A potential client calls asking for representation in a lawsuit
against a city because she recently tripped on a four-inch crack in a public sidewalk and
dislocated her hip.
Or perhaps she was injured when a stoplight malfunctioned, or when
the city failed to honor a contract with her.
After completing the initial client interview and checking your
conflicts of interest database, you review Code of Civil Procedure §335, et seq., to make
sure the statute of limitations has not expired, then draft, file and serve a complaint on
the city, and wait for an answer to arrive.
The first thing you need to know about suing public entities and
their employees is that many of the usual rules for general civil lawsuits do not apply: A
whole host of immunities, restrictions on legal theories, claim presentation requirements,
statutes of limitations and unique procedural and pleading rules must be considered and
addressed. For the most part, these additional rules appear in what is commonly referred
to as the Tort Claims Act, Government Code §§810, et seq. (the
As you prepare your lawsuit and meander your way through the Act, you
will be confronted with five basic questions:
Are you seeking relief against a
person or entity covered by the Act?
Are you pursuing the kind of
relief and/or cause of action covered by the Act?
Can you identify a statutory
basis for liability?
Are there any applicable public
entity or public employee immunities? and
n How do you go about timely and correctly presenting an
administrative claim, and then filing a complaint against, a public entity? In the typical
case, if you consider and address each of these questions, you will avoid many of the most
common pitfalls of those who pursue claims against public entities.
Entities and persons covered
The Act covers claims against local public entities, the
state, and public employees. Public entities include all counties,
cities, districts, public authorities, public agencies and all political subdivisions or
public corporations of the state. The state is defined as any office, officer, department
or division of the state. Public employees include officers, judicial officers, employees
and servants, whether or not compensated.
Because these definitions are so broad, it is best to assume that
unless, and until, you find specific authority to the contrary, all government entities,
their officers and their employees are protected by the claims requirements and
limitations on actions provided under the Act.
Although it is generally referred to as the Tort Claims
Act, the Act covers more than just torts. It covers all claims for money or damages,
regardless of whether they are based upon tort, contract, or any other legal right or
theory. From this broad rule, however, there are several significant exceptions.
Most notably, the Act does not apply to actions for federal civil
rights violations under 42 U.S.C. §1983. For example, federal constitutional claims for
allegedly illegal restrictions on adult bookstores (free speech violations) or racial
discrimination (denial of equal protection) are exempt from the Act. The Act also includes
specific statutory exclusions for workers compensation and inverse condemnation
actions, among others.
Also outside the scope of the Act are lawsuits where the relief
sought is not money or damages. Thus, when the plaintiff primarily seeks injunctive,
declaratory or mandamus relief, it is usually not necessary to satisfy the claim
presentation requirement or otherwise comply with the Act.
Statutory basis for liability
The starting point for establishing liability under the Act is
§815(a) which mandates that, except as otherwise provided by statute, a public entity is
not liable for an injury, whether such injury arises out of an act or omission of the
public entity of a public employee, or any other person. In other words, the Act abolished
common law liability, and, in its place, provided numerous statutory bases for pursuing
claims against public entities.
The most common of these bases is found in §815.2, which allows
suits based on injuries caused by the acts or omissions of public employees. To establish
this vicarious liability, a plaintiff must demonstrate each of the following
three conditions: (a) the individual causing
the injury is an employee; (b) the employees conduct is within the scope of his or
her employment; and (c) the employees act or omission gives rise to a cause of
action against that employee. If the elements of vicarious liability can be established,
the public entity may still avail itself of any defense that would be available to a
private person. For example, a public entity can utilize the doctrine of comparative
negligence in defending an action based on an injury caused by its employee.
In addition to defenses, the general rule is that a public
employees immunity is imputed to his or her public entity employer. Those employee
immunities supplement the independent immunities that are, in all cases under the Act,
always available to public entities. It is critical to recognize that the immunities
provided to public entities are in some instances more expansive than the immunities
afforded to employees. As an example, the fraud immunity for public employees which
does not apply to claims of actual fraud, corruption, and actual malice is narrower
than the fraud immunity for public entities, which covers all injuries caused by the
negligent or intentional misrepresentations of an employee.
In addition to vicarious liability, the public entity may be directly
liable for its own tortious acts. For example, a public entity may be directly liable for
its failure to discharge a mandatory duty which is an enactment
designed to prevent a particular kind of injury. Typical examples of a failure to
discharge a mandatory duty include neglecting to confirm that a building permit applicant
carries workers compensation insurance and is a properly licensed contractor, or
failing to discharge a prisoner after dismissal of all pending charges. In cases of
mandatory duty liability, public entities may rely on any defense that would be available
to a private person or entity but may not utilize any of the public employee immunities.
Public entities may also be liable for dangerous conditions of public
property. Under §835, dangerous condition liability exists if the plaintiff establishes
that the property was in a dangerous condition at the time of the injury, that the
dangerous condition created a reasonably foreseeable risk of the kind of injury which was
incurred, and that either (a) the dangerous condition was caused by a negligent or
wrongful act or omission of a public employee, or (b) the public entity had actual or
constructive notice of the dangerous condition a sufficient time prior to the injury to
have taken measures to protect against the dangerous condition. If these elements are
satisfied, a public entity may still utilize any of several immunities specific to
dangerous condition cases, such as the design immunity and the weather immunity, to avoid
Other statutes, both inside and outside the Act, also impose
liability on public entities. When the statute is outside the Act, it must, as a general
rule, specifically apply to public entities, not merely provide a general statement of
law. For example, Civil Code §1714s general provision relating to liability for
negligence does not serve as a basis for public entity liability. One should note that the
rule against using statutes of general application has a significant exception: The courts
have found that nuisance claims under Civil Code §3479 can be stated against a public
entity under the Act, even though that statute does not specifically apply to public
The Act provides public officials and employees with a broad range of
immunities. Some of the immunities such as the immunity from injuries resulting
from the exercise of discretion vested in a public official apply generally to all
types of claims. Others, however, are geared to specific circumstances, such as police or
fire protection activities, administration of tax laws and activities to abate an
impending peril, among others.
There are additional statutory immunities that are found outside the
Act, including the emergency services immunity (Gov. Code, §§8655, et seq.), the vehicle
pursuit immunity (Vehicle Code, §17004.7), and the immunity provided by Civil Code §47
from defamation actions arising from a publication or broadcast made during
the proper discharge of an official duty during a legislative proceeding.
Before presenting a claim and filing a complaint, it is essential
that you research all of the potentially applicable immunities and fashion your pleadings
appropriately. Public entity attorneys tend to be very familiar with the immunity
provisions and rarely skip an opportunity to file a case-dispositive demurrer or motion
for summary judgment that could have been avoided if the pleadings were more carefully
Preparation of a claim
If you have determined that your client may have a cause of action
that is subject to the Act, you will need to prepare and submit a claim to the public
entity before you file a lawsuit. The time frame for presentation of a claim to the public
entity is governed by §911.2, which requires that claims for personal injury, death,
injury to personal property and to growing crops must be submitted within six months of
their accrual. All other claims must be submitted within a year.
The required content of the claim is governed by §§910 and 910.2. A
cautious attorney should carefully review these sections to ensure that all of the
required information is included. As a practical matter, it may also be wise to use the
public entitys preprinted claim form so that you can avoid later challenges to the
adequacy of the content of the claim.
Once the claim is completed, it should be presented to the local
agency by delivering or mailing it to the clerk, secretary or auditor of the local agency
at its principal place of business. If mailed, the claim is treated as presented on the
date of mailing. If presented to the state, the claim must be delivered or mailed to the
State Board of Control at its principal office.
Action on the claim
If a claim is timely and properly filed, the agency has 45 days to
allow or reject the claim. If it takes no action within that time period, the claim is
Typically, claims are denied. When it is denied, either by action or
inaction, the public entity should send the claimant a notice of denial as required by
§913. This will start a six-month statute of limitations under §945.6, which begins to
run when the notice is personally delivered to the claimant, or the date the notice is
deposited in the mail. If no notice is sent, the complaint
must be filed within two years of accrual of the cause of action.
Filing a complaint
The Act does not contain any specific pleading requirements. However,
case law has established that plaintiffs in actions against public entities must plead
with particularity, showing every fact essential to establish statutory liability and to
avoid any applicable immunities. Cases further hold the complaint must include a statement
of compliance with the Acts claims procedure, or a statement that the claims
procedure is inapplicable. Finally, the factual theories alleged in the complaint must
correspond to those set forth in the claim.
Of course, many additional practical and legal issues must be
addressed in lawsuits against public entities, such as dealing with Joint Powers Insurance
Authorities, understanding the defense and indemnification protocols that cities utilize
on behalf of their employees, and avoiding the pitfalls of the various discovery
privileges that are unique to public entities. But if you have followed the steps and
considered the issues outlined above, you are well on your way to avoiding many of the
most common errors that plaintiffs practitioners make when suing public entities.
Jeffrey T. Melching is an
attorney with Rutan & Tucker, LLP, the largest law firm in Orange County, with one of
the largest public law practice groups in the state. His practice focuses on municipal,
land use and environmental law, and he regularly represents public and private clients in
lawsuits under the Tort Claims Act.