Johnson v. State

• Decision Date: 04 December 1968
• Court: California Supreme Court
• Parties: , 447 P.2d 352 Ina Mae JOHNSON, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent. L.A. 29565

Page 240

73 Cal.Rptr. 240

69 Cal.2d 782, 447 P.2d 352

Ina Mae JOHNSON, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent.

L.A. 29565.

Supreme Court of California

Dec. 4, 1968.

Rehearing Denied Dec. 30, 1968.

Fizzolio & Fizzolio, James M. Fizzolio, C. Thomas Fizzolio and Albert Vieri, North Hollywood, for plaintiff and appellant.

Edward I. Pollock, Los Angeles, Robert E. Cartwright, San Francisco, Theodore A. Horn, Los Angeles, Robert G. Beloud, Upland, and Leonard Sacks, Los Angeles, amici curiae for plaintiff and appellant.

Thomas C. Lynch, Atty. Gen., and Robert H. O'Brien, Deputy Atty. Gen., for defendant and respondent.

TOBRINER, Justice.

Plaintiff Ina Mae Johnson appeals from the granting of summary judgment in favor of defendant State of California.

In her first amended complaint for personal injuries plaintiff made the following allegations. On or about September 13, 1963, 'defendant, STATE OF CALIFORNIA, acting through Mr. William Baer, Placement Officer of the Youth Authority (an agency of the defendant state), requested Mr. Floyd N. Johnson and Mrs. Ina Mae Johnson to provide a foster home for one Gary Lee Chemlouski, age 16 years.' The Youth Authority acted negligently in allowing 'a 16 year old boy with homicidal tendencies, and a background of violence and cruelty towards both animals and humans to be placed in the home' of Mr. and Mrs. Johnson without 'notice of any dangerous propensities' even though 'defendants * * * had notice of same.' As a result of this negligence on the part of the state, 'plaintiff INA MAE JOHNSON was assaulted by said Gary Lee Chemlouski on September 18, 1963, and suffered the injuries hereinafter described.'

After answering this complaint the state moved for summary judgment, contending that Government Code sections 820.2 and 845.8 granted the state immunity from liability in this situation. The state argued, moreover, that regardless of the disposition of the immunity question, it owed no duty of care to plaintiff. ¹ The trial judge granted the state's motion for summary judgment. Plaintiff appeals from this ruling.

At the outset, we can dispose summarily of the contention, not strenuously pressed by defendant, that the judgment should be affirmed because the state owed no duty of care to plaintiff. As the party placing the youth with Mrs. Johnson, the state's relationship to plaintiff was such that its duty extended to warning of latent, dangerous qualities suggested by the parolee's history or character. (Cf. Langley v. Pacific Gas & Electric Co. (1953) 41 Cal.2d 655, 661, 262 P.2d 846; Crane v. Smith (1943) 23 Cal.2d 288, 296, 144 P.2d 356; Gherna v. Ford Motor Co. (1966) 246 Cal.App.2d 639, 650--651, 55 Cal.Rptr. 94; Crane v. Sears Roebuck & Co. (1963) 218 Cal.App.2d 855, 859, 32 Cal.Rptr. 754; Ellis v. D'Angelo (1953) 116 Cal.App.2d 310, 317, 253 P.2d 675; Rest.2d, Torts, § 301(2)(b).) These cases impose a duty upon those who create a foreseeable peril, not readily discoverable by endangered persons, to warn them of such potential peril. ² Accordingly, the state owed a duty to inform Mrs. Johnson of any matter that its agents knew or should have known that might endanger the Johnson family; at a minimum, these facts certainly would have included 'homicidal tendencies, and a background of violence and cruelty' as well as the youth's criminal record.

The issue before us thus narrows to whether the trial judge's ruling can be sustained on the theory that in the instant situation the state enjoys immunity from tort liability. We shall explain why we have concluded that it wins no such privilege, and that the judgment must therefore be reversed. We shall first set out our reasons for holding that the decision as to whether to advise of latent, dangerous characteristics in the youth did not constitute 'the exercise of discretion vested in (a public employee).' (Gov.Code, § 820.2.) We shall next explain that the statutory provision granting immunity for any 'injury resulting from determining * * * the terms and conditions of (a prisoner's) parole or release' (Gov.Code, § 845.8, subd. (a)) does not control the instant situation. Finally, we shall point out that the employee's failure to warn the Johnsons does not constitute a a 'misrepresentation' supporting immunity (Gov.Code, § 818.8). Since none of the proffered theories of immunity can stand, the granting of summary judgment to the state must be reversed for trial on the merits of plaintiff's personal injury claim.

1. The parole agent, in deciding whether to warn of potentially dangerous propensities of a youth being placed in a foster home, did not engage in a 'discretionary' function within the meaning of Government Code section 820.2.

Section 820.2 of the Government Code provides, in relevant part: '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.' Since, with certain exceptions not applicable here, 'a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability' (Gov.Code, § 815.2, subd. (b)), ³ the employee's successful assertion of the defense of the 'discretionary act' (§ 820.2) would also insulate the defendant state from liability.

a. A semantic inquiry into the meaning of 'discretionary' will not suffice as a criterion for interpreting section 820.2.

In arguing that section 820.2 governs the instant situation, the state relies, in the first instance, on a literal interpretation of 'discretionary.' It contends that 'Mr. Baer * * * had to exercise his professional judgment' as to whether, for example, 'the boy's medical, psychiatric and other institutional records should be given to the foster parents, or if only a part of them should be.' 'Certainly each situation presents different problems, and the parole agent must exercise his discretion as to the manner in which to handle such problems.' (Attorney General's brief, p. 4.) The necessity for the exercise of this discretion, the state concludes, renders section 820.2 literally applicable.

We recognize that several California cases, with confusing and often conflicting results, having embarked on this very type of ambitious analysis, a definition of 'discretion,' then attempt to apply it to a given fact situation. For example, in Elder v. Anderson (1962) 205 Cal.App.2d 326, 331, 23 Cal.Rptr. 48, 51, the court defined discretionary acts as 'those wherein there is no hard and fast rule as to the course of conduct that one must or must not take and, if there is a clearly defined rule, such would eliminate discretion.' (See also Doeg v. Cook (1899) 126 Cal. 213, 216, 58 P. 707; Ne Casek v. City of Los Angeles (1965) 233 Cal.App.2d 131, 134--135, 43 Cal.Rptr. 294; Glickman v. Glasner (1964) 230 Cal.App.2d 120, 125, 40 Cal.Rptr. 719.) 'Generally speaking, a discretionary act is one which requires the exercise of judgment or choice. Discretion has also been defined as meaning equitable decision of what is just and proper under the circumstances.' (Burgdorf v. Funder (1966) 246 Cal.App.2d 443, 449, 54 Cal.Rptr. 805, 809.) Finally, '(a) discretionary act is one which requires 'personal deliberation, decision and judgment' while an act is said to be ministerial when it amounts 'only to * * * the performance of a duty in which the officer is left no choice of his own. '' (Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 942, 41 Cal.Rptr. 508, 511, citing Prosser, Law of Torts (3d ed. 1964) p. 1015.)

We follow equally sound precedent, however, in rejecting the state's invitation to enmesh ourselves deeply in the semantic thicket of attempting to determine, as a purely literal matter, 'where the ministerial and imperative duties end and the discretionary powers begin. * * * (I)t would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail.' (Ham v. County of Los Angeles (1920) 46 Cal.App. 148, 162, 189 P. 462, 468; see generally 2 Harper & James, The Law of Torts (1956) § 29.14, p. 1658; Note, The Discretionary Function Exception of the Federal Tort Claims Act (1953) 66 Harv.L.Rev. 488, 490.)

We cannot escape the pertinence of the above analysis to the instant situation. The parole officer's duty might be classified as 'discretionary': to select for disclosure, from a myriad of possibilities, those elements of the youth's character and background which would be most helpful to the foster parents and yet would not endanger the parole effort. It would be equally plausible, on the other hand, to characterize the officer's duties as embracive of 'ministerial' elements prescribed by the law of torts: to warn of foreseeable, latent dangers.

The leading case rejecting a purely mechanical analysis of 'discretionary' in favor of greater reliance on the policy considerations relevant to the purposes of granting immunity to the governmental agency whose employees act in discretionary capacities is Lipman v. Brisbane Elementary School Dist., supra, 55 Cal.2d 224, 11 Cal.Rptr. 97, 359 P.2d 465. In that case, this court considered a complaint against a school district alleging that three trustees maliciously sought to discredit plaintiff's reputation and thus force her retirement as a teacher. Refusing to rely heavily on a literal analysis of whether defendants exercised 'discretion,' we instead posited immunity on the following compendium of considerations: 'Although it may not be possible to set forth a definitive rule which would determine in every instance whether a governmental agency is liable for discretionary acts of its officials, various factors furnish a means of deciding whether the agency in a particular case...