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Souza v. City of Antioch4/30/1997
ot admit of some discretion in the manner of its performance, even if it involved only the driving of a nail.' " ( Id. at p. 788, quoting Ham v. County of Los Angeles (1920) 46 Cal. App. 148, 162, 189 P. 462.) The Johnson court announced that instead of looking in the dictionary for guidance, it would look at the policy considerations relevant to the purposes of granting immunity in the first place.
The court settled on a separation-of-powers rationale for immunizing some acts and not others, recognizing that " 'much of what is done by officers and employees of the government must remain beyond the range of judicial inquiry' (3 Davis, Administrative Law Treatise (1958) § 25.11, p. 484); obviously 'it is not a tort for government to govern' ( Dalehite v. United States (1953) 346 U.S. 15, 57, 97 L. Ed. 1427, 73 S. Ct. 956 (Jackson, J., Dissenting))." (Johnson, (supra) , 69 Cal. 2d at p. 793.) "Discretionary" acts, then, were Judged to be those reflecting "quasi-legislative policy" choices, assuring "judicial abstention in areas in which the responsibility for [such] decisions has been committed to coordinate branches of government." (69 Cal. 2d at pp. 793, 795.) The upshot of this reading of "discretionary" is that the benefit of immunity has been confined, "for the most part, to relatively high-ranking public employees . . . enjoy authority to carry out duties that include the making of decisions requiring a substantial degree of judgment based on the weighing and balancing of competing risks and advantages." (Cal. Government Tort Liability Practice (Cont.Ed.Bar 1992) General Liability and Immunity Principles, § 2.118, p. 220.) The insulated act must not only effect the discretion conferred as a fairly high-level policy choice; it must also reflect a conscious exercise of that discretion in the particular case. (See Sanborn v. Chronicle Pub. Co. (1976) 18 Cal. 3d 406, 134 Cal. Rptr. 402, 556 P.2d 764.)
In deciding which acts are discretionary and which ministerial, we are guided by the "distinction . . . between the 'planning' and 'operational' levels of decision-making." (Johnson, (supra) , 69 Cal. 2d at p. 794.) "Although a basic policy decision . . . 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." (69 Cal. 2d at p. 797; and see cases there cited at fn. 10.) Thus, the liability for ministerial functions has also been called " 'subsequent negligence' " liability . . . [because i]t refers to negligence which occurs after discretion has been exercised and holds that such negligence is not excused." ( Sava v. Fuller (1967) 249 Cal. App. 2d 281, 289-290, 57 Cal. Rptr. 312 [ Sava ].)
By way of illustration, Johnson offered the case of Sava, (supra) , 249 Cal. App. 2d 281, in which a state-employed botanist was sued for malpractice after he informed parents of an ailing four-year old that a plant she had ingested was poisonous. The child died of pneumonia, which had gone untreated owing to the botanist's mistake. The court in that case held the botanist subject to liability, explaining, "Dr. Fuller had already exercised discretion by agreeing to analyze the possibly ingested plant substance to determine its toxicity. . . . Exercise-of-discretion had ended at that point and thereafter the inquiry would be limited to whether there had been an exercise of due care under a duty assumed. . . . Once the determination has been made that a service will be furnished and the service is undertaken, then public policy demands . . . that government be held to the same standard of care the law requires of its private citizens in the performan
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