Sava v. Fuller

• Decision Date: 08 March 1967
• Citation: 57 Cal.Rptr. 312,249 Cal.App.2d 281
• Court: California Court of Appeals Court of Appeals
• Parties: Felix SAVA et al., Plaintiffs and Appellants, v. Thomas C. FULLER et al., Respondents, Mark A. Dentinger, M.D., et al., Defendants. Civ. 11375.

Page 312

57 Cal.Rptr. 312

249 Cal.App.2d 281

Felix SAVA et al., Plaintiffs and Appellants, v. Thomas C. FULLER et al., Respondents, Mark A. Dentinger, M.D., et al., Defendants.

Civ. 11375.

Court of Appeal, Third District, California.

March 8, 1967.

Rehearing Denied March 29, 1967.

Hearing Denied May 4, 1967.

Edwin L. Z'Berg, Sacramento, for appellants.

Thomas C. Lynch, Atty. Gen., by Willard A. Shank, Asst. Atty. Gen., and Burton Stanley, Deputy Atty. Gen., Sacramento, for respondents.

PIERCE, Presiding Justice.

In a wrongful death action involving the death of a child, her parents sued both the child's attending physician for malpractice (a count not involved on this appeal), and in a separate count Thomas Fuller, Ph.D., a botanist employed by the state, two Doe defendants (not served), and the state itself. The appeal is from a judgment after an order sustaining without leave to amend the demurrers of the defendants named in this count.

We decide the question whether the complaint did or could state a cause of action against the state, or the botanist, or both. A reversal will follow our decision that the trial judge decided too much, too soon (to obvert Lloyd George's quotation). The principal inquiry will be into the statutory meaning of the words 'exercise of the discretion vested in him' as used in Government Code section 820.2 ¹ to grant immunity to a public employee so acting.

The gravamen of the portions of the complaint with which we are here concerned is that on May 18, 1965, the deceased, a i4-year-old child, was suffering from bronchopneumonia, an illness from which she died the next day; that the state botanist, Dr. Fuller, who was then acting within the course and scope of his employment, was 'retained, employed and requested' by the physician (defendant Dr. Dentinger) to make an analysis of a plant 'substance' the child may have ingested. It is alleged that Dr. Fuller, holding himself out to be an expert in the field of such analysis, with Does III and IV, negligently examined the plant and identified it as 'toxic,' which it was not. Decedent's death is stated to have been the proximate result of the incorrect analysis because the treatment by the physician was thereafter based upon the misinformation that ingestion of toxic materials rather, than bronchopneumonia was the child's ailment.

An early section of the California Tort Claims Act, section 815, provides in part:

'Except as otherwise provided by statute:

'(a) A public entity is not liable for an injury. * * *

'(b) The liability of a public entity * * * is subject to any immunity of the public entity provided by statute * * *, and is subject to any defenses that would be available to the public entity if it were a private person.' (Emphasis supplied.)

As stated in Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, at page 219, 11 Cal.Rptr. 89, at page 94, 359 P.2d 457 at page 462: '(W)hen there is negligence, the rule is liability, immunity is the exception.' The effect of the 1963 legislation, however, is to reverse the formula when a public entity or employee is charged. By section 815 immunity becomes the rule, and we must look to the sections of the act following that section for exceptions. There are many--but with exceptions to the exceptions and exceptions to the exceptions to the exceptions, and so it does sometimes seemingly ad infinitum to the delight of legal scholars and the despair of lawyers and judges.

Section 815.2 covers the vicarious liability of public entities generally. It provides (in subd. (a)) that the public entity is liable for an injury proximately caused by an employee acting within the scope of his employment If the employee's act or omission would have given rise to a cause of action against the employee. Conversely (in subd. (b)), 'Except as otherwise provided by statute' a public entity is not liable when the employee is immune from liability. (Emphasis supplied.)

Section 820.2, the section with which we are particularly concerned, provides: '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.' (Emphasis supplied.)

This section relates specifically to public employees. Section 815.2, subdivision (b), heretofore referred to, however, grants immunity to the public entity whenever its employee enjoys immunity. Therefore, if the employee is immune under section 820.2, so also is the public entity.

The legislative committee comment on section 820.2 stated that the section was intended to restate pre-existing California law. (Van Alstyne, Governmental Tort Liability: A Public Policy Prospectus, 10 U.C.L.A.Rev. 463, 519.) We assume that statement to mean that interpretation of the legislative meaning of the words 'exercise of discretion' are intended to be the same as under pre-existing law. Those are the only words in the section susceptible to interpretation. Inherent ambiguity exists in 'exercise of discretion.' But the Activating words of the section are too clear for interpretation. When there is no ambiguity in a statute there is nothing to interpret. (Gaumer v. County of Tehama, 247 A.C.A. 626, 629, 55 Cal.Rptr. 777; Redevelopment Agency v. Malaki, 216 Cal.App.2d 480, 487--488, 31 Cal.Rptr. 92.) In the phrase 'an injury resulting from * * * (an) act or omission where the act or omission Was the result of the exercise of * * * discretion,' the italicized words have no ambiguity in the language of tort law. A result is the consequence of a cause and cause means proximate cause. It does not include everything that follows after. In short the Legislature has Not granted immunity from liability for every act or omission following after the exercise of discretion.

The words 'exercise of discretion' have had a varied and sometimes an inconsistent, case-law interpretation with efforts at rationalization which to many jurists and legal scholars have not always seemed sound. ²

The question here is not whether there was an exercise of discretion or whether an injury followed from an exercise of discretion. The question is whether the injury was the Result of a discretionary act or omission. This court in Morgan v. County of Yuba, 230 Cal.App.2d 938, 41 Cal.Rptr. 508, had before it a pleading case in which it was alleged that a prisoner had threatened the life of plaintiffs' decedent and the sheriff had promised to give a warning if the prisoner was released on bail. The prisoner was released, the warning was not given, and decedent was killed by the man released. Citing section 820.2 the county claimed it was not liable since its sheriff in failing to warn was performing a discretionary act, even though that discretion may have been abused. We rejected that contention, ruling that when the sheriff promised to act he exercised a discretion but that after he had promised to warn he had exhausted the only discretion involved. In failing to Give the warning he was, if the pleaded facts were proven, merely negligently omitting to perform an act voluntarily assumed. We also disallowed the county's argument that the county was protected (under sec. 815) by the rule that the entity has all defenses available to a private person. We held that a private person, voluntarily assuming a duty, must perform it non-negligently. (See Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48.)

The Morgan case was reviewed and distinguished by our Supreme Court in Heieck and Moran v. City of Modesto, 64 Cal.2d 229, 234, 49 Cal.Rptr. 377, 411 P.2d 105. There the plaintiff had alleged that a city fire department, upon learning its own water supply had failed had negligently failed to summon the tank trucks of the county fair department. Plaintiff's property was damaged by fire. After stating the facts of the Morgan case, the court says (on p. 234, 49 Cal.Rptr. 380, 411 P.2d 108): 'In the present case it is not alleged that any city employee promised or represented that other assistance would be summoned when lack of water in the mains was discovered, and no duty to summon such assistance is either suggested or shown by plaintiff.'

Justice Burke, author of the Heieck and Moran decision, also, as presiding justice of division 4 of the Second District Court of Appeal, wrote the opinion of the court in Glickman v. Glasner, 230 Cal.App.2d 120, 40 Cal.Rptr. 719 (hearing by Supreme Court denied). There a statute required the state 'Kosher Food Law Representative' to visit and inspect meat and poultry packers and markets offering kosher products for sale 'to assure that such products have been properly identified, labeled, segregated, advertised, and otherwise handled in a manner consistent with orthodox Hebrew religious ritual and custom' and to report violations. Defendant rabbi-inspector was charged in the complaint with having libeled plaintiff, a kosher slaughters, by maliciously publishing false reports that plaintiff's poultry was non-kosher to the end that he had been declared disqualified. A summary judgment for defendant was affirmed. The court held the defendant's acts were discretionary. 'Discretionary' acts were defined (on p. 125 of 230 Cal.App.2d, 40 Cal.Rptr. 719) as those involving the exercise of judgment, including even those acts 'incidental and collateral' to the performance of the principal purpose of a public employee's office.

In Ne Casek v. City of Los Angeles (1965) 233 Cal.App.2d 131, 43 Cal.Rptr. 294 (hearing by Supreme Court denied) the complaint, demurrers to which were sustained without leave to amend, alleged that defendant police officers, having arrested two persons known to be dangerous, negligently allowed them to escape. While the hand-cuffed men were running down the sidewalk, they collided with and injured the pedestrian-plaintiff. Judgment of dismissal was...