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39 S. Cal. L. Rev. 470 (1965-1966)
California Tort Cliams Act: Discretionary Immunity

handle is hein.journals/scal39 and id is 472 raw text is: SOUTHERN CALIFORNIA LAW REVIEW[ CALIFORNIA TORT CLAIMS ACT: DISCRETIONARY IMMUNITY Government operates for the benefit of all; hence, it is reasonable to ex- pect that all should bear some of the burden of the injuries that are wrongfully inflicted by the government. The basic problem is to deter- mine how far it is desirable to permit the loss distributing function of the tort law to apply to public entities without unduly frustrating or in- terfering with the desirable purposes for which such entities exist.1 The California Tort Claims Act of 1963 generally immunizes public entities from liability where individual employees are themselves im- mune.' The most significant individual immunity is found in the legis- lative provision that a public employee is not liable for his discretionary acts within the scope of his employment.3 Discretionary immunity is conferred upon employees by the act to the same extent that it ex- isted under California law prior to the court decisions abrogating the doctrine of sovereign immunity4 which gave rise to the 1963 legisla- tion.' In addition, specific statutory immunities are granted which, al- though regarded as within the ambit of discretionary immunity under pre-existing law, are included for purposes of preventing increased liabil- ity of public agencies by judicially redefining discretionary immunity to exclude certain acts that had previously been considered as discre- tionary.0 These specific provisions grant immunity to a public employee for: non-negligent conduct in executing enactments;' torts of other persons not proximately caused by the employee;8 failure to adopt or enforce an enactment;' injuries caused by conduct related to issuance, suspension, or revocation of licenses under authority of an enactment;' failure to make a health or safety inspection; instituting or prosecut- ing any judicial or administrative proceeding;2 and entry upon prop- erty expressly or impliedly authorized by law.8 Taken as a whole, the discretionary immunity provisions of the act immunize public employees for administrative and quasi-judicial decisions, failure to perform cer- 14 CALIFORNIA LAW REVISION COMMISSION, REPORTS, RECOMMENDATIONS AND STUDIES 810 (1963). 2VAN ALSTYNE, CALIFORNIA GOVERNMENT TORT LIABILITY § 5.33 (Cont. Ed. Bar 1964). 3See CAL. GOV'T CODE § 820.2. 4Muskopf v. Coming Hospital District, 55 Cal. 2d 211, 11 Cal. Rptr. 89, 359 P.2d 457 (1961); Lipman v. Brisbane Elementary School District, 55 Cal. 2d 224, 11 Cal. Rptr. 97, 359 P.2d 465 (1961). 5Infra note 23. 6Supra note 1, at 843. 7CAL. GOV'T CODE § 820.4. 8CAL. GOV'T CODE § 820.8. 9CAL. GOV'T CODE 5 821. 10CAL. Gov'T CODE 5821-2. CAL. GOVT CODE 5821.4. 12CAL. GOV'T CODE § 821.6. 13CAL. GOV'T CODE § 821.8. [Vol. 39

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