles (1986) 188 Cal.App.3d 902;
    • City of Santee v. County of San Diego (1989) 211 Cal.App.3d 1006;  
    • Thorn v. City of Glendale (1994) 28 Cal.App.4th 1379;
    • Munoz, supra.
dangerous conditions the physical defect requirement
Dangerous Conditions – The Physical Defect Requirement

Background: Cases split on physical condition requirement:

  • Bauman v. City and County of San Francisco (1940) 42 Cal.App.2d 144 ;
  • Quelvog v. City of Long Beach (1970) 6 Cal.App.3d 584;
  • Hayes v. State (1974) 11 Cal.3d 469;
  • Slapin v. Los Angeles International Airport (1976) 65 Cal.App.3d 484;
  • Ducey v. Argo Sales (1979) 25 Cal.3d 707;
  • Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799.
  • Turner v. State (1991) 232 Cal.App.3d 883;
  • Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82.
the physical defect requirement continued
The Physical Defect Requirement[Continued]
  • In Zelig (again), a divorcee’s ex-husband shoots her in a courthouse lobby. The courthouse didn’t have metal detectors.
  • Did the absence of metal detectors create a dangerous condition of public property?
  • No. Liability requires a physical defect in the property, which caused the injury. Mere lack of security (e.g., metal detectors and operators) is not a property defect.
dangerous conditions design immunity
Dangerous Conditions – Design Immunity
  • When a highway was built, it did not have a median barrier. By the time plaintiff’s cross-median accident occurred, changed traffic conditions had rendered the design dangerous. The parties disputed whether Caltrans had notice of the change long enough before the accident that it should have installed barriers – and therefore lost design immunity.
  • Was loss of design immunity a question for the jury?
  • Yes. Although application of design immunity’s a question for the court, if loss of design immunity involves disputed facts a jury resolves that dispute.
  • Cornette v. Department of Transportation (2001) 26 Cal.4th 63.
dangerous conditions police immunity
Dangerous Conditions – Police Immunity
  • In Zelig (yet again), plaintiffs’ father shot their mother, his ex-wife, in a courthouse lobby.
  • Did lack of sufficient guards or lack of metal detectors (with attendants) render the courthouse a dangerous property condition?
  • No. The entity is immune from liability for either failing to provide police protection or failing to arrest third-party attacker – so neither can create dangerous-condition liability for third-party attack on public property.
mandatory duty liability
Mandatory Duty Liability
  • When the defendant city inspects private property and discovers it is unstable, the city’s municipal code requires it to notify the owner and record the notice. The city didn’t record its notices concerning the property at issue The owner sold the property without notifying the buyer of the instability. The property was severely damaged in the Northridge Earthquake.
  • Did the municipal code impose a mandatory duty upon the city to record the notices?
  • Yes. Once the city decided to inspect and found instability, the code gave the city no discretion over whether to record the notice.
  • Was the city liable to the landowner for violating its mandatory duty?
  • No. The requirement wasn’t intended to protect subsequent buyers; so they could not sue for its violation.
  • Haggis v. City of Los Angeles (2000) 22 Cal.4th 490.
  • Query: Does Lockyer v. City & County of San Francisco (August 14, 2004) 33 Cal.4th 1055 expand mandatory duty liability and limit immunity under GC 820.2 (discretion) and 820.4 (execution of laws)?
liability from outside the act federal constitution
Liability from Outside the Act – Federal Constitution
  • In Zelig (last time, we promise), the victim had to attend a family court hearing to resolve her divorce. The courthouse had no metal detectors. State law barred the victim from arming herself in the courthouse.
  • Did the county’s failure to protect the victim from foreseeable third-party violence violate her substantive due process rights?
  • No. She was not in custody, or a custody-like situation; and the county did not take affirmative action that created or increased the danger to her.
liability from outside the act state constitution
Liability from Outside the Act – State Constitution
  • A city councilmember alleges that the city attorney conspired with other councilmembers to hold closed meetings without notice to her.
  • Does the councilmember have a cause of action for damages under the Free Speech Clause of the California Constitution?
  • No. Applying the balancing test for deciding whether the California Constitution creates a cause of action, no such cause of action is necessary hear; the Brown Act and CCP 1085 provide adequate remedies.
  • Degrassi v. Cook (2002) 29 Cal.4th 333; see also Katzberg v. Regents of UC (2002) 29 Cal.4th 300.
liability from outside the act other california statutes
Liability from Outside the Act – Other California Statutes
  • Nuisance-- yes: Nestle v. City of Santa Monica (1972) 6 Cal.3d 920 (CC 3479).
  • Common Carrier Liability -- yes: Lopez v. SCRTD (1985) 40 Cal.3d 780 (CC 2100).
  • Teacher’s duty to supervise students -- no: Hoff v. Vacaville Unified School Dist.(1999) 19 Cal.4th 925 (EC 44807).
  • Unfair Practices Act -- no: Trinkle Cal. State Lottery (1999) 71 Cal.App.4th 1198 (B & P 17200).
  • CC 1714 -- no: See Zelig.
do immunities in the act trump liabilities outside the act
Do Immunities in the Act Trump Liabilities Outside the Act?
  • Design immunity (GC 830.6) trumps nuisance liability (CC 3479): Mikkelsen v. State (1976) 59 Cal.App.3d 621.
  • Escape immunity (GC 845.8) – should it trump motor vehicle liability (VC 17000)?
  • Discretionary acts immunity (GC 820.2) trumps FEHA liability (GC 12900 et seq): Caldwell v. Montoya (1995) 10 Cal.4th 972.
public employee liability discretionary immunity
Public Employee Liability – Discretionary Immunity
  • A public defender representing an accused bank robber decided not to follow up on a lead that would have provided exculpatory evidence.
  • Was the defender immune from liability for her exercise of discretion under GC 820.2 (discretionary immunity)?
  • No. Litigation tactical decisions are “operational” decisions, not “basic policy” decisions; they merely implement the basic policy decision to provide representation.
  • Barner v. Leeds (2000) 24 Cal.4th 676.
public employee immunities outside code
Public Employee Immunities Outside Code
  • More Eastburn: When an injured child’s parents call 911, the dispatcher puts them on hold.
  • Is the dispatcher immune from liability?
  • Yes. Health & Safety Code 1799.107 immunizes emergency workers unless they are grossly negligent or act in bad faith. It applies to dispatchers.
  • Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175.
employee defense who controls the litigation
Employee Defense –Who Controls the Litigation?
  • Councilmember and her city are sued for defamation concerning her statements at a council meeting. City offers her a defense with a reservation of rights and with City controlling litigation and settlement. She refuses and retains her own attorney.
  • Must City reimburse Councilmember’s defense costs?
  • No. It fulfilled its defense obligations.
  • Degrassi v. City of Glendora (9th Cir. 2000) 207 F.3d 636; see Laws v. County of San Diego (1990) 219 Cal.App.3d 189.
employee defense conflict of interest
Employee Defense –Conflict of Interest
  • A city and its police officers were sued for false arrest. The city hired a firm to represent all defendants. Some officers refused to agree to joint representation, and hired their own attorneys.
  • Must the city reimburse the officers’ defense costs?
  • No. If an entity offers an employee a defense, neither an actual nor a potential conflict of interest requires the city to pay for separate counsel for that employee.
  • City of Huntington Beach v. Petersen Law Firm (2002) 95 Cal.App.4th 562
thank you

Girard Fisher and Daniel P. Barer

Pollak, Vida & Fisher

government code 835
Government Code 835

“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either:

“(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

“(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”