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9 Santa Clara Lawyer 227 (1968-1969)
California Governmental Tort Liability and the Collateral Source Rule

handle is hein.journals/saclr9 and id is 241 raw text is: CALIFORNIA GOVERNMENTAL TORT LIABILITY AND THE COLLATERAL SOURCE RULE Kenneth G. Nellis* INTRODUCTION The California Supreme Court in 1961 abrogated the common law doctrine of governmental immunity in the landmark case of Muskopf v. Corning Hospital District.' After a two year moratorium period, during which time the legal and fiscal problems created thereby were studied by the California Law Revision Commission,2 comprehensive legislation applicable to all public entities was en- acted. This legislation is commonly known as the California Tort Claims Act of 1963.8 The basic principle underlying this law is that public entities may be held liable only if a statute declares them liable, i.e., all common law or judicially declared forms of liability are abolished.4 In over five years of operation under the 1963 act, numerous decisions interpreting it have been handed down. The first cases were primarily concerned with the constitutionality and retroactivity of the act.5 Without exception, the courts have upheld its validity * A.B. 1950, College of William and Mary; J.D. 1953, University of Illinois. Mr. Nellis is an attorney for the Department of Public Works of the State of California, specializing in tort litigation. The views herein expressed are those of the author and not necessarily those of the State of California or the Department of Public Works. 1 55 Cal. 2d 211, 359 P.2d 457 (1961). The Muskopi decision has received con- siderable attention by legal commentators. See, e.g., Kennedy & Lynch, Some Problems of a Sovereign without Immunity, 36 S. CAL. L. REV. 161 (1963) ; Note, Torts: Governmental Immunity, 9 U.CiL.A.L. REV. 266 (1962); Note, Torts: Sovereign Immunity: Scope of Doctrine Severely Limited in California, 49 CALU. L. REV. 400 (1961); Comment, Governmental Immunity from Tort Liability, 34 S. CAL. L. REV. 346 (1961). See also Van Alstyne, Governmental Tort Liability: Judicial Lawmaking in a Statutory Milieu, 15 STAN. L. REV. 163 (1963) ; and Van Alstyne, Governmental Tort Liability: A Public Policy Prospectus, 10 U.C.L.A.L. REV. 463 (1963). 2 Cal. Stats. 1961, ch. 1404, effective September 15, 1961; 4 CAL. LAw REVISION COMM'N REP., REC. & STUDIES 801 (1963); 5 'CAL. LAW REVISION COMM'N REP., REC. & STUDIES 1 (1963). 3 Cal. Stats. 1963, ch. 1681, which enacted California Government Code sections 810-895.8, and Cal. Stats. 1963, ch. 1715, which enacted California Government Code sections 900-978.8. Although the act has no official title, the supreme court has referred to it as the 1963 Tort Claims Act in Johnson v. State, 69 A.C. 813, 447 P.2d 352 (1968) and Becker v. Johnston, 67 Cal. 2d 163, 430 P.2d 43 (1967). 4 CAL. GOV'T CODE § 815 (West 1966); Datil v. Los Angeles, 263 A.C.A. 717, 69 Cal. Rptr. 788 (1968) ; Sava v. Fuller, 249 Cal. App. 2d 281, 57 Cal. Rptr. 312 (1967). 5 Cal. Stats. 1963, ch. 1681, § 45(a), p. 3288, provides: This act applies retro- actively to the full extent that it constitutionally can be so applied.

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