Government Tort
Claim Act
How the Supreme Court Sees It
Girard Fisher and Daniel P. Barer
Pollak, Vida & Fisher
Overview of Act
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Tort liability & immunities of public entities:
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Tort liability & immunities of public employees:
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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).
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
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GC 910.4, as amended:
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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:
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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
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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?
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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
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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).
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A family calls 911 because their daughter’s been nearly electrocuted. The dispatcher
puts them on hold.
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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?
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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.
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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
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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.
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Did a special relationship exist between the sheriff ’s department and the
divorcee, obligating the department to protect or warn her?
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No. Only individual employees can enter into special relationships that create
duties of care – not public entities or agencies.
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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 Analysis
Zelig 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).)
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Earlier Supreme Court decisions blurred the distinction
between public entity and employee duty:
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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:
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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]
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A recent Supreme Court case finding employee duty:
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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;
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Munoz, supra.
Dangerous Conditions – The
Physical Defect Requirement
Background: Cases split on physical condition
requirement:
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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]
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In Zelig (again), a divorcee’s ex-husband shoots her in a
courthouse lobby. The courthouse didn’t have metal
detectors.
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Did the absence of metal detectors create a dangerous
condition of public property?
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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
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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.
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Was loss of design immunity a question for the jury?
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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.
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Cornette v. Department of Transportation (2001) 26 Cal.4th 63.
Dangerous Conditions – Police
Immunity
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In Zelig (yet again), plaintiffs’ father shot their mother, his exwife, in a courthouse lobby.
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Did lack of sufficient guards or lack of metal detectors (with
attendants) render the courthouse a dangerous property
condition?
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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 thirdparty attack on public property.
Mandatory Duty Liability
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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.
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Did the municipal code impose a mandatory duty upon the city to record the
notices?
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Yes. Once the city decided to inspect and found instability, the code gave the
city no discretion over whether to record the notice.
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Was the city liable to the landowner for violating its mandatory duty?
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No. The requirement wasn’t intended to protect subsequent buyers; so they
could not sue for its violation.
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Haggis v. City of Los Angeles (2000) 22 Cal.4th 490.
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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
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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.
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Did the county’s failure to protect the victim from foreseeable
third-party violence violate her substantive due process rights?
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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
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A city councilmember alleges that the city attorney conspired with other
councilmembers to hold closed meetings without notice to her.
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Does the councilmember have a cause of action for damages under the Free
Speech Clause of the California Constitution?
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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.
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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
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Nuisance-- yes: Nestle v. City of Santa Monica (1972) 6 Cal.3d 920
(CC 3479).
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Common Carrier Liability -- yes: Lopez v. SCRTD (1985) 40
Cal.3d 780 (CC 2100).
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Teacher’s duty to supervise students -- no: Hoff v. Vacaville
Unified School Dist.(1999) 19 Cal.4th 925 (EC 44807).
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Unfair Practices Act -- no: Trinkle Cal. State Lottery (1999) 71
Cal.App.4th 1198 (B & P 17200).
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CC 1714 -- no: See Zelig.
Do Immunities in the Act Trump
Liabilities Outside the Act?
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Design immunity (GC 830.6) trumps nuisance liability
(CC 3479): Mikkelsen v. State (1976) 59 Cal.App.3d 621.
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Escape immunity (GC 845.8) – should it trump motor
vehicle liability (VC 17000)?
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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
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A public defender representing an accused bank robber decided not to follow
up on a lead that would have provided exculpatory evidence.
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Was the defender immune from liability for her exercise of discretion under
GC 820.2 (discretionary immunity)?
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No. Litigation tactical decisions are “operational” decisions, not “basic
policy” decisions; they merely implement the basic policy decision to provide
representation.
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Barner v. Leeds (2000) 24 Cal.4th 676.
Public Employee Immunities
Outside Code
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More Eastburn: When an injured child’s parents call 911, the dispatcher puts
them on hold.
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Is the dispatcher immune from liability?
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Yes. Health & Safety Code 1799.107 immunizes emergency workers unless
they are grossly negligent or act in bad faith. It applies to dispatchers.
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Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175.
Employee Defense –Who Controls
the Litigation?
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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.
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Must City reimburse Councilmember’s defense costs?
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No. It fulfilled its defense obligations.
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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
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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.
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Must the city reimburse the officers’ defense costs?
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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.
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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
“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.”