Randy McMurray Consumer Attorneys Association …

1 Before 1963, governmental tort lia-bility was scattered among legal decisionsand statutes. In 1963, in an effort to clar-ify and simplify the law, the CaliforniaLegislature enacted several interrelatedstatutory provisions which have come tobe known as the Tort Claims Act. This article is an overview of the Actand not a comprehensive discussion ofthe law governing government a complete analysis of Governmentliability, I recommend CEB s CaliforniaGovernment Tort Liability Practice (for-merly known as Van Allstyne s) which wasused liberally for this employeesGenerally, liability and immunityprovisions apply equally to any publicentity or public employee in the stategovernment. Public employees are liablefor torts to the same extent as a privateperson, unless a statutory exceptionapplies. (Gov. Code, 820, subd. (a).)The immunities from liability however,only apply when the tort occurred in thecourse and scope of employment.

2 A pub-lic employee is subject to any defensesthat public employee would have ifhe/she were a private individual. ( , 820, subd. (b).) Thus, if a simi-larly situated private individual wouldbe entitled to a non-statutory defense,then the public employee may also takeadvantage of the public employee is not liablefor any injury caused by that person ssubordinates. (Gov. Code, )Additionally, mayors, city councilpersons,school boards, boards of directors, gov-erning boards or advisory bodies of pub-lic entities are not vicariously liable forinjuries caused by the public entity oradvisory body. (Gov. Code, )Public entities: Respondeat superiorThe principle of respondeat superioris the basis for most of the detailed rulesof liability and immunity found in theAct. Every independent public entity isresponsible, within statutory limits, forthe actionable torts that its employeescommit within the scope of their employ-ment.

3 (Gov. Code, (a).) This prin-ciple is not limited to negligent acts, butincludes intentional torts as well. In addi-tion, respondeat superior applies whenthe employee is liable under a statutoryprovision, not just common law : Application of respondeatsuperior depends upon a breach of aduty of care owed by a public employeeto the Torts: To establish liabilityof a public entity for the acts of itsemployee, the employee must have beenacting within the scope of employment. (Gov. Code, (a).) This dependsupon whether (a) the act performed waseither required or incident to his or herduties or (b) the employee s misconductcould be reasonably foreseen by theemployer in any order to apply the rules ofrespondeat superior, the plaintiff mustalso determine that the individual is apublic employee, and employed by theGovernmental liability:Defenses, immunities and how to avoid themA look at the 1963 Tort Claims Act regarding government liabilityof public entities and their employeesRandy McMurrayConsumer Attorneys Association of Los AngelesSee McMurray , Next Page August 2011 Issueentity which is being sued.

4 The Actdefines public employee as an employ-ee of a public entity, including an officer,judicial officer, servant, whether or notcompensated, but does not include anindependent contractor. (Gov. Code, , )Caveat: Public employees areimmune from personal liability in a sub-stantial number of situations, and theirpersonal immunity usually transfers tothe public entity with whom they areemployed. For example, emergencymedical care (Bus. & Prof. Code, 2395-2398) and false arrest and falseimprisonment by police officers. ( , ; Pen. Code, 847).The general rule of respondeatsuperior is subject to the qualification inthe Government Code section 815, sub-division (b) that statutory liabilities aresubordinated to statutory though a public employee is liablein a certain case, the entity employermay be protected from vicarious liabilityby a statutory the other hand, the entity maybe held liable even though its employeesenjoy statutory immunity.

5 For instance,the liability of a public entity for danger-ous property conditions is directlyimposed by statute without regard for theliability of its employees, and the statuto-ry conditions of employee liability insuch cases are more restrictive than thosethat govern entity that public entities are notliable for punitive damages under anycircumstances. (Gov. Code, 818.)Public entities and independent contractorsA public entity is liable for the tortsof its independent contractors to thesame extent that the public entity wouldbe subject to such liability if it were a pri-vate person. Furthermore, a public entitycannot be liable for an independent con-tractor s act or omission if the publicentity would not have been liable for theinjury had the act or omission been thatof an employee of the public entity.( , ) However, publicentities are liable for torts of their inde-pendent contractors that involve a failureto discharge a non-delegable duty of theemployer.

6 (Gov. Code, )Mandatory duty liabilityWhere a public entity is under amandatory duty imposed by an enact-ment that is designed to protect againstthe risk of a particular kind of injury, thepublic entity is liable for an injury of thatkind proximately caused by its failure todischarge the duty unless the public enti-ty established that it exercised reasonablediligence to discharge the duty. ( , )This duty must be imposed by a con-stitutional provision, statute, charter pro-vision, ordinance, or regulation. ( , ) A regulation is defined asa rule, regulation, order, or standard,having the force of law, adopted by anemployee or agency of the United Statespursuant to the federal AdministrativeProcedure Act. (Gov. Code, )The plaintiff must remember tospecifically allege a cause of action forbreach of the particular enactment thatcreated the mandatory duty. However,whether an enactment is intended to cre-ate a mandatory duty is a question ofinterpretation for the court.

7 The courtwill only impose a mandatory duty if thestatutory language imposes an obligatoryprovision upon the defendant, but notif it is permissive, discretionary or ageneral addition, the injury which iscaused must be of the particular kindthe enactment was designed to protectagainst. Proximate cause must also beproven between the discharge of themandatory duty and the section provides a basis ofdirect entity liability entirely independentof the derivative liability created inGovernment Code, section Inaddition, even if the employees whofailed to discharge the mandatory dutyare immune from personal liability, theemploying entity may still be liable underGovernment Code section Tort Claims Act requires a pub-lic entity, under certain circumstances, toprovide a defense for, and pay any judg-ment, compromise, or settlement basedon a claim against one of its employees,or former employees, for an injury aris-ing out of an act or omission occurringwithin the scope of employment.

8 Theemployee must make a formal request forthis assistance not less than 10 daysbefore the day of the section which states thatpublic entities are not liable for punitivedamages, a public entity, other than thestate, may pay that part of a judgmentagainst an employee or former employeethat is for punitive damages. This will bepaid if the public entity finds that the actor omission occurred during the scope ofemployment; the employee failed to actin good faith, without malice and in thebest interest of the entity; and paymentwould be in the best interest of thepublic , a public entity that hasbeen held liable for its employee s tort isforbidden by statute to seek indemnifica-tion from the culpable employee in mostcases. (Gov. Code, ) Furthermore,the entity s liability insurer has been heldprecluded from any right of subrogationor equitable contribution against aninsurer of the employee under a policycovering the same public entity may obtain reim-bursement from a third party under theLabor Code for workers compensationbenefits paid by the entity.

9 In addition,under the holding of American Motorcycle,a public entity defendant may cross-complain or otherwise seek comparativeequitable indemnity against a 51 (Civ. Code, )limits the liability of public entity defen-dants by ending joint and several liabilityfor noneconomic damages in any actionfor personal injury, property damage, orwrongful death, based upon the principlesof comparative liabilityNothing in the Act s substantive pro-visions affects liability based on contracts.(Gov. Code, 514.) Therefore, govern-mental immunity does not precludeenforcement of contract obligations ofpublic entities. A tortious act or omissionfor which statutory immunity may beavailable may thus be actionable if thefacts lend themselves to pleading andBy Randy McMurray continued from Previous PageSee McMurray , Next Page August 2011 Issueproof on a recognized contract example, the Act declares public enti-ties immune from liability for an injurycaused by misrepresentation by theiremployees.

10 (Gov. Code, ) Butsuch tortious misrepresentation may giverise to a cause of action in contractbecause Government Code section 814preserves the contractual , a plaintiff seeking to recovermoney or damages for a breach ofcontract must timely comply with theclaim presentation requirements ofthe right to obtain specific non-monetary relief ( injunction, man-damus) against public entities or employ-ees is not affected by the Act. (Gov. Code, 814.) Thus, persons adversely affectedby continuing official acts that enjoystatutory immunity from tort liabilitymay obtain injunctive liability provisions of the Act arenot intended to repeal by implication anyprovisions of the Workers CompensationAct. (Gov. Code, )Public entity/employee immunityIt should be noted that the statutoryliabilities must be considered in theaggregate; the liabilities of publicentities are cumulative in nature, sothat the absence of liability under oneprovision does not preclude liabilityunder entities may be immune fromtort liability (as distinguished from beingnon-liable because of a failure of theplaintiff s proof or the establishment ofa successful defense) if:1) No statute imposes liability on thepublic entity;2) The public entity is declared bystatute to be immune from liabilityunder the circumstances of the case; or3) The culpable public employee,whose act or omission is the basis for aclaim of vicarious liability of the publicentity is declared by statute to beimmune under the circumstances of thecase, and the employee s immunity isimputable by statute to the publicentity.