One of the favorite claims pleaded by attorneys who sue public entities is for breach of a mandatory duty. The Tort Claims Act (Gov. Code §§ 810-999.6) provides that public entities may be liable for failing to perform mandatory duties imposed by enactment if the resulting harm is the kind of harm against which the enactment was designed to protect. (Gov. Code § 815.6.) While the Tort Claims Act provides a host of immunities to public entities, most of these only provide protection for discretionary activities. (See, e.g., Elson v. Public Utilities Comm’n (1975) 51 Cal.App.3d 577, 589.) It has therefore been a boon to public entities to see a series of cases broadly interpret a public entity’s “inspection immunity” (Gov. Code §818.6) to curtail public entity liability for both mandatory duties and discretionary activities. (See, e.g., Clayton v. City of Sunnyvale (1976) 62 Cal.App.3d 666, 671.) Moreover, courts have progressively expanded the types of “inspection” activities that fall within the immunity. The culmination came in Haggis v. City of Los Angeles (1998) 67 Cal.App.4th 216 (currently pending California Supreme Court review) where the inspection immunity was held to shield the city from claims by a landslide damaged homeowner, even though the city had knowledge of the landslide hazard before the improvements on the property were constructed, issued building permits for the improvements in clear violation of its own regulations, and failed to record a required substandard condition certificate, which, if recorded, would have warned of the property’s instability before the plaintiff bought the property. It appears to be a significant stretch of the inspection immunity to protect the seemingly blatant misfeasances described in the Haggis case. On its face, the inspection immunity provided by section 818.6 applies only to a failure to inspect property or to negligence in the actual inspection itself: A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property other that its property…, for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety. An expansive reading of the immunity first occurred in Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, where the court held that the immunity is not limited to negligence in the inspection itself, but also protects the public entity when it actually discovers hazards during an inspection and fails to take actions mandated by law in response to the information obtained. In Cochran, a worker was killed in a fire at an engraving company where magnesium, a highly combustible substance, was in use at the time of the fire. Plaintiffs discovered reports pre-dating the fire which established that the city fire department was aware of magnesium stored on the premises. Plaintiffs claimed that the fire department had violated several mandatory duties imposed by the municipal code, including failing to recommend suitable fire detecting devices, appropriate fire extinguishers, and a safe means of escape from the building. The appellate court upheld summary judgment based on the inspection immunity. The court explained the scope of the immunity as follows: The purpose of Government Code section 818.6 is to protect public entities from liability not only for failures to detect technical safety code violations, but for any negligence directly connected to the inspection process itself. In order for the immunity to apply, the negligence in question must have been part and parcel of the inspection or have had a direct or proximate effect on it, either by impairing its value, frustrating its goals or purposes, affecting the results or findings made, or in some other way resulting in damage to the investigation itself. (Id. at 412.) Harshbarger v. City of Colton (1988) 197 Cal.App.3d 1335 broadened the application of the inspection immunity in another direction, in synergy with public entity immunity for negligent or intentional misrepresentations (Gov. Code § 818.8) to hold that public entities are immune for fraudulent, as well as negligent, inspections. The facts (as alleged by the Harshbargers and accepted on appeal of the city’s successful demurrer) present the Harshbargers beginning construction of their new home in Colton in April, 1984. As construction progressed, two Colton building inspectors periodically inspected the residence and signed off on the “job card,” certifying that each phase of the construction complied with city building codes. In actuality, the construction did not meet code standards, and the city inspectors were aware of these deficiencies and fraudulently failed to disclose them during construction. In August, 1985, when the city finally informed the Harshbargers of the construction defects, the Harshbargers were forced to pay $295,000 to remedy them. The Harshbargers sued the city on grounds of fraudulent inspection, claiming that Government Code section 818.6 protects the city only against negligent inspections. This argument proved to be a “Catch 22,” however, because the court reasoned that a fraudulent inspection occurs only where a public employee has made an intentional misrepresentation or suppression of fact. Since a public entity is wholly immune from liability caused by negligent or intentional misrepresentations of its employees under Government Code section 818.8, alleging fraudulent inspection sidesteps the inspection immunity only to be tackled by the immunity for employee misrepresentations. (Harshbarger, 197 Cal.App.3d at 1345.) The court also relied on the inspection immunity to uphold the city’s demurrer to the Harshbargers’ negligent hiring theory, holding that the inspection immunity includes any negligent or omitted pre-inspection act which affects the inspection, even where a duty to perform the act is implied by statute. Citing Cochran, plaintiffs argued that the city could not escape liability based on the inspection immunity because section 818.6 applies only to negligence that is “part and parcel” of the inspection itself, and Colton’s negligence in hiring and supervising its inspectors predated the faulty inspections done by those employees. (Id. at 1348.) The court criticized this interpretation of the “part and parcel” language in Cochran as “ignoring” the balance of the Cochran decision. (Ibid.) Rather, the court held the city immune under section 818.6 because “Colton’s hiring and supervision of [the two inspectors] had at least a proximate, if not a direct, effect on the inspection of the Harshbargers’ residence by either impairing its value of affecting the results or findings made, or in some other way resulting in damage to the inspection itself.” (Ibid.) While a literal reading of section 818.6 would seem to limit the inspection immunity to failures to detect unsafe conditions in properties being inspected, in Powell v. State of California (1991) 234 Cal.App.3d 910, the court of appeals expanded the inspection immunity to the negligent failure of a public entity to discover non-physical conditions, such as the lack of required insurance-related files. In Powell, a 19-month-old boy brought an action against the Department of Social Services (DSS) when he was injured at a day-care home licensed by DSS and was unable to collect against the home’s uninsured operator. He sued DSS on a theory, among others, of breach of the mandatory duty embodied in Health and Safety Code section 1597.531 (requiring license revocation for failure to maintain liability insurance or a file with parental affidavits acknowledging non-insurance.) The court characterized plaintiff’s claims as an allegation of negligent inspection wherein DSS negligently failed to inspect the day-care home and therefore failed to discover that the operator did not maintain the required file of affidavits. (Id. at 915.) The decision in Haggis v. City of Los Angeles (1998) 67 Cal.App.4th 216 presents the most recent, and most extreme, example of public entity negligence immunized by the inspection immunity. The City of Los Angeles successfully demurred to allegations of breach of mandatory duty imposed by several provisions of the Los Angeles Municipal Code (LAMC) addressing the development of property in a known landslide zone. Plaintiff purchased his home, located high atop a coastal bluff, in 1991. The home sustained severe damage resulting from a landslide triggered by the Northridge Earthquake and had to be demolished in 1994. The facts accepted on appeal established that the city had knowledge of the geologic instability of the property since at least 1959, when a city-sponsored study of the area was completed. A landslide in 1966 resulted in a city determination that the house then-built on the property was unsafe and required corrective work. LAMC required that this determination be recorded against the property by the city so that subsequent property owners would have notice of the condition, but it never was. Moreover, LAMC conditioned the granting of building permits for substandard lots on the recording of an affidavit by the owner stating his/her awareness that the property was in an active slide and on the submission of geologic reports demonstrating sufficient stabilization. The city issued building permits to subsequent owners in 1970, 1973, 1976, and 1977, including one for the construction of a new residence and a swimming pool, without requiring compliance with the mandatory requirements of its own LAMC. The city issued these permits in clear violation of LAMC, knowing that the corrective work required after the 1966 slide was never performed and having received reports and correspondence from a geologist advising the city of the hazardous conditions. In an effort to avoid the inspection immunity, Haggis, who bought the property without knowledge of the landslide hazard, argued that he was “not complaining of negligent or even fraudulent inspection practices by the city, but rather that the city failed to take legislatively mandated action with respect to the information once it had it.” (Id. at 228.) The court rejected Haggis’ pleas and held that the inspection immunity extends far beyond negligent inspection or even fraudulent inspection practices to immunize the whole gamut of actions of which Haggis complained, including failure to warn of known hazards, approving permits for construction in landslide prone areas, and failure to follow statutory requirements designed to protect future owners of the property. The court reasoned that even the city’s repeated violations of LAMC were “part and parcel” of the inspection process. While the State Supreme Court may yet provide the last word on the Haggis case, its result is a natural extension of the reasoning of Cochran, Harshbarger, and Powell. These cases broadly interpret the inspection immunity and make clear that this special immunity can be the public entity trump card to liability claims for breaches of mandatory duties. [copyright 1999 Daily Journal Corp., reprinted with permission]
