I’ve been stewing over this post for a couple of days.
Sovereign immunity always left a sour taste in my mouth. Yes, I understand all the justifications for it. But it still seems like a raw deal a lot of the time.
In California, government immunity (against state law claims) is the rule, and the liability of a public entity is limited to specific statutory exceptions. So . . . you can’t generally sue the government unless one of those exceptions applies (and even then, not until jumping through the necessary administrative hoops). I get that.
But what if the government sues you? Surely, those immunity statutes don’t prevent you from defending on the basis that the government’s conduct contributed to its own damages, either through contributory negligence or failure to mitigate damages, right?
Think again. That’s exactly what those statutes mean, at least the specific sections of the Government Claims Act at issue in People ex rel. Grijalva v. Superior Court (United Conservation Water Dist.), case no. B201881 (2d Dist. Feb. 4, 2008).
This decision doesn’t sit well with me at a gut level — and especially not in light of another recent decision discussed below.
The defendant in United Conservation admitted responsibility for accidentally causing a brush fire, and was sued by the state under Health & Safety Code section 13009, under which the government can recover the costs of fighting a fire from any person responsible for setting it. The defendant asserted affirmative defenses of comparative fault and failure to mitigate damages, contending that although the fire eventually burned 64,000 acres, the state had the fire contained at 1200 acres and could have readily extinguished it completely at that point had it not pulled its firefighters off the line prematurely. In other words, the defendant contended that the state was responsible for most of its firefighting costs because it unnecessarily let the fire get out of hand.
This seems like an eminently reasonable argument to me, but the court of appeal holds that statutory immunity shields the state even from affirmative defenses based on government conduct that would be immune to suit.
Here’s the court’s rundown of the immunity statutes that stand in the defendant’s way:
The immunities created in the Government Code shield public entities, such as petitioner, from liability based on the firefighting methods or tactics they employ. Thus, the Government Code immunizes public entities from liability for injuries caused by the failure “to provide fire protection service[,]” (Gov. Code, § 850), and the failure to “provide or maintain sufficient personnel, equipment or other fire protection facilities.” (Gov. Code, § 850.2.) The statutes preclude an action against a public entity for “failure to arrive at a fire in a timely manner[,]” even where that failure is caused by the firefighters’ negligence or willful misconduct. [Citation.]
So, how does the court get from immunity from liability to immunity from affirmative defenses that would decrease the liability of the defendant being sued by the government? The defendant contended that there is a big difference between suing the government and asserting a defense against it, but the court doesn’t agree:
The affirmative defenses of comparative fault and failure to mitigate damages seek to limit a defendant’s liability for compensatory damages based on the plaintiff’s own fault or inefficiency. Application of either defense here would reduce petitioner’s recovery based on a judge or jury’s finding that petitioner used unreasonable or inefficient methods to fight the fire. This is precisely the line of argument foreclosed by the Government Code. The immunity statutes protect fire fighters and fire fighting entities from incurring a financial penalty based on the “fire protection service[,]” personnel, equipment or other fire protection facilities[,]” they provide, or do not provide. (Gov. Code, §§ 850, 850.2, 850.4.) The statutes mandate that no percentage of fault or liability for fire–related damage may be ascribed to a public entity.
This struck me as just plain wrong. Liability to another party is one thing; responsibility for one’s own damages is another. That is the distinction between suing the government and asserting an affirmative defense against it. I thought the court inadequately explained why it rejected this distinction, and indeed, I didn’t think it should reject it.
The statutes say that the entity will not be “liable” for certain conduct, and to me, liability connotes an obligation to someone else. So I looked to see if “liable” is among the defined terms in the Government Claims Act. It’s not, so, like a famous jurist, I turned to the dictionary to see how this word might be interpreted in the statute. What I found is that some dictionaries define “liable” in terms of obligation or amenity to suit, but others only define it in terms of culpability, regardless of the existence of any legal obligation arising from that culpability.
But the court’s ultimate justification, though it did not play it up as such, is this line it quotes from Munoz v. City of Union City (2007) 148 Cal.App.4th. 173: “In the absence of duty, there can be no tort liability, and no fault can be allocated to a party that is not a tortfeasor.” The court determines that the statutes not only protect public entities from liability for firefighting (or lack thereof), they actually preclude the rise of any duty. Without duty, there can be no tort, and no tortfeasor. And if you’re not a tortfeasor, then according to the court’s reading of Munoz, no fault can be allocated to you.
I have a problem with this reliance on Munoz. Munoz was decided in the context of liability to a plaintiff, not in the assertion of an affirmative defense based on the public entity’s negligence or failure to act.
Moreover, what to make of Ovando v. County of Los Angeles, case no. B186504 (Jan. 18, 2008), decided less than three weeks ago (and after oral argument in United Conservation), in which a different division of the Second District Court of Appeal held that comparative fault had to be apportioned among all tortfeasors, including two police officers that were immune from liability under Government Code section 821.6, in order to fix that portion of plaintiff’s damages that each remaining tortfeasor was responsible for?
In Ovando, plaintiff contended that the comparative fault of the immune officers (who were not parties) need not be calculated and that 100% of the fault should be apportioned only among the non-immune parties (who also happened to be public entities). The Ovando court notes a difference, supported by prior cases, between tortfeasors that are immune from paying for their tortious acts, and those that are not tortfeasors to begin with because the law declares their actions not to be tortious. Comparative fault must be apportioned to the former, but not to the latter. Since Government Code section 821.6 merely provides immunity from payment rather than declare that no duty exists, fault had to be apportioned to the officers.
So at that level, Ovando and United Conservation are consistent. The former allocates fault to police officers who breached a duty but are immune from paying for injuries due to that breach. The latter refuses to allocated fault because the firefighting entity had no duty at all as a result of the immunity statute.
But what makes section 821.6 an immunity from payment for breach of a duty, while sections 850, 850.2 and 850.4 declare that the public entity has no duty that can be breached? The United Conservation court doesn’t explain that, except to say that the “broad grant” of immunity in the statutes “means that public entities owe no duty to persons or property damaged by fire.” But I think you can make a case that section 821.6 grants immunity for something done, while sections 850, 850.2 and 850.4. provide liability for what the public entity fails to do. Hence, no duty.
What is a citizen to conclude from these decisions? In Ovando, the court required allocation of fault to immune tortfeasors, which had the net effect of reducing the liability of the non-immune public entity defendants. In United Conservation, the court refuses to allocate fault to the immune public entity, thus increasing the damages the government can collect. To your average guy on the street, that’s going to look like a rigged game, with the courts deciding whichever way comes out best for the public entity.
Though the legal reasoning may be adequate on its surface, as a matter of public policy, this holding seems crazy — it says that so as long as the government’s damage is initiated by a private party the government can sue, the government can exacerbate its own damages (provided the applicable immunity statutes strip it of any duty to act otherwise) and then collect all of its damages — even those that the public entity is itself responsible for causing — from the private party.
Not all immunity statutes will be read to eliminate a duty, so United Conservation won’t necessarily apply to every case in which a defendant asserts an affirmative defense that implicates the public entity’s actions that are immune from liability. But in this case, the immunity statutes not only protect the government from others, they protect the government from itself!
I’m not alone in not liking the outcome of this case. Professor Martin agrees.