California Civil Jury Instructions (CACI) (2017)

423. Public Entity Liability for Failure to Perform Mandatory Duty

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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 Liability for Failure to Perform Mandatory Duty. Government
Code section 815.6.
• “ ‘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.’ (Gov. Code, § 815.6.) Thus, the
government may be liable when (1) a mandatory duty is imposed by enactment,
(2) the duty was designed to protect against the kind of injury allegedly
suffered, and (3) breach of the duty proximately caused injury.” (State Dept. of
State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 348 [188 Cal.Rptr.3d
309, 349 P.3d 1013].)
• “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.)
• “[T]he term ‘enactment’ refers to ‘a constitutional provision, statute, charter
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provision, ordinance or regulation.’ . . . A ‘contract cannot give rise to “a
mandatory duty imposed by an enactment . . . .” ’ ” (Tuthill v. City of San
Buenaventura (2014) 223 Cal.App.4th 1081, 1091−1092 [167 Cal.Rptr.3d 820].)
• “The first element of liability under Government Code section 815.6 requires
that ‘ “the enactment at issue be obligatory, rather than merely discretionary or
permissive, in its directions to the public entity; it must require, rather than
merely authorize or permit, that a particular action be taken or not taken.
[Citation.] It is not enough, moreover, that the public entity or officer have been
under an obligation to perform a function if the function itself involves the
exercise of discretion. [Citation.]’ [Citation.] Courts have construed this first
prong rather strictly, finding a mandatory duty only if the enactment
‘affirmatively imposes the duty and provides implementing guidelines.” ’ ” (B.H.
v. County of San Bernardino (2015) 62 Cal.4th 168, 180 [195 Cal.Rptr.3d 220,
361 P.3d 319], original italics.)
• “ ‘It is not enough, moreover, that the public entity or officer have been under
an obligation to perform a function if the function itself involves the exercise of
discretion.’ Moreover, ‘[c]ourts have . . . [found] a mandatory duty only if the
enactment “affirmatively imposes the duty and provides implementing
guidelines.” ’ ‘ “ ‘[T]he mandatory nature of the duty must be phrased in
explicit and forceful language.’ [Citation.] ‘It is not enough that some statute
contains mandatory language. In order to recover plaintiffs have to show that
there is some specific statutory mandate that was violated by the [public
entity].’ ” [Citations.]’ ” (State Dept. of State Hospitals, supra, 61 Cal. 4th at
pp. 348−349, 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],
disapproved on other grounds in B.H., supra, 62 Cal.4th at p. 188, fn. 6,
internal citations omitted.)
• “The injury must be ‘ “ ‘one of the consequences which the [enacting body]
sought to prevent through imposing the alleged mandatory duty.’ ” ’ . . . ‘That
the enactment “confers some benefit” on the class to which plaintiff belongs is
not enough; if the benefit is “incidental” to the enactment’s protective purpose,
the enactment cannot serve as a predicate for liability under section 815.6.”
(Tuthill, supra, 223 Cal.App.4th at p. 1092, internal citation 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
CACI No. 423 NEGLIGENCE
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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
5Levy et al., California Torts, Ch. 60, General Principles of Liability and
Immunity of Public Entities and Employees, § 60.22 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and
Offıcers: California Government Claims Act, § 464.61 (Matthew Bender)
45 California Forms of Pleading and Practice, Ch. 514, Schools: Injuries to
Students, § 514.17 (Matthew Bender)
19 California Points and Authorities, Ch. 196, Public Entities, § 196.182 (Matthew
Bender)
NEGLIGENCE CACI No. 423
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