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19 Hastings L.J. 561 (1967-1968)
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). [561]