County of Sacramento v. Superior Court

CourtUnited States State Supreme Court (California)
Citation8 Cal.3d 479,105 Cal.Rptr. 374,503 P.2d 1382
Decision Date19 December 1972
Parties, 503 P.2d 1382 COUNTY OF SACRAMENTO, Petitioner, v. The SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; Jame Powers FEDERER et al., Real Parties in Interest. Sac. 7934. In Bank

Page 374

105 Cal.Rptr. 374
8 Cal.3d 479, 503 P.2d 1382
Jame Powers FEDERER et al., Real Parties in Interest.
Sac. 7934.
Supreme Court of California,
In Bank.
Dec. 19, 1972.
Rehearing Denied Jan. 17, 1973.

Page 375

[503 P.2d 1383] [8 Cal.3d 480] Fitzwilliam, Memering, Stumbos & DeMers and Donald S. Walter, Sacramento, for petitioner.

Evelle J. Younger, Atty. Gen., James E. Sabine, Asst. Atty. Gen., Lloyd Hinkelman and Thomas K. McGuire, Deputy Attys. Gen., as amici curiae for petitioner.

No appearance for respondent.

Colley & McGhee and Nathaniel S. Colley, Sacramento, for real party in interest.

McCOMB, Justice.

Petitioner seeks a writ of prohibition restraining respondent court from proceeding in a wrongful death action filed by real parties in interest against petitioner.

Facts: Real parties in interest allege in their complaint that they are the heirs of Kenneth Jack Federer, who was shot and killed by prisoners in [8 Cal.3d 481] the process of a burglary of the Federer home following their escape from a jail owned and maintained by petitioner. They allege that petitioner was negligent in classifying, supervising, and detaining the prisoners, resulting in their escape, and in failing to pursue the escaped prisoners and warn local residents of their escape. Petitioner demurred to the complaint on the ground that section 845.8, subdivision (b), of the Government Code 1 provides an immunity to public entities for injury caused by an escaped prisoner; but respondent court overruled the demurrer.

Questions: First. Is prohibition an appropriate remedy?

Yes. Prohibition is an appropriate remedy where, as here, it is desirable that an important jurisdictional question presented by the defense of sovereign immunity from suit should be speedily determined. (People v. Superior Court, 29 Cal.2d 754, 756(1), 178 P.2d 1; County of Santa Barbara v. Superior Court, 15 Cal.App.3d 751, 754--755(1, 2), 93 Cal.Rptr. 406 (hg. den.).)

Second. Does section 845.8, subdivision (b), of the Government Code extend immunity to a governmental entity and its employees with respect to both ministerial and discretionary acts of the employees for injury caused by an escaped prisoner?

Yes. Real parties in interest acknowledge that there is immunity with respect to discretionary acts (§ 820.2), but they contend that there is no immunity with respect to ministerial acts and that the alleged acts of petitioner's employees in leaving the jail doors unlocked were ministerial in nature. A study of the history of the California Tort Claims Act (Stats.1963 ch. 1681, p. 3266), however, shows no intention by the Legislature to provide liability for ministerial acts and immunity only for discretionary acts.

Section 815, subdivision (a), specifically provides: 'Except as otherwise provided

Page 376

[503 P.2d 1384] by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.' The Legislative Committee Comment following that section reads, in part: 'This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation. In the absence of a constitutional requirement, public entities may be held liable only if a statute . . . is found declaring them to be liable.' In subsequent sections dealing with functions peculiarly 'governmental' in nature, such as police protection, fire protection, tax [8 Cal.3d 482] administration, and mental hospital administration, liability or immunity has been provided for; and no pattern appears showing immunity only for discretionary acts or omissions.

As originally enacted, section 845.8 read, in part: 'Neither a public entity nor a public employee is liable for . . .. (b) Any injury caused by an escaping or escaped prisoner.' In 1970, the section was amended to extend the immunity to injury caused by an escaping or escaped arrested person or by a person resisting arrest. 2

The immunity granted in section 845.8, subdivision (b), is absolute in terms and must be given effect 'unless it clearly appears that the language used is contrary to what, beyond question, was the intent of the Legislature.' (Breshears v. Indiana Lumbermens Mut. Ins. Co., 256 Cal.App.2d 245, 250, 63 Cal.Rptr. 879, 884.)

Section 856.2 originally provided: (Neither a public entity nor a public employee is liable for an injury caused by an escaping or escaped person who has been committed for mental illness or addiction.' Significantly, in 1970 in the same act in which section 845.8, subdivision (b), was amended to extend its terms to escaping or escaped arrested persons and persons resisting arrest section 856.2 was amended to exclude immunity from liability for injuries caused by, or to, escaping or escaped mental patients where a public employee has acted, or failed to act, out of fraud, corruption, or malice, or where injury to a patient in recapturing him results from a negligent act or omission of a public employee; but no qualification of the immunity regarding escaping or escaped prisoners was enacted. Numerous other related sections amended at the same time likewise provide for certain exclusions of immunity with respect to ministerial acts or omissions, 3 [8 Cal.3d 483] and it must be assumed that if

Page 377

[503 P.2d 1385] the Legislature had intended that there be any such exclusion of immunity with respect to section 845.8, subdivision (b), it would have so provided. Under the circumstances, it is apparent that the Legislature intended the clear, unambiguous exclusion provided for in section 845.8, subdivision (b), to be an absolute exclusion.

In Ne Casek v. City of Los Angeles, supra, 233 Cal.App.2d 131, 43 Cal.Rptr. 294, which involved the question of the liability of a public entity for injury caused by an arrested person in making an escape, the Court of Appeals, while not basing its decision on section 845.8, subdivision (b), because of doubt as to whether an arrested person was a 'prisoner,' examined the legislative history of the section for guidance on the question of whether ministerial negligence in arresting a person, or restraining him after arrest, would create liability and aptly stated at pages 137--138, 43 Cal.Rptr. at page 299: 'Our discussion up to this point has assumed negligence in the decision of the arresting officer to use or not to use a particular force or restraint. While it seems clear from the complaint before us that the gravamen of the charge of negligence against the officers is their failure to keep the two suspects under actual physical restraint, it is perhaps within the ambit of plaintiff's allegations that the reason why they escaped was not a deliberate decision on the part of the officers not to use a particular physical restraint, but that whatever restraint they did decide to use, was clumsily applied. While the negligent execution of a course of conduct previously decided on is certainly more 'ministerial' than the primary decision to engage in such conduct, we do not believe that the public policy which, we think, demands that the choice of method of keeping an arrest effective be subject to immunity, would be furthered by drawing so subtle a distinction. If zeal in making arrests is worthy of being encouraged by not making the deliberate choice of using minimal force subject to review by a judge or jury, this goal would be effectively frustrated by making the manner of executing the course chosen subject to judicial scrutiny in a civil suit for damages such as this one. We accomplish nothing by fanning the officer's ardor one moment and extinguishing it the next.

'It may be worth mentioning in this connection that a similar distinction between choice of plan and execution thereof was urged on the California Law Revision Commission by its distinguished consultant, Professor Van Alstyne, and rejected. In his brilliant 'Study Relating to Sovereign Immunity' (5 California Law Revision Commission 1, 430--432) he discusses the case [8 Cal.3d 484] of Williams v. State of New York, 308 N.Y. 548, 127 N.E.2d 545. In that case it was held that the state was not liable for intentional injury done by a prisoner who had escaped from a minimum security prison. The injury was inflicted for the purpose of making the prisoner's escape good. Professor Van Alstyne urged upon the Law Revision Commission a distinction between the discretionary decision to incarcerate a particular prisoner in a minimum security facility and negligence in the administration of the minimum security correctional program. His suggestion was not accepted by the Commission, nor by our Legislature.'

In Johnson v. State of California, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, this court held that acts or omissions during a continuing relationship of the public entity with the plaintiff following a determination to place in her home for foster care a youth previously committed to the Youth Authority were not encompassed within the immunity of section 845.8, subdivision (a), but had to meet the discretionary immunity requirements of section 820.2 if immunity were to be found. Section 845.8, subdivision (a), however, by its terms is limited to an injury 'resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release.' Section 845.8, subdivision (b), on the other hand, is not limited to specific determinations or acts

Page 378

[503 P.2d 1386] by public employees following which there may be a continuing relationship between the public entity and the plaintiff. Rather, it relates simply to 'Any injury caused by . . . (a)n escaping or escaped...

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