California Civil Jury Instructions (CACI)

423. Public Entity Liability for Failure to Perform Mandatory Duty

[Name of plaintiff] claims that [he/she] was harmed because [name of defendant] violated [insert reference to statute, regulation, or ordinance] which states: [insert relevant language]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] violated [insert reference to statute, regulation, or ordinance];

2. That [name of plaintiff] was harmed; and

3. That [name of defendant]’s failure to perform its duty was a substantial factor in causing [name of plaintiff]’s harm.

[Name of defendant], however, is not responsible for [name of plaintiff]’s harm if [name of defendant] proves that it made reasonable efforts to perform its duties under the [statute/regulation/ordinance].

New September 2003

Directions for Use

The judge decides the issues of whether the statute imposes a mandatory duty and whether it was designed to protect against the type of harm suffered. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499 [93 Cal.Rptr.2d 327, 993 P.2d 983].)

Sources and Authority

  • Government Code section 815.6 provides: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
  • “Before the state will be required to confront a rebuttable presumption of negligence, plaintiff must demonstrate that: (1) the statute which was violated imposes a mandatory duty, (2) the statute was intended to protect against the type of harm suffered, and (3) breach of the statute’s mandatory duty was a proximate cause of the injury suffered.” (Braman v. State of California (1994) 28 Cal.App.4th 344, 349 [33 Cal.Rptr.2d 608], internal citation omitted.)
  • “ ‘ Government Code section 815.6 contains a three-pronged test for determining whether liability may be imposed on a public entity: (1) an enactment must impose a mandatory, not discretionary, duty . . . ; (2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability . . . ; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered.’ All three elements must be met before a government entity is required to confront the rebuttable presumption of negligence.” (Walt Rankin & Associates, Inc. v. City of Murrieta (2000) 84 Cal.App.4th 605, 614 [101 Cal.Rptr.2d 48], internal citation omitted.)
  • “In order to recover plaintiffs have to show that there is some specific statutory mandate that was violated by the County, which violation was a proximate cause of the accident.” (Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 896—897 [45 Cal.Rptr.2d 646], internal citations omitted.)
  • “Courts have recognized that as a practical matter the standard for determining whether a mandatory duty exists is ‘virtually identical’ to the test for an implied statutory duty of care under Evidence Code section 669.” (Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1185, fn. 3 [89 Cal.Rptr.2d 768], internal citations omitted.)
  • “Financial limitations of governments have never been, and cannot be, deemed an excuse for a public employee’s failure to comply with mandatory duties imposed by law.” (Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, 146 [32 Cal.Rptr.2d 643], internal citations omitted.)
  • “Questions of statutory immunity do not become relevant until it has been determined that the defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity. However, a defendant may not be held liable for the breach of a duty if such an immunity in fact exists.” (Washington, supra, 38 Cal.App.4th at p. 896, internal citations omitted.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 245—248

5 Levy et al., California Torts, Ch. 60, General Principles of Liability and Immunity of Public Entities and Employees, Ch. 61, Particular Liabilities and Immunities of Public Entities and Public Employees (Matthew Bender)

40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers (Matthew Bender)

19 California Points and Authorities, Ch. 196, Public Entities (Matthew Bender)