Notes on the California Tort Claims Act--The Discretionary Immunity Doctrine in California
![handle is hein.journals/hastlj19 and id is 611 raw text is: NOTES ON THE CALIFORNIA TORT CLAIMS ACT
THE DISCRETIONARY IMMUNITY DOCTRINE
IN CALIFORNIA
It is a settled rule in California that governmental officials are
not personally liable for harm resulting from discretionary acts
within the scope of their authority.' This is the case even if it is
alleged that they acted maliciously.2 On the other hand, courts have
repeatedly held that ministerial acts are not within the immunity
rule, and liability will attach to public officers and employees should
harm result from such acts.3 The application of the discretionary
immunity doctrine to the unusual sets of circumstances which find
themselves the subjects of lawsuits has plagued the courts for years.
Currently the doctrine of discretionary immunity is codified in
section 820.2 of the California Government Code:
Except as otherwise provided by statute, 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.
Section 820.2 is part of the Tort Claims Act of 1963,4 which con-
tains provisions of general application to all activities of public entities
and numerous specific immunities covering areas of governmental
activity which the legislature deemed deserving of explicit coverage.5
This note will seek to explore the discretionary immunity doctrine
under section 820.2.
Background of Section 820.2
The trend in the United States in recent years has been to depart
from strict adherence to the doctrine of sovereign immunity.6 This
departure has come about by both judicial7 and legislative action.8
1 E.g., Downer v. Lent, 6 Cal. 94, 95 (1856); Martelli v. Pollock, 162 Cal.
App. 2d 655, 658-60, 328 P.2d 795, 797-98 (1958).
2 E.g., White v. Towers, 37 Cal. 2d 727, 730-32, 235 P.2d 209, 211-12
(1951).
3 E.g., Payne v. Baehr, 153 Cal. 441, 444, 95 P. 895, 896 (1908); Mock v.
City of Santa Rosa, 126 Cal. 330, 344, 58 P. 826, 829 (1899).
4 Cal. Stats. 1963, ch. 1681, § 1, at 3266 (CAL. GOV'T CODE §§ 810-996).
5 See, e.g., CAL. GOV'T CODE § 821 (failure to adopt or enforce enact-
ments), § 846 (failure to arrest or to retain in custody), § 850 (failure to pro-
vide fire department), §§ 850.2-.4 (failure to provide adequate fire equipment,
personnel and facilities), § 856.2 (injury caused by escape of mental patient).
6 A good discussion of this trend may be found in Muskopf v. Corning
Hospital Dist., 55 Cal. 2d 211, 213-17, 359 P.2d 457, 458-60, 11 Cal. Rptr. 89,
90-92 (1961).
7 E.g., Colorado Racing Comm'n v. Brush Racing Ass'n, 136 Colo. 279,
316 P.2d 582 (1957); Molitor v. Kaneland Community Unit Dist., 18 InI. 2d 11,
163 N.E.2d 89 (1959).
8 E.g., Cal. Stats. 1949, ch. 81, § 1, at 259 (repealed 1963); Cal. Stats.
1959, ch. 2, § 3, at 622 (repealed 1963); Cal. Stats. 1959, ch. 3, § 2, at 1653
(repealed 1963).
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Notes on the California Tort Claims Act--The Discretionary Immunity Doctrine in California
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