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California Continuing Governmental Immunities

By: Moris Davidovitz

California court decisions continue to find means to apply statutory immunities from liability available to public entities.  The latest decision is an illustration, and should encourage public entities faced with claims where immunity clearly applies to promptly communicate the defense to the claimant. Lee v. Dep’t of Parks and Rec., 38 Cal.App.5th 206 (Cal. Ct. App., July 31, 2019).

The appellate court affirmed a trial court’s application of the statutory “trail” immunity in favor of the State of California for injuries from a fall on a stone staircase through a wooded area in a state park. No previous case had decided whether a constructed staircase could qualify as a “trail” within the meaning of the immunity statute.  A number of earlier appellate decisions had upheld the “trail” immunity in various other circumstances.

The trial court had awarded substantial attorneys’ fees to the public entity under another statute  (Code of Civil Procedure Section 1038), finding the claimant’s lawsuit to have been unreasonable and not in good faith as a matter of law because of the application of the statutory immunity.  The appellate court reversed the award of attorneys’ fees, concluding the claimant did not act unreasonably as a matter of law because it had not been settled law that a staircase was a “trail” for application of trail immunity. 

While the fee statute in effect requires a judicial finding of unusual circumstances with regard to both good faith and reasonable cause, where the public entity believes that there is no controversy with respect to both the facts and the law for the application of an immunity to a claim, the public entity should consider promptly communicating the defense position to the claimant.  At a minimum, such communication could facilitate an exchange of information about the viability of the claim and narrow the issue(s) in dispute for adjudication.


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