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Court of Appeal, Third District, California.

COUNTY OF SACRAMENTO, Petitioner, v. The SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; Jane Powers FEDERER, etc., et al., Real Parties in Interest.

Civ. 13193.

Decided: February 11, 1972

Fitzwilliam, Memering, Stumbos & DeMers, by Donald S. Walter, Sacramento, for petitioner. Colley & McGhee, by Nathaniel S. Colley, Sacramento, for real party in interest.

Petitioner seeks a writ of prohibition restraining the Sacramento County Superior Court from further proceedings in an action for wrongful death filed against petitioner. The real parties in interest, the surviving heirs of the deceased, sued petitioner, alleging in the charging allegations of the complaint that two prisoners escaped from a branch county jail and shot and killed deceased; that the death proximately resulted from the negligence of petitioner's employees in classifying prisoners, in the lax enforcement of prison regulations and laws permitting escape of two prisoners, in the failure to poursue the escaped prisoners or to warn inhabitants of the area of their escape, and in the maintenace of a dangerous and defective condition through faulty operation and control of its jail. The trial court overruled a general demurrer to the complaint interposed by the defendant which claimed an absolute immunity to the action conferred by Government Code section 845.8, subdivision (b)(1).

The important issue herein presented is whether the immunity conferred by the statute in question is absolute or discretionary. Such a determination is controlling. If the immunity is found to be absolute in its effect, the case is at an end and the writ must issue. If the case falls within the discretionary immunity rule, then it must proceed and the parties put to their proof.

Government Code section 845.8, subdivision (b)(1), provides: ‘Neither a public cntity nor a public employee is liable for: . . . (b) Any injury caused by: (1) An escaping or escaped prisoner.’ The discretionary immunity rule, on the other hand, is codified in section 820.2 of the Government Code in the following language: ‘Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.’

The contentions of the two parties herein are, as to petitioner, that section 845.8 is clear, unambiguous, requires only a simple reading, and confers an absolute immunity, and as to respondent, that the statute must be reviewed in its context, in the light of its legislative history, the matrix of decisional changes in governmental immunity generally, the interpretations of the authors and commentators, and that a discretionary immunity only is afforded defendant.

What is the statutory objective? Is it in a literal interpretation of a statute apparently so unmistakable in its import, or must we probe deeper into the area of legislative intent, design and purpose? An important question of statutory interpretation is involved.

The search for the solution to the problem posed herein must begin with a consideration of the California Tort Claims Act of 1963. (Gov.Code, § 814 et seq.) The adoption of this act represents a legislative response to Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, and Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224, 11 Cal.Rptr., 97, 359 P.2d 465. Prior to Muskopf and Lipman a judicial trend toward broader liability and narrower immunity of public entities was discernible, the most significant step in that direction being People v. Superior Court (1947) 29 Cal.2d 754, 178 P.2d 1. (A brief and excallent review of pre-Muskopf decisional history is contained in California Government Tort Liability (Cont. Ed. Bar.) p. 6.) $In 1963 with the adoption of the California Tort Claims Act (Gov.Code, §§ 810–996.6) the Legislature instituted a broad and comprehensive codification of state law pertaining to governmental tort liability. Both before and after the adoption of the act it was recognized that the freedom from liability complete. Thereafter, in succeeding sections, the Legislature sought to identify those governmental activities for which the discretionary immunity rule would apply.

Under the general provisions relating to liability, sections 815 to 818.8 consider the responsibility of the governmental entity, and sections 820 to 822.2 involve liability of public employees. Section 815.2 imposes upon the public entity legal responsibility in those cases in which the employee is not immune. Thereafter follow a series of sections pertaining to particular areas of governmental activities classified as dangerous conditions of public property (§§ 830 to 840.6); police and correction activities (§§ 844 to 846); fire protection (§§ 850 to 850.8); medical, hospital and public health activities (§§ 854 to 856.4); tax matters (§§ 860–860.4); and tort liability based on agreements between public entities (§§ 895–895.8).

The pertinent section with which we are here concerned, section 845.8, falls within those pertaining to police and correctional work.

We have said recently that literal construction will not prevail if it is opposed to legislative objective. (Pacific Gas & Elec. Co. v. Morse (1970) 6 Cal.App.3d 707, 712, 86 Cal.Rptr. 7.) Several indicia point to the legislative intent to create something less than an absolute, blanket immunity for all injuries caused by prisoners who have escaped regardless of circumstance. This is suggested first by the Comment of the Law Revision Commission to the effect that (referring to § 845.8) ‘This section is a specific application of the discretionary immunity recognized in California cases and in Section 820.2.’ Comments of the commission are a well accepted source from which to ascertain legislative intent. In considering section 815.4 the Supreme Court has said: ‘Reports of commissions which have proposed statutes that are subsequently adopted are entitled to substantial weight in construing the statutes. [Citations.] This is particularly true where the statute proposed by the commission is adopted by the Legislature without any change whatsoever and where the commission's comment is brief, because in such a situation there is ordinarily strong reason to believe that the legislators' votes were based in large measure upon the explanation of the commission proposing the bill.’ (Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 249–250, 66 Cal.Rptr. 20, 23, 437 P.2d 508, 511; Keeler v. Superior Court (1970) 2 Cal.3d 619, 630, 87 Cal.Rptr. 481, 470 P.2d 617.)

Further and additionally, the Legislative Committee Comment (Senate) to section 820.2 recognizes that section 845.8 confers a ‘discretionary’ immunity in its use of the following language: ‘In the sections that follow, several immunities . . . are set forth even though they have been regarded as within the discretionary immunity. These specific immunities are stated in statutory form so that the liability of public entities and employees may not be expanded by redefining ‘discretionary immunity’ to exclude certain acts that had previously been considered as discretionary.'

Finally, and of even greater force, is the analysis of the Supreme Court in Johnson v. State of California (1968) 69 Cal.2d 782, 795, 73 Cal.Rptr. 240, 447 P.2d 352, which was presented with an interpretation of the exact section (845.8), albeit another subsection thereof. The clear import of Johnson is to establish section 845.8 as conferring discretionary immunity in the exercise of ‘basic policy decisions,’ insofar as, under subdivision (a), the activity concerns a paroled or released prisoner. The court accepts the statutory language of section 845.8 as permitting the analysis which characterized a series of federal decisions interpreting similar ‘discretionary’ language in section 2680, subdivision (a), of the Federal Tort Claims Act. This process is described in Johnson in the words, ‘although a basic policy decision (such as standards for parole) may be discretionary and hence warrant governmental immunity, subsequent ministerial actions in the implementation of that basic decision still must face case-by-case adjudication on the question of negligence.’ (P. 797, 73 Cal.Rptr. p. 250, 447 P.2d p. 362.) Describing it in another way, it may be said that the formulation of a policy decision or judgment resulting from the weighing and evaluation of a number of varying factors will immunize the public entity from liability under a discretionary immunity, but the faulty execution, performance or discharge of the policy or plan established by the decision, once made, may result in liability rather than immunity. The mere expression of the principle points to problems of articulation and application, for conceptually, few ‘ministerial’ acts have no literal ‘discretionary’ attributes. Notwithstanding this difficulty of clear definition, the courts have adhered to the principle which is well grounded in the understandable reluctance of the judicial arm to interpose its will in the policy decision making process of coordinate branches of government.

At least four different theories are recognizable in determining whether in a given factual situation the acts involved constituted ‘discretionary’ as opposed to ‘ministerial’ conduct. These are the ‘dampen the ardor,’ the ‘semantic,’ the ‘subsequent negligence’ and the ‘planning’ as opposed to ‘operational’ approaches. (See Notes on the California Tort Claims Act, The Discretionary Immunity Doctrine in California, 19 Hastings L.J. 561, 566 et seq.) The rationale for each approach varies somewhat. There is a certain inconsistency between them. Some have seen a greater ‘flexibility’ in the ‘dampen the ardor’ concept as opposed to the ‘subsequent negligence’ theory. (See 19 Hastings L.J. 561, 572.)

Johnson reminds us that the 1963 Tort Claims Act did not abrogate the underlying holding of Muskopf v. Corning Hospital Dist., supra, 55 Cal.2d 211, 219, 11 Cal.Rptr. 89, 359 P.2d 457, that “when there is negligence, the rule is liability, immunity is the exception.' Accordingly, courts should not casually decree governmental immunity . . ..' (Johnson v. State of California, supra, 69 Cal.2d at p. 798, 73 Cal.Rptr. at p. 251, 447 P.2d at p. 363.)

Johnson also directs us to search for ‘the reasons for granting immunity’ and ‘to find and isolate those areas of quasi-legislative policy-making which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision.’ (P. 794, 73 Cal.Rptr. 240, 248, 447 P.2d 352, 360.) The reason for recognizing an immunity referable to escaping or escaped prisoners is to leave the administrators of jails and prisons free and unfettered from legal criticism of, and attack on, the organization, program, and general direction of jails, prisons and custodial instutions. Such activity is highly specialized, complex, and much too susceptible to unknowledgeable ‘second guessing.’ Defendant county, having decided the location of the jail in question, having fixed the degree of security for the facility, having determined the program for the inmates and having established general policy for the operation of the jail in question, should not be subject to judicial scrutiny of its considered judgments. In the administration of a jail facility certain decisions are inherent in determining the intake policy, establishing the nature and kind of custodial institution to be established and maintained, and in the determination of the necessary standards and practices to effectuate the purposes of the facility. Such judgments are rooted in the wisdom, experience, prudence, consideration, discrimination, discernment and sagacity of the policy-making entity involved. They are discretionadry and immune. Courts should not interpose themselves in such determinations.

After the point in time, however, when such judgments have been reached, the implementation of the plan, the execution and furtherance of the design previously adopted partake of action of a different character. Although perhaps improperly described as ‘ministerial,’ the action of the agency to accomplish and meet the purpose of the plan is of a nature less exalted. Such activity, if negligently performed, will impose liability. The blanket of immunity does not stretch so far as to cover conduct which may constitute megligent performance of obligations required to implement the policy decisions. If the discretionary policy judgment requires a door to be locked, the immunity does not protect the entity which leaves the door unlocked. The immunization of the agency in determining a policy standard does not protect the action that falls below the standard.

Such an analysis invites scrutiny of the actions alleged in the complaint herein to which the demurrer was interposed. The following is a summary of the charging allegations as contained in the first cause of action in the complaint: About December 17, 1970, defendant Sacramento County owned and operated a branch jail or industrial camp at Elk Grove in Sacramento County; defendants Goodridge and Logsdon were sentenced to jail for certain crimes and transferred to the Elk Grove facility, without prior classification, for detention and restraint; the law required prior classification of said inmates and their continued guard, restraint, control and supervision in order to prevent their escape; defendant county through its agents and employees negligently failed to keep the doors, windows and other exits locked and secured and said inmates were permitted to escape, unlawfully entered the home of the deceased and during the course of a burglary fatally shot him. In the second cause of action it is alleged that defendant county negligently failed to pursue said inmates or, alternatively, warn of their escape. The third cause of action alleges that the county maintained the jail in question in a dangerous and defective manner in that the doors therein were permitted to be unlocked, and although said immates were known to be dangerous, the same were uncontrolled and unsupervised, as a result of which the inmates were permitted to escape.

Thus, the complaint alleges negligence in failure to classify prisoners, in securing the jail facility, and in the pursuit of the jail inmates and the warning of their escape. The charges relate to the internal administration of the jail, and they pertain to alleged failures to contain and control. They smack of faulty implemintation of a plan.

We conclude, therefore, that any action properly charcacterized as ‘discretionary,’ and which falls within the reasonably accepted meaning of the term, has been exhausted at a point in time prior to the performance or nonperformance of acts charged by the complaint.

We note that the complaint, alleging as it does negligence in classifying or failing to classify prisoners, as well as negligently failing to guard, control and restrain them, contains an amalgam of charges some of which, on close examination, may constitute conduct within the discretionary immunity rule and some of which are not. Special demurrers or motions to strike are available to petitioner to reach and test the nature of such activities.

It follows, accordingly, that the trial court properly overruled the demurrer interposed.

The order to show cause is discharged; the temporary stay order is terminated; and the petition for writ of prohibition is denied.

RICHARDSON, Presiding Justice.

FRIEDMAN and PIERCE, Assigned, JJ., concur.