California Government Code Section 820.2 - Interpretation

Government Code section 820.2, states: "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." Johnson v. State of California (1968) 69 Cal.2d 782, 793, the leading case interpreting Government Code section 820.2, held that "discretionary act immunity applies only to 'basic policy decisions.'" In Johnson, a government official placed a "'16 year old boy with homicidal tendencies'" in Mrs. Johnson's home as a foster child and failed to warn her of the child's "'dangerous propensities,'" even though the placement officer had notice of the danger. After five days in Mrs. Johnson's home, the boy assaulted and injured her. (Johnson, at pp. 784-785.) Mrs. Johnson sued the State, alleging the State "'should have told me I was getting a boy with a criminal and delinquent background.'" (Id. at p. 785, fn. 1.) The trial court granted summary judgment in favor of the State, on the ground the placement officer's decision whether to warn of the boy's potentially dangerous propensities was a "discretionary act" protected by section 820.2. (Id. at p. 786.) The Supreme Court reversed. In construing the scope of section 820.2 immunity, the Court held "a semantic inquiry into the meaning of 'discretionary' will not suffice as a criterion for interpreting section 820.2." (Johnson v. State of California, supra, 69 Cal.2d at p. 787.) The Court instead analyzed the policy underlying a grant of immunity to determine what conduct should be protected by section 820.2. "'Since obviously no mechanical separation of all activities in which public officials may engage as being either discretionary or ministerial is possible, the determination of the category into which a particular activity falls should be guided by the purpose of the discretionary immunity doctrine.'" (Johnson, at p. 790.) The Court held section 820.2 provides immunity for "basic policy decisions," but not "for the ministerial implementation of that basic policy." (Johnson v. State of California, supra, 69 Cal.2d at p. 796.) The Court explained this distinction might also be characterized as "between the 'planning' and 'operational' levels of decision-making." (Id. at p. 794.) It noted "any wider judicial review . . . would place the court in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government." (Id. at p. 793.) Using this analysis the Court held the decision to place the boy in Johnson's home was a "basic policy decision," but the decision whether to warn her of his violent propensities was ministerial. (Id. at p. 786.) "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." (Id. at p. 797.)