Government Liability Update

California Supreme Court: Creation of a Dangerous Condition of Public Property in Itself Insufficient to Create Liability

In Metcalf v. County of San Joaquin, filed February 21, 2008, the California Supreme Court rejected an argument that a public entity may be held liable under Government Code section 835 (dangerous condition of public property) merely because its property was in a dangerous condition; or even merely because the entity created the condition.  Instead, the plaintiff must prove either that a negligent or wrongful act of a public employee created the condition; or that the entity had notice of the condition long enough before the accident to take precautions.

The court explained that the creation of a dangerous condition may be evidence that the act of creation was negligent ; but it is not enough to compel a conclusion that the act was negligent.  Instead, the plaintiff must prove either common-law negligence on the part of the employee who created the condition; or notice.

The court also discussed the interaction of this standard with Government Code section 835.4, which provides that public entities cannot be held liable under section 835 if the acts or omissions that created the condition were reasonable.  The court explained that proof of negligent creation does not necessarily negate a finding of reasonableness.  Under section 835.4, the entity may absolve itself from liability for creating or failing to remedy a dangerous condition by showing it would have been too costly and impractical to have done anything else.

Firefighting Immunities Eliminate Public Entity Duties to Fire Victims

People v. Superior Court (United Water Conservation District), published on February 4, 2008, arises out of a suit by the California Department of Forestry and Fire Protection against the real party District, for reimbursement of fire-fighting costs.  The District admitted it started a 2003 forest fire that cost over $3.871 million to combat.  The District alleged that the plaintiff Department was negligent in fighting the fire.  The District asserted affirmative defenses of comparative fault and failure to mitigate damages.  The trial  court allowed the District to pursue these defenses. 

The Court of Appeal issued a writ directing the trial court to grant judgment on the pleadings against the defenses.  It ruled that the fire-fighting immunities under Government Code sections 850, 850.2 and 850.4 were complete immunities that eliminated any duty that the Department owes to persons or property damaged by fire.  The immunities therefore bar any allocation of fault to the Department for the fire's damage.

By comparison, Ovando v. County of Los Angeles, discussed below in an earlier post, held that another Government Code immunity (Goverment Code section 821.6) did not eliminate immune public employees' duties; and therefore did not bar apportionment of fault to those employees under Proposition 51.