Governmental Immunity From Tort Liability in California

In California, state government entities are not immune from personal injury and other tort liability unless immunity is expressly provided for by statute or constitutional provision. The California Tort Claims Act provides for such immunity and so governs when a resident of the state can sue the government. To bring a suit against the state, the claimant must comply with a series of complicated procedures and rules that can easily derail a case from going forward.

A California public employee is only immune from liability for personal injury when an accident occurs in the course and scope of the employment, and when there is no evidence of fraud or corruption. However, a public entity will be liable for its employees’ torts if the act or omission that proximately caused the injury would otherwise have given rise to a cause of action. The scope of employment encompasses all of the actions or activities that an employee might reasonably undertake in order to fulfill his or her duties.

A mandatory duty is one imposed on a public entity by statute, constitutional provision, ordinance, or regulation. To establish government liability based on a mandatory duty, a plaintiff must show that: 

• A statute imposes a mandatory duty;
• The statute was intended to protect against the kind of risk suffered by the plaintiff; and
• The public entity's breach of that mandatory duty was a proximate cause of the plaintiff's injury.

Once this has been established, the state is presumed to have been negligent.

Originally, under California law, the government was immune from suits brought for injuries sustained as a result of public property defects. The passage of the California Tort Claims Act in 1963 changed this, providing for government liability when: 

• An injury occurs on property owned or controlled by a public entity;
• There was a dangerous condition on the property;
• The dangerous condition created a reasonably foreseeable risk of this kind of injury;
• Either the dangerous condition was created by the negligent or wrongful act or omission of a public employee acting within the scope of his or her employment, or the public entity had actual or constructive notice of the dangerous condition a sufficient time before the injury to have taken reasonable measures to protect against such injury; and
• The dangerous condition was a proximate cause of the plaintiff’s injury.

A public entity has actual notice of a dangerous condition if it had actual knowledge of the existence of the problem and knew or should have known that it was dangerous. Constructive notice requires that the plaintiff prove that the condition had existed for so long and was so obvious, that in exercising due care, the public entity should have discovered it. 

If you have been injured by a government employee or on government property, it can be difficult to determine who is liable for the harm you have suffered, but an experienced attorney can help. Please call the San Jose personal injury attorneys at Corsiglia, McMahon & Allard, L.L.P. for a free initial consultation.