According to Gov. Code § 820.2, "A public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused."
This issue presented: Whether there is a duty of care when government officials are involved, where they fail to warn of dangerous conditions. Or, as the defendants argued, whether the decision not to warn of dangerous conditions was a "discretionary" act, triggering Gov. Code §820.2 immunity.
FACTS OF THE CASE:
The Complaint.
Mr. and Mrs. Johnson filed a complaint alleging that the defendant STATE OF CALIFORNIA, acting through Mr. William Baer, Placement Officer of the Youth Authority [an agency of the defendant state], requested that the Johnsons provide a foster home for one Gary Lee Chemlouski, age 16 years." The Youth Authority acted negligently in allowing "a 16 year old boy with homicidal tendencies, and a background of violence and cruelty towards both animals and humans to be placed in the 785 home" of Mr. and Mrs. Johnson without "notice of any dangerous propensities" even though "defendants ... had notice of same." As a result of this negligence on the part of the state, " Mr. and Mrs. Johnson were assaulted by Gary Lee Chemlouski, causing injuries."
The States Answer.
The state moved for summary judgment claiming that Government Code sections 820.2 and 845.8 granted the state immunity from liability in this situation, and that of the immunity question, it owed no duty of care to plaintiff.
The trial judge granted the state's motion for summary judgment. Plaintiff appeals from this ruling.
The Supreme Court Ruling.
1. The Duty of Care
Held: A duty impose a duty upon those who create a foreseeable peril, not readily discoverable by endangered persons, to warn them of such potential peril. Citing Gherna v. Ford Motor Co. (1966) 246 Cal. App.2d 639, 650-651; Crane v. Sears Roebuck & Co. (1963) 218 Cal. App.2d 855, 859; Ellis v. D'Angelo (1953) 116 Cal. App.2d 310, 317.
2. The decision as to whether to advise of latent, dangerous characteristics in the youth did not constitute "the exercise of the discretion. As such, Gov. Code, § 820.2 immunity does not apply.
2. The decision as to whether to advise of latent, dangerous characteristics in the youth did not constitute "the exercise of the discretion. As such, Gov. Code, § 820.2 immunity does not apply.
Johnson went further giving meaning to the term "discretionary" for future litigation.
First, stating that courts should not casually decree governmental immunity; through a literal interpretation of "discretionary" or otherwise, [that] 820.2 should not be made a "catchall section broadly encompassing every judgment exercised at every level.... [That,] to borrow the language of Justice Frankfurter ... [would be] to make the act `self-defeating by covertly imbedding the casuistries' of some of the pre-Muskopf cases." (Sava v. Fuller, supra, 249 Cal. App.2d 281, 291.) [that the 1963 Tort Claims Act alter the basic teaching of Muskopf v. Corning Hospital Dist., supra, 55 Cal.2d 211, 219 " (1961), that when there is negligence, the rule is liability, immunity is the exception."]
Next, stating that "the existence of... alternatives facing the employee does not perforce lead to a holding that the governmental unit thereby attains the status of non-liability under section 820.2. These alternatives may well play a major part in the resolution of the substantive question of negligence; they do not, however, dispose of the threshold question of immunity.
First, stating that courts should not casually decree governmental immunity; through a literal interpretation of "discretionary" or otherwise, [that] 820.2 should not be made a "catchall section broadly encompassing every judgment exercised at every level.... [That,] to borrow the language of Justice Frankfurter ... [would be] to make the act `self-defeating by covertly imbedding the casuistries' of some of the pre-Muskopf cases." (Sava v. Fuller, supra, 249 Cal. App.2d 281, 291.) [that the 1963 Tort Claims Act alter the basic teaching of Muskopf v. Corning Hospital Dist., supra, 55 Cal.2d 211, 219 " (1961), that when there is negligence, the rule is liability, immunity is the exception."]
Next, stating that "the existence of... alternatives facing the employee does not perforce lead to a holding that the governmental unit thereby attains the status of non-liability under section 820.2. These alternatives may well play a major part in the resolution of the substantive question of negligence; they do not, however, dispose of the threshold question of immunity.
Instead, the court distinguished between "planning" and "operational" levels of decision-making (cf. Dalehite
v. United States, supra, 346 U.S. 15, 35-36 [97 L.Ed. 1427,
1440-1441, 73 S.Ct. 956]), the latter not immune. [To maintain a Separation of Powers]
AND [furthermore] that "to be entitled to immunity the state must make a showing that such a policy decision, [that] consciously balancing risks and advantages, took place. The fact that an employee normally engages in `discretionary activity' is irrelevant if, in a given case, the employee did not render a considered decision.
APPLYING THESE CONCLUSIONS TO THE CASE BEFORE IT, the Johnson Court found the decision to grant parole to be the resolution of policy considerations, entrusted by statute to a coordinate branch of government, that compels immunity from judicial reexamination. However, to the extent that a parole officer consciously considers pros and cons in deciding what information, if any, should be given the foster parents of latent dangers facing them, he makes such a determination at the lowest, ministerial rung of official action, and no immunity applies.
SUBSEQUENT HISTORY:
AND [furthermore] that "to be entitled to immunity the state must make a showing that such a policy decision, [that] consciously balancing risks and advantages, took place. The fact that an employee normally engages in `discretionary activity' is irrelevant if, in a given case, the employee did not render a considered decision.
APPLYING THESE CONCLUSIONS TO THE CASE BEFORE IT, the Johnson Court found the decision to grant parole to be the resolution of policy considerations, entrusted by statute to a coordinate branch of government, that compels immunity from judicial reexamination. However, to the extent that a parole officer consciously considers pros and cons in deciding what information, if any, should be given the foster parents of latent dangers facing them, he makes such a determination at the lowest, ministerial rung of official action, and no immunity applies.
SUBSEQUENT HISTORY:
"In Barrier v. Leeds (2000) 24 Cal.4th 676, 102 Cal.Rptr.2d 97, 13 P.3d 704, this court rejected a request by 59 California cities and towns that we reconsider and overrule our 1968 decision in Johnson, supra, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352. We observed in Barner that the principles set forth in Johnson reflected more than three decades of authoritative precedent, and that the Legislature during that time had made no changes to the governmental immunity provision of section 820.2 addressed in Johnson. (Barrier v. Leeds, supra, 24 Cal.4th at p. 685, fn. 2, 102 Cal.Rptr.2d 97, 13 P.3d 704.)" Perez-Torres v. State 42 Cal.4th 136 (2007)A FEW OF MANY CITING CASES:
The scope of the discretionary act immunity `should be no greater than is required to give legislative and executive policymakers sufficient breathing space in which to perform their vital policymaking functions.'[Citation]"Salazar v. Upland Police Department Court of Appeal, 4th Dist., Div. 2 (2004)
For immunity to apply, the defendants must show that the decisions in question are properly considered as " `basic policy decisions "made at the" planning "stage of [the entity's] operations,'" rather than "routine duties incident to the normal operations" of the employee's office or position." Taylor v. City of Los Angeles 144 Cal.App.4th 1216
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