COUNTY OF SACRAMENTO, Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; JANE POWERS FEDERER et al., Real Parties in Interest, 8 Cal. 3d 479

Opinion McCOMB, J. Petitioner seeks a writ of prohibition restraining respondent court from proceeding in a wrongful death action filed by real parties in interest against petitioner. Facts: Real parties in interest allege in their complaint that they are the heirs of Kenneth Jack Federer, who was shot and killed by prisoners in the process of a burglary of the Federer home following their escape from a jail owned and maintained by petitioner.

They allege that petitioner was negligent in classifying, supervising, and detaining the prisoners, resulting in their escape, and in failing to pursue the escaped" prisoners and warn local residents of their escape. Petitioner demurred to the complaint on the ground that

section 845.8, subdivision (b), of the Government Code provides an immunity to public entities for injury caused by an escaped prisoner; but respondent court overruled the demurrer. Questions: First. Is prohibition an appropriate remedy? Yes. Prohibition is an appropriate remedy where, as here, it is desirable that an important jurisdictional question presented by the defense of sovereign immunity from suit should be speedily determined. (People v. Superior Court, 29 Cal.2d 754, 756 [1] [178 P.2d 1, 40 A.L.R.2d 919]; County of Santa Barbara v. Superior Court, 15 Cal.App.3d 751, 754-755 (1, 2) [93 Cal.Rptr. 406] (hg. den.).) Second. Does

section 845.8, subdivision (b), of the Government Code extend immunity to a governmental entity and its employees with respect to both ministerial and discretionary acts of the employees for injury caused by an escaped prisoner? Yes. Real parties in interest acknowledge that there is immunity with respect to discretionary acts (§ 820.2), but they contend that there is no immunity with respect to ministerial acts and that the alleged acts of petitioner’s employees in leaving the jail doors unlocked were ministerial in nature.

A study of the history of the California Tort Claims Act (Stats. 1963, ch. 1681, p. 3266), however, shows no intention by the Legislature to provide liability for ministerial acts and immunity only for discretionary acts.

Section 815, subdivision (a), specifically provides: “Except as otherwise provided by statute: (

a) A public entity is not liable for an injury, whether such injury arises out of

an act or omission of the public entity or a public employee or any other person.” The legislative committee comment following that

section reads, in part: “This

section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation. In the absence of a constitutional requirement, public entities may be held liable only if a statute ... is found declaring them to be liable.” In subsequent sections dealing with functions peculiarly “governmental” in nature, such as police protection, fire protection, tax administration, and mental hospital administration, liability or immunity has been provided for; and no pattern appears showing immunity only for discretionary acts or omissions. As originally enacted,

section 845.8 read, in part: “Neither a public entity nor a public employee is liable for .... (

b) Any injury caused by an escaping or escaped prisoner.” In 1970, the

section was amended to extend the immunity to injury caused by an escaping or escaped arrested person or by a person resisting arrest. The immunity granted in

section 845.8, subdivision (b), is absolute in terms and must be given effect “unless it clearly appears that the language used is contrary to what, beyond question, was the intent of the Legislature.” (Breshears v. Indiana Lumbermens Mut. Ins. Co., 256 Cal.App.2d 245, 250 [63 Cal.Rptr. 879].)

Section 856.2 originally provided: “Neither a public entity nor a public employee is liable for an injury caused by an escaping or escaped person who has been committed for mental illness or addiction.” Significantly, in 1970 in the same act in which

section 845.8, subdivision (b), was amended to extend its terms to escaping or escaped arrested, persons and persons resisting arrest,

section 856.2 was amended to exclude immunity from liability for injuries caused by, or to, escaping or escaped mental patients where a public employee has acted, or failed to act, out of fraud, corruption, or malice, or where injury to a patient in recapturing him results from a negligent act or omission of a public employee; but no qualification of the immunity regarding escaping or escaped prisoners was enacted. Numerous other related sections amended at the same time likewise provide for certain exclusions of immunity with respect to ministerial acts or omissions, and it must be assumed that if the Legislature had intended that there be any such exclusion of immunity with respect to

section 845.8, subdivision (b), it would have so provided. Under the circumstances, it is apparent that the Legislature intended the clear, unambiguous exclusion provided for in

section 845.8, subdivision (b), to be an absolute exclusion. In Ne Casek v. City of Los Angeles, supra, 233 Cal.App.2d 131, which involved the question of the liability of a public entity for injury caused by an arrested person in making an escape, the Court of Appeal, while not basing its decision on

section 845.8, subdivision (b), because of doubt as to whether an arrested person was a “prisoner,” examined the legislative history of the

section for guidance on the question of whether ministerial negligence in arresting a person, or restraining him after arrest, would create liability, and aptly stated at pages 137-138: “Our discussion up to this point has assumed negligence in the decision of the arresting officer to use or not to use a particular force or restraint.

While it seems clear from the complaint before us that the gravamen of the charge of negligence against the officers is their failure to keep the two- suspects under actual physical restraint, it is perhaps within the ambit of plaintiff’s allegations that the reason why they escaped was not a deliberate decision on the part of the officers not to- use a particular physical restraint, but that whatever restraint they did decide to use was clumsily applied.

While the negligent execution of a course of conduct previously decided on is certainly more ‘ministerial’ than the primary decision to engage in such conduct, we do not believe that the public policy which, we think, demands that the choice of method of keeping an arrest effective be subject to immunity, would be furthered by drawing so subtle a distinction.

If zeal in making arrests is worthy of being encouraged by not making the deliberate choice of using minimal force subject to review by a judge or jury, this goal would be effectively frustrated by making the manner of executing the course chosen subject to judicial scrutiny in a civil suit for damages such as this one.

We accomplish nothing by fanning the officer’s ardor one moment and extinguishing it the next. “It may be worth mentioning in this connection that a similar distinction between choice of plan and execution thereof was urged on the California Law Revision Commission by its distinguished consultant, Professor Van Alstyne, and rejected. In his brilliant ‘Study Relating to Sovereign Immunity’ (5 Cal. Law Revision Commission 1, 430-432) he discusses the case of Williams v. State, 308 N.Y. 548 [127 N.E.2d 545].

In that case it was held that the state was not liable for intentional injury done by a prisoner who had escaped from a minimum security prison. The injury was inflicted for the purpose of making the prisoner’s escape good. Professor Van Alstyne urged upon the Law Revision Commission a distinction between the discretionary decision to incarcerate a particular prisoner in a minimum security facility and negligence in the administration of the minimum security correctional program. His suggestion was not accepted by the Commission, nor by our Legislature.” In Johnson v.

State of California, 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352], this court held that acts or omissions during a continuing relationship of the public entity with the plaintiff following a determination to place in her home for foster care a youth previously committed to the Youth Authority were not encompassed within the immunity of

section 845.8, subdivision (a), but had to meet the discretionary immunity requirements of

section 820.2 if immunity were to be found.

Section 845.8, subdivision (a), however, by its terms is limited to an injury “resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release.”

Section 845.8, subdivision (b), on the other hand, is not limited to specific determinations or acts by public employees following which there may be a continuing relationship' between the public entity and the plaintiff.

Rather, it relates simply to “Any injury caused by . . . [a]n escaping or escaped prisoner.” In their complaint, real parties in interest allege, among other things, that “the regulations and law required each of said persons [the prisoners who later escaped] at all times be subject to prior classification and under guard, control, restraint and supervision of jail personnel, and that all doors, windows, gates and bars or other devices, and all fences be so constructed, maintained, guarded and controlled so as to prevent escape by inmates.” They further allege, in effect, that petitioner failed to enforce said laws and that their decedent’s death occurred as a proximate result thereof.

Section 818.2, however, provides that a public entity is not liable for an injury caused by adopting, or failing to adopt, an enactment “or by failing to enforce any law.” (See also § 821.) “[A]ny law” would include the regulations referred to. (§ § 810.6, 811.) Real parties in interest further allege in their complaint that petitioner failed to lock or secure the doors to the jail and that “the failure to lock or secure the doors and fences of said property constituted a dangerous and defective condition thereof,” as a proximate result of which the inmates were able to escape, and their decedent was killed. As pointed out by real parties in interest,

section 835 provides that a public entity is liable for injuries proximately caused by a dangerous condition of its property. It is questionable that the condition of property becomes dangerous by reason of unlocked doors; but, in any event, the liability of a public entity for injury caused by an escaping or escaped prisoner is covered by

section 845.8, subdivision (b), and the latter, being a specific provision, controls over the general provision. (Rose v. State of California, 19 Cal.2d 713, 724 [123 P.2d 505].) As hereinabove indicated, real parties in interest, although recognizing that there is immunity for discretionary acts of petitioner’s employees (§ 820.2), contend that there is no immunity with respect to ministerial acts and that the alleged acts of petitioner’s employees in leaving the jail doors unlocked were ministerial in nature.

Ministerial implementation of correctional programs, however, can hardly, in any consideration of the imposition of tort liability, be isolated from discretionary judgments made in adopting such programs. (Cf. Ne Casek v.

City of Los Angeles, supra, 233 Cal.App.2d 131.) In any event, the Legislature’s determination to make the immunity with respect to injury caused by an escaped prisoner an absolute one, thus encompassing both discretionary acts or omissions and ministerial acts or omissions, seems entirely justified when one reflects that prison administrators would of necessity be inhibited in maintaining rehabilitative programs allowing liberal prisoner freedom if the result is to increase greatly the risk of escape, and the entity is to be held responsible to third persons for injuries caused by the escaped prisoner.

Let a peremptory writ of prohibition issue, and respondent court is directed to vacate its order overruling the demurrer, to sustain the demurrer, and to proceed in a manner consistent with the views expressed herein. Wright, C. J., Mosk, J., Burke, J., and Sullivan, J., concurred. All references not otherwise designated are to the Government Code. The amendment was undoubtedly enacted in response to the question raised in Ne Casek v. City of Los Angeles, 233 Cal.App.2d 131 [43 Cal.Rptr. 294] (hg. den.). For example, under

section 844.6 public entities are granted immunity, with certain specified exceptions, for injuries caused by a prisoner or injuries to a prisoner; but the

section expressly provides that public employees are not exonerated from liability for an injury caused by their negligent or wrongful acts or omissions. Likewise,

section 845.6 provides both public entities and employees immunity where they fail to furnish or obtain medical care for a prisoner, other than when the prisoner is in need of immediate medical care, but further states that when care is provided, a public employee is not exonerated from liability for medical malpractice.

Section 854.8, relating to liability for injuries caused by, or injuries to, mental patients, contains a similar distinction.

Section 856, relating to the confinement of persons for mental illness or addiction, provides immunity for the determination (1) whether to confine a person for the afflictions, (2) what terms and conditions should be imposed with respect to any confinement, and (3) whether to parole, allow on leave, or release a person from such confinement; and it specifies that there is no liability for carrying out with due care such determinations, but that a public employee is not entitled to immunity for his negligent or wrongful act or omission in carrying out, or failing to carry out, those determinations.

Sections 855.4 and 855.8, which have not been amended, are examples of other sections making the immunity inapplicable in certain instances where public employees have been negligent with respect to ministerial duties. In County of Santa Barbara v. Superior Court, supra, 15 Cal.App.3d 751 (hg. den.), which, like Johnson, involves

section 845.8, subdivision (a), a prisoner was charged with drunk driving and released on bail. He was subsequently rearrested for attempted burglary, assault with intent to commit rape, battery, and public intoxication. While in jail, he exhibited a highly disturbed mental and emotional condition and engaged in destructive, violent, and abusive acts. He was nevertheless again released on bail, after which the sheriff notified the district attorney of the further offenses committed by the prisoner in jail.

By the time he was picked up again, he had entered a residence to burglarize it and had stabbed one of the occupants to death. The Court of Appeal, after reviewing generally the provisions of the Government Code relating to the liability of public entities and public employees, held that the county was entitled to immunity under sections 845.8 and 846. The latter

section provides: “Neither a public entity nor a public employee is Habile for injury caused by the failure to make an arrest or by the failure to retain an arrested person in custody.” It apparently was the contention of the petitioners (real parties in interest) in that matter that although adoption of the bail

schedule under which the prisoner had been released involved a basic policy decision and hence resulted in immunity, the acts of the county employees charged with the day-to-day operation of the bail system were ministerial in character, and the county was therefore not entitled to immunity with respect thereto. The Court of Appeal, however, properly concluded that the acts of the employees were “inherently a part of the processes involved in determining whether to release and do not involve any conduct subsequent to that determination.” (P. 756.)