Filed 7/16/07
IN THE SUPREME COURT OF CALIFORNIA
)
CITY OF SANTA BARBARA et al.,
Petitioners,
S141643
v.
THE SUPERIOR COURT OF SANTA
Ct.App. 2/6
BARBARA COUNTY,
No. B176810
Respondent;
Santa Barbara
Super. Ct. No.
TERRAL JANEWAY et al.,
1111681
Real Parties in Interest.
The mother of Katie Janeway, a developmentally disabled 14-year-old,
signed an application form releasing the City of Santa Barbara and its employees
(hereafter the City or defendants) from liability for “any negligent act” related to
Katie’s participation in the City’s summer camp for developmentally disabled
children. Katie drowned while attending the camp, and her parents (plaintiffs, real
parties in interest in the present proceedings) commenced this suit. The Court of
Appeal below (1) held unanimously that the agreement embodied in the
application form was effective and enforceable insofar as it concerned defendants’
liability for future ordinary negligence, but (2) concluded, by a two-to-one vote,
1
that a release of liability for future gross negligence generally is unenforceable,
and that the agreement in this case did not release such liability.
In granting review, we limited the issue to be briefed and argued to the
second issue — whether a release of liability relating to recreational activities
generally is effective as to gross negligence.1 As explained below, we answer that
question in the negative, and affirm the judgment rendered by the Court of Appeal.
We conclude, consistent with dicta in California cases and with the vast majority
of out-of-state cases and other authority, that an agreement made in the context of
sports or recreational programs or services, purporting to release liability for future
gross negligence, generally is unenforceable as a matter of public policy.
Applying that general rule in the case now before us, we hold that the agreement,
to the extent it purports to release liability for future gross negligence, violates
public policy and is unenforceable.
I
The relevant facts were properly set forth by the Court of Appeal below,
and we adopt that recitation with minor supplementation and stylistic changes.
The City has provided extensive summer recreational facilities and
activities for children, including a camp for children with developmental
disabilities2 — Adventure Camp. Katie Janeway, who suffered from cerebral
1
Subsequent to hearing oral argument, we directed the parties to brief the
first issue decided by the Court of Appeal — whether the release in this case is
enforceable as to any form of negligence. After consideration of the briefing,
however, we decline to address that issue.
2
The Lanterman Developmental Disabilities Services Act (Welf. & Inst.
Code, § 4501 et seq.) defines “developmental disability” as “a disability that
originates before an individual attains age 18 years, continues, or can be expected
to continue, indefinitely, and constitutes a substantial disability for that individual.
As defined by the Director of Developmental Services, in consultation with the
(Footnote continued on next page.)
2
palsy, epilepsy, and other similar developmental disabilities, participated in
Adventure Camp in 1999, 2000, 2001, and 2002.
Adventure Camp was conducted from noon until 5:00 p.m. on weekdays
for approximately three weeks in July and August. Camp activities included
swimming, arts and crafts, group games, sports, and field trips. In 2002, as in
prior years, swimming activities were held on two of five camp days each week in
a City swimming pool.
In 2002, the application form for Adventure Camp included a release of all
claims against the City and its employees from liability, including liability based
upon negligence, arising from camp activities.3 Katie’s mother, Maureen
(Footnote continued from previous page.)
Superintendent of Public Instruction, this term shall include mental retardation,
cerebral palsy, epilepsy, and autism. This term shall also include disabling
conditions found to be closely related to mental retardation or to require treatment
similar to that required for individuals with mental retardation, but shall not
include other handicapping conditions that are solely physical in nature.” (Id.,
§ 4512, subd. (a).)
3
The last section of the one-page form containing the release, signed in late
June, 2002, provided in relevant part (and in very small type): “CITY OF SANTA
BARBARA RELEASE AGREEMENT[.] IN CONSIDERATION OF BEING
PERMITTED TO PARTICIPATE IN THIS CITY ACTIVITY OR USE OF ANY
CITY FACILITIES IN CONNECTION WITH THIS ACTIVITY, THE
UNDERSIGNED AGREES TO THE FOLLOWING: [¶] 1. THE
UNDERSIGNED HEREBY RELEASES, WAIVES, DISCHARGES AND
COVENANTS NOT TO SUE THE CITY OF SANTA BARBARA, ITS
EMPLOYEES, OFFICERS AND AGENTS (hereinafter referred to as ‘releasees’)
from all liability to the undersigned, his or her personal representatives, assigns,
heirs and next of kin for any loss, damage, or claim therefore on account of injury
to the person or property of the undersigned, whether caused by any negligent act
or omission of the releasees or otherwise while the undersigned is participating in
the City activity or using any City facilities in connection with the activity. [¶] 2.
THE UNDERSIGNED HEREBY AGREES TO INDEMNIFY AND HOLD
HARMLESS the releasees from all liability, claims, demands, causes of action,
(Footnote continued on next page.)
3
Janeway, signed the release. She had signed similar releases covering Katie’s
participation in the camp in prior years.
Maureen Janeway disclosed Katie’s developmental disabilities and medical
problems to the City, specifically informing the City that Katie was prone to
epileptic seizures, often occurring in water, and that Katie needed supervision
while swimming. In addition, the City was aware that Katie had suffered seizures
while attending Adventure Camp events in 2001. She had a seizure when sitting
on the pool deck and another seizure at the skating rink. Paramedics were called
after her seizure on the pool deck. Nevertheless, Maureen Janeway indicated that
Katie was a good swimmer, and she never sought to prevent or restrict Katie’s
participation in the swimming portion of Adventure Camp.
(Footnote continued from previous page.)
charges, expenses, and attorney fees . . . resulting from involvement in this activity
whether caused by any negligent act or omission of the releasees or otherwise. [¶]
3. THE UNDERSIGNED HEREBY ASSUMES FULL RESPONSIBILITY FOR
AND RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE while
upon City property or participating in the activity or using any City facilities and
equipment whether caused by any negligent act or omission of releasees or
otherwise. The undersigned expressly agrees that the foregoing release and
waiver, indemnity agreement and assumption of risk are intended to be as broad
and inclusive as permitted by California law . . . . [¶] I acknowledge that I have
read the foregoing and that I am aware of the legal consequences of this
agreement, including that it prevents me from suing the City or its employees,
agents or officers if I am injured or damaged for any reason as a result of
participation in this activity. . . . [¶] IF THE PARTICIPANT IS A MINOR, his or
her custodial parent or legal guardian must read and execute this agreement. I
hereby warrant that I am the legal guardian or custodial parent of
who is a minor, and agree, on my own and said minor’s behalf to the terms and
conditions of the foregoing agreement. [¶] Adult name (please print) . . . .”
Katie’s mother printed and signed her name; the space for the minor’s name was
left blank, but Katie’s name was written earlier, at the top of the form containing
the release. (Capitalization in original.)
4
Based upon the information provided by Maureen Janeway and Katie’s
history of seizures, the City took special precautions during the Adventure Camp
swimming activities in 2002. The City assigned Veronica Malong to act as a
“counselor.” Malong’s responsibility was to keep Katie under close observation
during the camp’s swimming sessions. Previously, Malong, a college student, had
worked for one year as a special education aide at the middle school attended by
Katie. Malong had observed Katie experience seizures at the school, and she
received instruction from the school nurse regarding the handling of those
seizures. Malong also attended training sessions conducted by the City
concerning how to respond to seizures and other first aid matters.
Katie participated in the first swimming day at the 2002 Adventure Camp
without incident. On the second swimming day she drowned.
Approximately one hour before drowning, while waiting to enter the locker
room at the pool, Katie suffered a mild seizure that lasted a few seconds. Malong
observed the seizure and sent another counselor to report the incident to a
supervisor. According to the pleadings, the supervisor stated that the report never
was received. Malong watched Katie for approximately 45 minutes following the
mild seizure. Then, receiving no word from her supervisor, Malong concluded
that the seizure had run its course and that it was safe for Katie to swim.
Malong sat on the side of the pool near the lifeguard, watching the deep end
of the pool. In addition to the Adventure Camp participants, there were as many
as 300 other children in the pool area. Malong watched Katie jump off a diving
board and swim back to the edge of the pool. At Malong’s insistence, Katie got
out of the pool and rested for a few minutes. Malong then asked Katie whether
she wished to dive again, and Katie said she did. Katie dove into the water,
bobbed to the surface, and began to swim toward the edge of the pool. As Katie
did so, Malong momentarily turned her attention away from Katie. When Malong
5
looked back no more than 15 seconds later, Katie had disappeared from her sight.
After Malong and others looked for Katie somewhere between two and five
minutes, an air horn blew and the pool was evacuated. Lifeguards pulled Katie
from the bottom of the pool, and she died the next day.
Katie’s parents, Terral and Maureen Janeway, filed a wrongful death action
alleging the accident was caused by the negligence of the City and Malong.
Relying upon the release, defendants moved unsuccessfully for summary
judgment and summary adjudication. Defendants then sought relief in the Court
of Appeal, filing a petition for writ of mandate. (Code Civ. Proc., § 473c, subd.
(m)(1).) As noted earlier, the appellate court denied the petition, holding (1) the
agreement was effective and enforceable insofar as it concerned defendants’
liability for future ordinary negligence, but (2) concluding a release of liability for
future gross negligence generally is unenforceable, and the agreement in this case
did not validly release such liability. As observed above, we address only the
second holding.
II
A
We begin by defining the terms that underlie the issue presented.
“Ordinary negligence” — an unintentional tort — consists of a failure to exercise
the degree of care in a given situation that a reasonable person under similar
circumstances would employ to protect others from harm. (See, e.g., Donnelly v.
Southern Pacific Co. (1941) 18 Cal.2d 863, 869 (Donnelly).)
“Gross negligence” long has been defined in California and other
jurisdictions as either a “want of even scant care” or “an extreme departure from
the ordinary standard of conduct.” (Eastburn v. Regional Fire Protection
Authority (2003) 31 Cal.4th 1175, 1185-1186 (Eastburn), and cases cited; accord,
Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225, 1240 (Colich); Kearl
6
v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1052-1053;
see also, e.g., Prosser & Keeton, The Law of Torts (5th ed. 1984) § 34, pp. 211-
212 (Prosser and Keeton); 57A Am.Jur.2d (2004) Negligence, § 227, p. 296.)4
B
As observed in Gardner v. Downtown Porsche Audi (1986) 180
Cal.App.3d 713, 716 (Gardner), “[t]raditionally the law has looked carefully and
with some skepticism at those who attempt to contract away their legal liability for
the commission of torts.” Courts and commentators have observed that such
releases pose a conflict between contract and tort law. On the one hand is the
freedom of individuals to agree to limit their future liability; balanced against that
are public policies underlying our tort system: as a general matter, we seek to
maintain or reinforce a reasonable standard of care in community life and require
wrongdoers — not the community at large — to provide appropriate recompense
to injured parties.5
4
By contrast, “wanton” or “reckless” misconduct (or “willful and wanton
negligence”) describes conduct by a person who may have no intent to cause
harm, but who intentionally performs an act so unreasonable and dangerous that
he or she knows or should know it is highly probable that harm will result.
(Donnelly, supra, 18 Cal.2d 863, 869; see, e.g., Prosser & Keeton, supra, § 34, pp.
213-214.)
The definition of gross negligence set forth above is not universally
followed; some jurisdictions define that term as tantamount to “wanton” or
“reckless” misconduct. (Prosser & Keeton, supra, § 34, pp. 211-212; 57A Am.
Jur.2d, supra, Negligence, § 232, p. 301; see also post, at fn. 23.)
5
See, e.g., Heil Valley Ranch, Inc. v. Simkin (Colo. 1989) 784 P.2d 781, 784
(releases of future tort liability “stand at the crossroads of two competing
principles: freedom of contract and the responsibility for damages caused by one’s
own negligent acts”); Hanks v. Powder Ridge Restaurant Corp. (Conn. 2005) 885
A.2d 734, 742 (Hanks) (“exculpatory provisions undermine the policy
considerations governing our tort system”).
7
The traditional skepticism concerning agreements designed to release
liability for future torts, reflected in Gardner, supra, 180 Cal.App.3d 713, and
many other cases, long has been expressed in Civil Code section 1668 (hereafter
cited as section 1668) which (unchanged since its adoption in 1872) provides:
“All contracts which have for their object, directly or indirectly, to exempt any one
from responsibility for his [or her] own fraud, or willful injury to the person or
property of another, or violation of law, whether willful or negligent, are against
the policy of the law.”
C
In
Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 (Tunkl),
we applied section 1668 in the context of a release required by a nonprofit
research hospital as a condition of providing medical treatment. In that case, the
plaintiff had signed a contract releasing the operators of the hospital — the
Regents of the University of California — “ ‘from any and all liability’ ” for
“ ‘negligent . . . acts or omissions of its employees’ ” so long as the hospital used
due care in selecting those employees. (Id., at p. 94.) Thereafter, the plaintiff
sued for ordinary negligence based on the treatment received from two of the
hospital’s doctors.
Turning to section 1668, Justice Tobriner’s unanimous opinion for the
court noted that past decisions had differed concerning the reach of that statute
(Tunkl, supra, 60 Cal.2d 92, 96-97), but that those decisions agreed in one
significant respect: they consistently “held that [an agreement’s] exculpatory
provision may stand only if it does not “involve [and impair] ‘the public
interest.’ ” (Id., at p. 96.) Exploring the meaning and characteristics of the
concept of “public interest” as illuminated by the prior cases (id., at pp. 96-98), we
read those precedents as recognizing a general rule that an “exculpatory clause
which affects the public interest cannot stand.” (Id., at p. 98, italics added.)
8
Tunkl next addressed the “factors or characteristics” that underlie the
concept of “public interest” in the context of an agreement releasing liability for
future ordinary negligence. (Tunkl, supra, 60 Cal.2d 92, 98.) In passages widely
quoted and followed or adopted as a guide by numerous out-of-state decisions
addressing the enforceability of such agreements,6 we wrote: “The social forces
that have led to such characterization are volatile and dynamic. No definition of
the concept of public interest can be contained within the four corners of a
formula. The concept, always the subject of great debate, has ranged over the
whole course of the common law; rather than attempt to prescribe its nature, we
can only designate the situations in which it has been applied. We can determine
whether the instant contract does or does not manifest the characteristics which
have been held to stamp a contract as one affected with a public interest.” (Tunkl,
supra, 60 Cal.2d at p. 98.)
We found in the prior cases a “rough outline” of the “type of transaction in
which exculpatory provisions will be held invalid,” explaining: “[T]he attempted
but invalid exemption involves a transaction which exhibits some or all of the
following characteristics. It concerns a business of a type generally thought
6
For example, see Hanks, supra, 885 A.2d 734, 742-744; Berlangieri v.
Running Elk Corp. (N.M. 2003) 76 P.3d 1098, 1109-1113; Moore v. Hartley
Motors, Inc. (Alaska 2001) 36 P.3d 628, 631; Dalury v. S-K-I, Ltd. (Vt. 1995) 670
A.2d 795, 797-799 (Dalury); Kyriazis v. University of West Virginia (W.Va. 1994)
450 S.E.2d 649, 653-655 (Kyriazis); Wagenblast v. Odessa Sch. No. 105-157-166J
(Wn. 1988) 758 P.2d 968, 971-973 (Wagenblast); Milligan v. Big Valley Corp.
(Wyo. 1988) 754 P.2d 1063, 1066-1067; Krohnert v. Yacht Systems Hawaii, Inc.
(Haw.Ct.App. 1983) 664 P.2d 738, 744; Jones v. Dressel (Colo. 1981) 623 P.2d
370, 376-378; Porubiansky v. Emory University (Ga.Ct.App. 1980) 275 S.E.2d
163, 167-169; Olson v. Molzen (Tenn. 1977) 558 S.W.2d 429, 431.
9
suitable for public regulation. The party seeking exculpation is engaged in
performing a service of great importance to the public, which is often a matter of
practical necessity for some members of the public. The party holds himself out
as willing to perform this service for any member of the public who seeks it, or at
least for any member coming within certain established standards. As a result of
the essential nature of the service, in the economic setting of the transaction, the
party invoking exculpation possesses a decisive advantage of bargaining strength
against any member of the public who seeks his services. In exercising a superior
bargaining power the party confronts the public with a standardized adhesion
contract of exculpation, and makes no provision whereby a purchaser may pay
additional reasonable fees and obtain protection against negligence. Finally, as a
result of the transaction, the person or property of the purchaser is placed under
the control of the seller, subject to the risk of carelessness by the seller or his
agents.” (Tunkl, supra, 60 Cal.2d 92, 98-101, fns. omitted.)
We continued our analysis in Tunkl by stressing that considerations of
public policy did not bar all contracts releasing future liability for negligence,7 and
by drawing a distinction between such permissible releases and those that
implicate at least some of the circumstances described above. (Tunkl, supra, 60
Cal.2d 92, 101.) We commented that when certain of these characteristics are
present, the transaction is such that “the releasing party does not really acquiesce
voluntarily in the contractual shifting of the risk,” and further that when the
“service is one which each member of the public, presently or potentially, may
7
We observed: “[O]bviously no public policy opposes private, voluntary
transactions in which one party, for a consideration, agrees to shoulder a risk
which the law would otherwise have placed upon the other party . . . .” (Tunkl,
supra, 60 Cal.2d 92, 101.)
10
find essential to him,” the releasor “faces, despite his economic inability to do so,
the prospect of a compulsory assumption of the risk of another’s negligence.”
(Id., at p. 101.)8 Applying the public interest characteristics articulated above to
the facts of the transaction then before us in Tunkl, we concluded that the release
exhibited not only some of those characteristics, but all of them, and that the
contract of exculpation for negligence committed by the hospital’s employee
doctors “affect[ing] the public interest” was invalid. (Id., at pp. 101-102.)9
D
In subsequent decisions, California courts have invalidated releases of
liability for future ordinary negligence under the analysis set forth in Tunkl, supra,
60 Cal.2d 92, when, guided by Tunkl’s public interest discussion, the court
determines that a particular release concerns a service that transcends a purely
8
In this regard we also observed: “The public policy of this state has been,
in substance, to posit the risk of negligence upon the actor; in instances in which
this policy has been abandoned, it has generally been to allow or require that the
risk shift to another party better or equally able to bear it, not to shift the risk to the
weak bargainer.” (Tunkl, supra, 60 Cal.2d at p. 101.)
9
Commenting further on the concept of “public interest,” we emphasized the
public’s concern with respect to some types of otherwise private agreements: “We
must note, finally, that the integrated and specialized society of today, structured
upon mutual dependency, cannot rigidly narrow the concept of the public interest.
From the observance of simple standards of due care in the driving of a car to the
performance of the high standards of hospital practice, the individual citizen must
be completely dependent upon the responsibility of others. The fabric of this
pattern is so closely woven that the snarling of a single thread affects the whole.
We cannot lightly accept a sought immunity from careless failure to provide the
hospital service upon which many must depend. Even if the hospital’s doors are
open only to those in a specialized category, the hospital cannot claim isolated
immunity in the interdependent community of our time. It, too, is part of the
social fabric, and prearranged exculpation from its negligence must partly rend the
pattern and necessarily affect the public interest.” (Tunkl, supra, 60 Cal.2d 92,
104.)
11
private agreement and affects the public interest. (E.g., Henrioulle v. Marin
Ventures, Inc. (1978) 20 Cal.3d 512, 517-520 [release of liability for negligence
by residential landlord]; Gavin W. v. YMCA of Metropolitan Los Angeles (2003)
106 Cal.App.4th 662 [release of liability for negligence by provider of child care
services]; Pelletier v. Alameda Yacht Harbor (1986) 188 Cal.App.3d 1551 [release
of liability for negligence by provider of harbor boat berth]; Gardner, supra, 180
Cal.App.3d 713 [release of liability for negligence by auto repair shop]; Vilner v.
Crocker National Bank (1979) 89 Cal.App.3d 732 [release of liability for
negligence relating to banking services]; Akin v. Business Title Corp. (1968) 264
Cal.App.2d 153 [release of liability for negligence by escrow company]; see also
Health Net of California, Inc. v. Department of Health Services (2003) 113
Cal.App.4th 224 (Health Net) [exculpatory clause related to managed health care
for Medi-Cal beneficiaries]; see generally 1 Witkin, Summary of Cal. Law (10th
ed. 2005), Contracts, §§ 662-665, pp. 739-746 (Witkin).) Other jurisdictions have
held similar releases in various analogous contexts to be unenforceable under a
Tunkl-influenced analysis. (See, e.g., Vodopest v. MacGregor (Wn. 1996) 913
P.2d 799, 783 (Vodopest) [invalidating, under Washington law, a release related to
medical research]; Wagenblast, supra, 758 P.2d 968, 971-973 [invalidating, under
Washington law, releases related to interscholastic public high school activities,
including athletic teams and cheerleading].)
E
As the parties observe, no published California case has upheld, or voided,
an agreement purporting to release liability for future gross negligence. Some
decisions have stated, in dictum, that such a release is unenforceable. (Farnham v.
Superior Court (1997) 60 Cal.App.4th 69, 74 [“exemptions from all liability for
. . . gross negligence . . . have been consistently invalidated”]; Health Net, supra,
113 Cal.App.4th 224, 234 [liability for future gross negligence cannot be
12
released].) Others carefully have specified that liability for “ordinary” or “simple”
negligence generally may be released (that is, so long as doing so is consistent
with Tunkl, supra, 60 Cal.2d 92) — thereby implicitly differentiating gross
negligence from the class of conduct as to which liability generally may be
released.10 Indeed, for more than three decades, Witkin has asserted that
California law categorically bars the prior release of liability for future gross
negligence: “The present view is that a contract exempting from liability for
ordinary negligence is valid where no public interest is involved . . . . [¶] But
there can be no exemption from liability for intentional wrong [or] gross
negligence . . . .” (1 Witkin, supra, Contracts, § 660, pp. 737-738, italics added;
see also 1 Witkin, Summary of Cal. Law (9th ed. 1987), Contracts, § 631, p. 569
[same]; 1 Witkin, Summary of Cal. Law (8th ed. 1973), Contracts, § 485, pp. 411-
412 [essentially identical]; 1 Witkin, Summary of Cal. Law (7th ed. 1960),
Contracts, § 200, p. 226 [“The Contracts Restatement declares that a person can
contract to exempt himself from liability for ordinary negligence, but not for gross
negligence”].) As defendants observe, however, Witkin does not cite any relevant
California decision in support of that proposition.
10
See Buchan v. United States Cycling Federation, Inc. (1991) 227
Cal.App.3d 134, 150 (Buchan) (generally, contracts that “ ‘seek to exempt one
from liability for simple negligence’ ” are valid); Madison v. Superior Court
(1988) 203 Cal.App.3d 589, 599 (Madison) (same); Hulsey v. Elsinore Parachute
Center (1985) 168 Cal.App.3d 333, 342 (Hulsey) (§ 1668 “does not invalidate
contracts which seek to except one from liability for simple negligence”).
13
On the other hand, as defendants and their amici curiae11 also observe, a
number of cases have upheld agreements insofar as they release liability for future
ordinary negligence in the context of sports and recreation programs, on the basis
that such agreements do not concern necessary services, and hence do not
transcend the realm of purely private matters and implicate the “public interest”
under Tunkl, supra, 60 Cal.2d 92. Our lower courts have upheld releases of
liability concerning ordinary negligence related to gymnasiums and fitness
clubs,12 auto and motorcycle racing events,13 ski resorts and ski equipment,14
11
Amici curiae supporting defendants are: (1) the National Association of
Stock Car Racing, Inc. (NASCAR) and the California Speedway Corporation;
(2) Bally Total Fitness Corporation and 24 Hour Fitness USA, Inc.; (3) the Sierra
Club; (4) the League of California Cities and the California State Association of
Counties; and (5) the International Health, Racquet, and Sportsclub Association
and the California Clubs of Distinction.
12
See Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351
(Benedek); Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733; Sanchez
v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62; Leon v. Family Fitness
Center (#107), Inc. (1998) 61 Cal.App.4th 1227; YMCA of Metropolitan Los
Angeles v. Superior Court (1997) 55 Cal.App.4th 22 (YMCA); Randas v. YMCA of
Metropolitan Los Angeles (1993) 17 Cal.App.4th 158.
13
See Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th
1007 (Allabach); National & Internat. Brotherhood of Street Racers, Inc. v.
Superior Court (1989) 215 Cal.App.3d 934; Kurashige v. Indian Dunes, Inc.
(1988) 200 Cal.App.3d 606; Coates v. Newhall Land & Farming, Inc. (1987) 191
Cal.App.3d 1; Hoffman v. Sports Car Club of America (1986) 180 Cal.App.3d
119; McAtee v. Newhall Land & Farming Co. (1985) 169 Cal.App.3d 1031.
14
See Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253
(Platzer); Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354; Allan v. Snow
Summit, Inc. (1996) 51 Cal.App.4th 1358; Olsen v. Breeze, Inc. (1996) 48
Cal.App.4th 608; Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715.
14
bicycle races,15 skydiving or flying in “ultra light” aircraft,16 and various other
recreational activities and programs such as horseback riding, white-water rafting,
hypnotism, and scuba diving.17 Most, but not all, other jurisdictions have held
similarly.18 In light of these decisions, some more recent appellate decisions have
concluded categorically that private agreements made “in the recreational sports
context” releasing liability for future ordinary negligence “do not implicate the
public interest and therefore are not void as against public policy.” (E.g.,
Benedek, supra, 104 Cal.App.4th at pp. 1356-1357.)
III
In the absence of an authoritative discussion in any California opinion
concerning the enforceability of an agreement releasing liability for future gross
negligence, we consider the law of other jurisdictions. We find that the vast
majority of decisions state or hold that such agreements generally are void on the
ground that public policy precludes enforcement of a release that would shelter
15 See
Buchan, supra, 227 Cal.App.3d 134; Bennett v. United States Cycling
Federation (1987) 193 Cal.App.3d 1485; Okura v. United States Cycling
Federation (1986) 186 Cal.App.3d 1462.
16 See
Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748; Powers v.
Superior Court (1987) 196 Cal.App.3d 318; Hulsey, supra, 168 Cal.App.3d 333.
17 See
Guido v. Koopman (1991) 1 Cal.App.4th 837 (horseback riding); Saenz
v. Whitewater Voyages, Inc. (1991) 226 Cal.App.3d 758 (Saenz) (white-water
rafting); Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559
(Hohe) (hypnotism demonstration); Madison, supra, 203 Cal.App.3d 589 (scuba
diving).
18
See, e.g., cases cited in Vodopest, supra, 913 P.2d 779, 848-849; Hanks,
supra, 885 A.2d 734, 752-753 and footnote 5 (dis. opn. of Norcott, J.); Arango
and Trueba, Jr., The Sports Chamber: Exculpatory Agreements Under Pressure
(1997) 14 U. Miami Ent. & Sports L.Rev. 1, 10-16 (Arango and Trueba); 57A
American Jurisprudence Second, supra, Negligence, section 65, pages 135-136;
but see cases cited post, at part IV.C.2.b.
15
aggravated misconduct. (See, e.g., Xu v. Gay (Mich.Ct.App. 2003) 668 N.W.2d
166, 170 (Xu); Zavras v. Capeway Rovers Motorcycle Club (Mass.App.Ct. 1997)
687 N.E.2d 1263, 1265 (Zavras); Wolf v. Ford (Md. 1994) 644 A.2d 522, 525;
New Light Co. v. Wells Fargo Alarm (Neb. 1994) 525 N.W.2d 25, 29-31 (New
Light); Wheelock v. Sport Kites, Inc. (D. Hawaii 1993) 839 F.Supp. 730, 736
(Wheelock) [applying Hawaii law]; Boyce v. West (Wn.Ct.App. 1993) 862 P.2d
592, 597 (Boyce); Sommer v. Federal Signal Corp. (N.Y. 1992) 593 N.E.2d 1365,
1370-1371; Buckner v. Varner (Tenn.Ct.App. 1990) 793 S.W.2d 939, 941; Wade
v. Watson (N.D.Ga. 1981) 527 F.Supp. 1049, 1051-1052 [applying Ga. law];
Shelby Mutual Insurance Co. v. City of Grand Rapids (Mich.Ct.App. 1967) 148
N.W.2d 260, 262.)
A
The text writers reflect this majority rule. For example, in Champion,
Fundamentals of Sports Law (1990), the author observes: “[I]t is universally held
that a release will not bar a claim for gross negligence. That is true even though
the same exculpatory clause would bar an [action] for simple negligence.” (Id.,
§ 11.2, p. 209, italics added; see also id., § 11.6, p. 215.) Leading treatises are in
accord; indeed, some of them state categorically that any attempt to release
liability for future gross negligence is “void” as against public policy.19 Yet other
19
See 6A Corbin on Contracts (1962) section 1472, pages 596-597 (“It is
generally held that those who are not engaged in public service may properly
bargain against liability for harm caused by their ordinary negligence in
performance of a contractual duty; but such an exemption is always invalid if it
applies to harm wilfully inflicted or caused by gross or wanton negligence”
[italics added, fn. omitted]); 15 Corbin on Contracts (rev. ed. 2003) section 85.18,
page 455 (“The general rule of exculpatory agreements is that a party may agree to
exempt another party from tort liability if that tort liability results from ordinary
negligence. Courts do not enforce agreements to exempt parties from tort liability
if the liability results from that party’s own gross negligence, recklessness, or
(Footnote continued on next page.)
16
treatise writers and law review authors have offered similar, albeit slightly
moderated characterizations of the law,20 reflecting the circumstance that there are
(Footnote continued from previous page.)
intentional conduct” [italics added]); 8 Williston on Contracts (4th ed. 1998)
section 19:23, pages 291-292 (“An attempted exemption from liability for a future
intentional tort or crime, or for a future willful or grossly negligent act is generally
held void . . . .” [italics added, fns. omitted]); see also Lindahl, 2 Modern Tort Law
(2002) section 22:2, page 22-2 (“It is well settled that one may not by contract
exculpate himself or herself from liability for willful and wanton conduct or gross
negligence” [italics added, fns. omitted]); 57A American Jurisprudence Second,
supra, Negligence, section 58, pages 127-128 (“It has been held that a person may
not exonerate himself or herself from liability for intentional torts, for willful or
wanton misconduct, or for gross negligence by the use of exculpatory language;
such a provision is void as against public policy. Thus, to the extent that
agreements purport to grant exemption from liability for willful or grossly
negligent acts, they are wholly void, and an injured party may recover for acts of
gross negligence despite a valid release for negligence” [italics added, fns.
omitted]).
20
For example, see 1A Speiser et al., The American Law of Torts (2003)
section 5:39, pages 540-541 (“The courts are pretty well agreed that by use of
exculpatory language, one may not exonerate himself of liability for intentional
tort, for wilful or wanton misconduct, or for gross negligence”); Connell and
Savage, Releases: Is There Still a Place for Their Use by Colleges and
Universities? (2003) 29 J. Coll. & U. L. 579, 603 (“Courts generally agree that
one may not exonerate himself or herself from liability for willful or wanton
misconduct, for gross negligence, or for intentional torts, even if there is broad
exculpatory language”); Nelson, The Theory of the Waiver Scale: An Argument
Why Parents Should Be Able to Waive Their Children’s Tort Liability Claims
(2002) 36 U.S.F. L.Rev. 535, 552 (Nelson) (regarding purported releases of
liability for gross negligence or recklessness, “courts generally agree that the
heightened public policy interests in dissuading such conduct outweigh the
individual right to contract,” and “[m]ost states . . . prohibit waivers from releasing
claims for gross negligence or anything else rising above ‘garden variety’
negligence”); King, Exculpatory Agreements for Volunteers in Youth Activities —
The Alternative to “Nerf®” Tiddlywinks (1992) 53 Ohio St. L.J. 683, 728 (King)
(“a majority of courts . . . hold that exculpatory agreements are unenforceable if
defendant’s conduct constituted gross negligence”); see also Arango and Trueba,
(Footnote continued on next page.)
17
at least a handful of cases from a few jurisdictions that, without discussing the
general rule or authorities set forth above, enforce contracts releasing liability for
future gross negligence in the context of agreements signed by motor vehicle
racing participants.21
B
The reasoning of the foregoing out-of-state decisions holding that liability
for future gross negligence never can, or generally cannot, be released, is based
(Footnote continued from previous page.)
supra, 14 U. Miami Ent. & Sports L.Rev. 1, 13 (noting that recreational releases
attempting to exculpate for gross negligence have been voided on public policy
grounds); Holcomb, The Validity and Effectiveness of Pre-Injury Releases of
Gross Negligence in Texas (1998) 50 Baylor L.Rev. 233, 241; Springer, Releases:
An Added Measure of Protection from Liability (1987) 39 Baylor L.Rev. 487, 502-
503.
21
See Maness v. Santa Fe Park Enterprises (Ill.App.Ct.1998) 700 N.E.2d
194, 196-199 (enforcing agreement releasing liability for “negligence or gross
negligence,” and declining to recognize a tort claim for “outrageous misconduct”);
Theis v. J & J Racing Promotions (Fla.Dist.Ct.App. 1990) 571 So.2d 92, 94
(release of liability for “negligence” “must be construed as intended to encompass
all forms of negligence, simple or gross negligence”); Barnes v. New Hampshire
Karting Ass’n, Inc. (N.H. 1986) 509 A.2d 151, 155 (enforcing release of liability
for “negligence,” and declining to “create” a cause of action for gross negligence);
Valeo v. Pocono Intern. Raceway, Inc. (Pa.Super.Ct. 1985) 500 A.2d 492, 493
(release for “negligence” also releases for gross negligence).
Two other decisions, both concerning burglar alarm services, uphold a
release as to gross negligence, but allow suit to proceed on other grounds. (See
Tessler and Son, Inc. v. Sonitrol Security Systems of Northern New Jersey (N.J.
Super.Ct.App.Div. 1985) 497 A.2d 530 (release of liability for “negligence” also
released gross negligence “in the circumstances of this case”; the court allowed the
action to proceed on a theory of “wanton misconduct” — that is, recklessness); L.
Luria & Son, Inc. v. Honeywell, Inc. (Fla.Dist.Ct.App. 1984) 460 So.2d 521
(release of liability for “negligence” and limitation of damages also releases
liability for gross negligence; court allowed the matter to proceed on a fraud
theory).)
18
upon a public policy analysis that is different from the “public interest” factors
considered under Tunkl, supra, 60 Cal.2d 92. Tunkl’s public interest analysis
focuses upon the overall transaction — with special emphasis upon the importance
of the underlying service or program, and the relative bargaining relationship of
the parties — in order to determine whether an agreement releasing future liability
for ordinary negligence is unenforceable. By contrast, the out-of-state cases cited
and alluded to above, declining to enforce an agreement to release liability for
future gross negligence, focus instead upon the degree or extent of the misconduct
at issue, as well as the “public policy to discourage” (or at least not facilitate)
“aggravated wrongs.” (Prosser & Keeton, supra, § 68, p. 484.) Those cases hold,
in essence, that an agreement that would remove a party’s obligation to adhere to
even a minimal standard of care, thereby sheltering aggravated misconduct, is
unenforceable as against public policy. (E.g., New Light, supra, 525 N.W.2d 25,
29-31; Zavras, supra, 687 N.E.2d 1263, 1265; Wheelock, supra, 839 F.Supp. 730,
736.)
IV
Defendants and their supporting amici curiae argue that we should not be
guided by these out-of-state cases and authorities, for three reasons. They assert
that (1) enforcement of agreements releasing liability for future gross negligence is
mandated by section 1668, and a contrary rule would violate both that statute and
the holding in Tunkl, supra, 60 Cal.2d 92; (2) many out-of-state decisions
supporting the proposition that future gross negligence cannot be released are
distinguishable and hence inapt; and (3) considerations of public policy, properly
understood, mandate not the majority rule — generally voiding releases of liability
for future gross negligence — but the opposite, that is, a rule enforcing releases of
liability for future gross negligence.
19
A
1
Defendants and some of their supporting amici curiae observe that section
1668, which as noted ante, at part II.B, bars enforcement of agreements releasing
one from responsibility for his or her “own fraud, or willful injury to the person or
property of another, or violation of law, whether willful or negligent,” does not list
gross negligence as one of the types of liability that may not be released. They
contrast section 1668’s language with section 2175 of the Civil Code (also enacted
in 1872), which specifies that common carriers may not enforce releases of
liability for future gross negligence. Defendants and their amici curiae argue that
section 1668 thus represents an implied legislative determination to allow releases
of liability for gross negligence, as long as the release does not affect the public
interest under the principles of Tunkl, supra, 60 Cal.2d 92; and they assert section
1668 precludes courts from voiding releases on any public policy basis not set
forth in that statute.
In this respect we agree with the Court of Appeal below, which observed
that section 1668 “has not been . . . interpreted to authorize any and all releases
that are not expressly invalidated.” As the lower court also noted, “Tunkl itself
went beyond the language of Civil Code section 1668 to invalidate releases of
liability for negligence under certain circumstances . . . .” To be more explicit:
our unanimous decision in Tunkl, supra, 60 Cal.2d 92, did precisely what
defendants and their supporting amici curiae assert is precluded by section
1668 — our decision found a release of liability for future ordinary negligence
void on public policy grounds other than those set forth in section 1668. Indeed,
Tunkl sets forth a categorical rule: Any exculpatory clause (even one releasing
liability for future ordinary negligence) is unenforceable if it relates to a
transaction that adequately exhibits at least some of the six characteristics set forth
20
in that case, and thereby “affects the public interest.” We could not accept the
statutory argument advanced by defendants and their supporting amici curiae,
without at the same time fundamentally undermining and effectively overruling
Tunkl — and we decline any implied invitation to do so.22 Accordingly, we reject
defendants’ argument that, by enacting section 1668 more than 130 years ago, our
Legislature established a policy generally allowing releases of liability for future
gross negligence, and hence a policy precluding this court from adopting, on
public policy grounds, the opposite — and clearly majority — rule.
2
We also reject the similar argument, advanced by defendants and their
amici curiae, that we may not recognize or employ, as a basis for invalidating a
release, any public policy rationale different from that set out in our decision in
Tunkl, supra, 60 Cal.2d 92.
As we have observed ante, at part III.B, the out-of-state decisions and other
22
In this regard, the analysis proposed in Justice Kennard’s concurring and
dissenting opinion, post, appears problematic and internally inconsistent. That
opinion argues, post, in part II, that because section 1668 does not list gross
negligence as a matter that may not be released, a court-made rule embracing the
clear majority approach and generally invalidating releases of liability for gross
negligence usurps the Legislature’s authority. Justice Baxter’s dissenting opinion,
post, embraces this view as well. But as noted above, Tunkl itself sets forth a
similarly categorical rule: Pursuant to Tunkl, no exculpatory clause (even one
releasing liability for future ordinary negligence) that relates to a transaction
adequately exhibiting at least some of the six characteristics set forth in that case,
and that thereby “affects the public interest,” (Tunkl, supra, 60 Cal.2d 92, 98) is
enforceable. Accordingly, if the statutory construction analysis employed by
Justice Kennard’s concurring and dissenting opinion were consistently applied,
Tunkl itself would be viewed as a usurpation of legislative authority. And yet
neither of the separate opinions in this case adopts that view. Indeed, Justice
Kennard’s concurring and dissenting opinion, post, in part III, far from
questioning Tunkl, embraces and extends it in a novel manner.
21
authority holding agreements releasing liability for future gross negligence to be
unenforceable are based, not on Tunkl’s public interest, “transaction-focused”
analysis, but instead upon a separate and different public policy rationale focusing
upon the degree or extent of the misconduct at issue, in order to discourage (or at
least not facilitate) aggravated wrongs. Defendants and their amici curiae,
however, assert that if a particular agreement releasing liability for “negligence”
is, as the Court of Appeal found in the present case, enforceable under the Tunkl
public interest analysis (an issue that, as observed ante, at fn. 1, we do not
address), then, also pursuant to Tunkl, such an agreement “can and should be
enforced for all negligence” — that is, ordinary and gross negligence. Justice
Baxter, in his dissenting opinion in this matter, post, embraces the same view.
We did not address in Tunkl whether an agreement purporting to release
liability for future gross negligence could be enforced; we considered only the
circumstances in which a release of liability for the type of negligence at issue in
that case — future ordinary negligence — might be unenforceable. Our
recognition in Tunkl that the concept of “public interest” is dynamic, not static;
our refusal to rigidly “prescribe its nature”; and our explication of only a “rough
outline” of the type of transaction as to which a release of liability for ordinary
negligence would be unenforceable (Tunkl, supra, 60 Cal.2d at p. 98), all belie the
suggestion that we now should read Tunkl as implicitly foreclosing a different
public policy analysis in the context of an agreement purporting to release liability
for future gross negligence. Certainly, nothing in Tunkl is inconsistent with the
public-policy-based majority rule described above. Nor can Tunkl reasonably be
read to stand for the proposition that, assuming Tunkl’s public interest factors do
not preclude enforcement of an agreement releasing liability for future ordinary
negligence, this same agreement also should, or even may, be construed and
enforced to release liability for future gross negligence.
22
B
Defendants contend that many out-of-state decisions supporting the
proposition that liability for future gross negligence cannot be released arise in
jurisdictions that define this form of negligence not as California does (as either
(1) a failure to exercise even slight care, or (2) an extreme departure from the
ordinary standard of conduct — see ante, at pt. II.A), but instead define that term
as conduct tantamount to wanton, reckless, or willful misconduct.23 Even if some
decisions arguably are distinguishable on that basis, however, significant other
out-of-state authority is not so readily distinguishable.
For example, the State of Washington, which views gross negligence
consistently with the California definition, has long held void and unenforceable
any attempted release of liability for a negligent act that “falls greatly below the
standard established by law for the protection of others.” (Vodopest, supra, 913
P.2d 779, 783, italics added.)24 The same approach appears to apply in
Massachusetts, which also long has viewed gross negligence consistent with the
23 See,
e.g.,
Xu, supra, 668 N.W.2d 166, 169-170; see generally 57A
American Jurisprudence Second, supra, Negligence, section 59, page 128
(asserting that in the context of reviewing contractual releases of liability, gross
negligence is viewed as tantamount to recklessness — but citing for that
proposition only one New York decision, Lubell v. Samson Moving & Storage,
Inc. (N.Y.App.Div. 2003) 763 N.Y.S.2d 30, 31-32).
24
See also Scott v. Pacific West Mountain Resort (Wn. 1992) 834 P.2d 6, 10
(Scott); McCutcheon v. United Homes Corporation (Wn. 1971) 486 P.2d 1093,
1095 (tracing this rule to the Restatement First of Contracts, § 574, com. a.,
p. 1080, which in turn defines “gross negligence” as “conduct falling greatly
below” “the standard established by law for the protection of others against
unreasonable risk of harm”); see generally Boyce, supra, 862 P.2d 592, 597, and
cases cited (exculpation agreement releases liability for “ordinary,” but not
“gross,” negligence — and leaves the plaintiff free to allege and establish an
action for gross negligence).
23
California definition. (See Zavras, supra, 687 N.E.2d 1263, 1265-1266 & fn. 4
[noting general rule that liability for “ordinary” negligence may be released, but
that liability for “gross” negligence —defined as the “ ‘absence of slight diligence,
or want of even scant care’ ” — may not]; see also Sharon v. City of Newton
(Mass. 2002) 769 N.E.2d 738, 748, fn. 12 (Sharon) [citing Zavras with approval].)
Similarly, Nebraska, which also long has viewed gross negligence consistently
with the California definition, has refused to permit the release of liability for such
future conduct. (New Light, supra, 525 N.W.2d 25, 30-31 [defendant barred from
insulating itself for damages caused by its own gross negligence, defined as failure
to employ even “slight care” in the performance of its duty].) In other words, it
appears that these states — and Washington in particular, for many decades —
have enforced what is effectively the same rule that defendants and their amici
curiae assert should be rejected as unwarranted and unworkable in California.
C
Ultimately, defendants and their amici curiae argue that rejection of the
majority rule described above, and adoption of the opposite rule proposed by
them, is mandated by public policy, as they perceive it. They stress the asserted
uncertainty of the gross negligence standard and argue that unless providers of
recreational services and related programs can be assured that agreements
purporting to release liability for future gross negligence will be enforced,
(1) subsequent suits against recreational service providers — private, public, for-
profit, or nonprofit — will not be readily resolvable in favor of defendants on
summary judgment, with the result that unwarranted liability will be threatened or
imposed, and (2) service providers will react by greatly restricting, or simply
declining to afford, such services or programs in California.
1
We do not agree that adoption of the foregoing majority rule in the setting
24
of the definition of gross negligence employed in this state (failure to exercise
even slight care, or an extreme departure from the ordinary standard of conduct)
would prove unworkable, or that application of such a standard would frustrate the
proper termination of suits on summary judgment or foster untoward liability. As
the parties acknowledge, the same definition long has been employed in cases
applying numerous California statutes that confer limited immunity for negligence
while expressly exempting immunity for “gross negligence.”25 Despite the
concerns of defendants and their amici curiae, in light of the experience under
these statutes it does not appear that the application of a gross negligence standard,
as defined in California, has a tendency to impair the summary judgment process
or confuse juries and lead to judgments erroneously imposing liability. To the
contrary: “These statutes reflect the sound legislative judgment that, under a gross
negligence standard, meritless suits will typically be disposed of by summary
judgment; that when a case goes to trial the jury, instructed on this standard, will
be less likely to confuse injury with fault; and that verdicts reflecting such
confusion will be more readily reversed, whether by the trial or appellate court,
than under an ordinary negligence standard.” (Kahn v. East Side Union High
School Dist. (2003) 31 Cal.4th 990, 1020 (conc. opn. of Werdegar, J.).)26 In this
25
For example, see Civil Code, section 2175 (granting qualified immunity for
common carriers); Government Code, section 831.7, subdivision (b) (qualified
immunity of public entity or employee for hazardous recreational activity on
public property); Civil Code, section 1714.2, subdivision (b) (qualified immunity
of person rendering cardiopulmonary resuscitation at emergency scene); Business
and Professions Code, section 2727.5 (qualified immunity of registered nurse
rendering care at scene of emergency but outside scope of employment).
26
The Court of Appeal below similarly rejected “the view that gross
negligence lacks clear limits,” observing: “The law is filled with difficult
distinctions, yet our juries have managed to fulfill their role in making factual
determinations based on them. There is no reason to believe that a jury will be
(Footnote continued on next page.)
25
respect, we emphasize the importance of maintaining a distinction between
ordinary and gross negligence, and of granting summary judgment on the basis of
that distinction in appropriate circumstances. (See Decker v. City of Imperial
Beach (1989) 209 Cal.App.3d 349, 358 [“Generally it is a triable issue of fact
whether there has been such a lack of care as to constitute gross negligence” —
“but not always”]; see also, e.g., Eastburn, supra, 31 Cal.4th 1175, 1185-1186
[trial court properly precluded amendment of a complaint to allege gross
negligence]; DeVito v. State of California (1988) 202 Cal.App.3d 264, 272
[summarily concluding that a complaint “alleges no facts showing ‘an extreme
departure from the ordinary standard of care’ ”].)
2
As defendants observe, some cases and other authorities assert, albeit
without citing any empirical evidence, that upholding agreements releasing
liability for future negligence is necessary in order to ensure the continued
availability of sports recreation and related programs. (E.g., Hohe, supra, 224
Cal.App.3d 1559, 1564; YMCA, supra, 55 Cal.App.4th 22, 27-28.)27 Defendants
(Footnote continued from previous page.)
unable to distinguish between ordinary and gross negligence, or that instructing
the jury would be more difficult than instructing the jury in a variety of other
circumstances where lines between liability and nonliability must be drawn with
some acumen. (See Pratt v. Western Pac. R. R. Co. (1963) 213 Cal.App.2d 573,
579-580 [consider[ing] jury instruction under statute preventing common carrier
from releasing liability for gross negligence].)”
27
See also, e.g., Allabach, supra, 46 Cal.App.4th 1007, 1016 (asserting that,
with regard to properly released negligence claims, “ ‘[d]efense costs are
devastating’ ” and that “ ‘[u]nless courts are willing to dismiss such actions
without trial, many popular and lawful recreational activities are destined for
extinction’ ”); see generally Sharon, supra, 769 N.E.2d 738, 747-748; Zivich v.
Mentor Soccer Club, Inc. (Ohio 1998) 696 N.E.2d 201, 371-372 (Zivich); King,
(Footnote continued on next page.)
26
and their amici curiae embrace this broad premise and argue by analogy that the
(Footnote continued from previous page.)
supra, 53 Ohio St. L.J. 683, 689 (reporting survey results from 1986 and asserting
that “fear of liability exposure and of litigation in general is damaging . . . efforts
at volunteer recruitment”); Judges, Of Rocks and Hard Places: The Value of Risk
Choices (1993) 42 Emory L.J. 1, 29-34 (reporting anecdotal information from the
late 1980’s and early 1990’s, and limited empirical evidence revealing that the
rock climbing industry and related service providers are “deeply concerned about
the issue of tort law and its impact on risk choice”); Heidt, The Avid Sportsman
and the Scope for Self-Protection: When Exculpatory Clauses Should Be
Enforced (2004) 38 U. Rich. L.Rev. 381, 381-382 (Heidt) (recounting anecdotal
reports of decreased availability of opportunities in various jurisdictions to use
three-meter diving boards, ride mechanized bulls or horses unaccompanied, or rent
power boats for water-skiing); see also Arango and Trueba, supra, 14 U. Miami
Ent. & Sports L.Rev. 1, 30-33 (questioning whether certain recreation industries
can “survive” unless agreements releasing liability for future negligence are
upheld); Roseman-Orr, Recreational Activity Liability in Hawaii: Are Waivers
Worth the Paper on Which They Are Written? (1999) 21 U. Haw. L.Rev. 715, 729
and footnote 114 (noting legislative testimony of charter service provider that
lawsuits will “ ‘end up running our business out of business’ ”); Benard, Little
League Fun, Big League Liability (1997) 8 Marq. Sports L.J. 93, 122 (noting the
“perception” of the threat of liability exposure and statements made at
congressional hearings supporting the Volunteer Protection Act, 42 U.S.C.
§ 14501 et seq. [which grants immunity for negligence that causes injury to
volunteers, but not for gross negligence; see id., § 14503(a)(3)]); but see Popper, A
One-term Tort Reform Tale: Victimizing the Vulnerable (1998) 35 Harv. J. on
Legis. 123, 146 (asserting that only anecdotes, and no empirical evidence, were
offered to support the Volunteer Protection Act: “Beyond the rhetoric and the
natural inclination to assist charities, virtually no facts were placed before
Congress to justify the deprivation of the entitlement to due care”); Heidt, supra,
38 U. Rich. L.Rev. 381, 434 (“Given the multitude of explanations for why an
activity disappears — from changing consumer tastes, to the appearance of
substitute activities — no explanation can be put forth with confidence. As others
have emphasized, even industry experts may not be able to distinguish when an
activity is abandoned due to consumer preference from when it is abandoned due
to increased liability”); Nelson, supra, 36 U.S.F. L.Rev. 535, 555 (as of 2002,
“doomsday predictions of runaway liability for recreational sports leagues” have
not been borne out in practice).
27
same principle applies with respect to agreements releasing liability for future
gross negligence.
Defendants assert that unless recreation service providers dependably can
enforce agreements to release liability for both future ordinary negligence and
future gross negligence, “the inevitable result will be fewer — and more
expensive — programs,” and that (quoting Allabach, supra, 46 Cal.App.4th 1007,
1016) ultimately, “ ‘ “many popular and lawful recreational activities are destined
for extinction.” ’ ”
The various amici curiae in support of defendants echo and amplify these
predictions. For example, amici curiae NASCAR and the California Speedway
Association assert that limiting agreements releasing liability to future ordinary
negligence, while not permitting the release of liability for future gross negligence,
ultimately will “deprive [the public] of the . . . opportunity to participate and
recreate in many . . . cherished [pastimes],” including being spectators at
NASCAR and similar motor vehicle racing events. Likewise, amici curiae Bally
Total Fitness Corporation and 24 Hour Fitness USA, Inc., claim the appellate
decision below, enforcing the release as to negligence but not as to gross
negligence, “[wreaks] havoc on recreational providers,” leading them to a
“precipice from which there will be no return.” Similarly, the brief of the
International Health, Racquet, and Sportsclub Association and California Clubs of
Distinction twice declares that “the effect of [enforcing a release as to negligence
but not as to gross negligence] cannot be overstated” — and suggests that unless
releases of liability for future gross negligence are enforced, there will be “far
reaching and devastating consequences,” rendering commercial health and racquet
clubs “a thing of the past.” Amici curiae Sierra Club, League of California Cities,
and California State Association of Counties make similar, albeit slightly less
strident, assertions.
28
We are sensitive to the policy arguments advanced by defendants and their
amici curiae that caution against rules triggering wholesale elimination of
beneficial recreational programs and services — and we are especially sensitive to
the concerns relating to the continued availability of programs such as the one here
at issue, serving the recreational needs of developmentally disabled children. But
we find no support for such broad predictions in the present setting.
a
Although, as noted, some cases and authorities assert that upholding releases of
liability for ordinary negligence may help ensure the continuation of sports recreation
and related programs (see ante, at fn. 27), we do not discern in those cases any
discussion of an asserted corresponding need to recognize and enforce agreements
releasing liability for future gross negligence,28 and indeed we find little supporting
that position even in the law review literature upon which defendants rely.29 We also
28
In fact, some cases have been careful to distinguish between ordinary and
gross negligence in this context. For example, when, in order to help ensure the
continued availability of recreational services, the Supreme Judicial Court of
Massachusetts, in Sharon, supra, 769 N.E.2d 738, enforced agreements by parents
releasing “ ‘any and all actions, causes of action, [and] claims’ ” (id., at p. 741) of
minor children, the court stressed that its holding “is . . . limited to the claims
before us — and those claims concern ordinary negligence.” (Id., at p. 748, fn.
12.) The court in Sharon further noted, with apparent approval, that cases and
authorities have held releases “effective against liability for ordinary negligence”
but not for “gross negligence,” and the court observed that the defendant in the
case before it “specifically disavows any contention that the release here would
relieve it from liability for gross negligence . . . .” (Ibid.)
29
Defendants cite two law review articles arguing, contrary to the clear
majority rule, that gross negligence and even recklessness should be subject to
exculpation. (See Heidt, supra, 38 U. Rich. L.Rev. 381, 383 [asserting that courts
should enforce such contracts and “routinely dismiss” related suits on summary
judgment “without the need for further discovery of the circumstances
surrounding the injury”]; King, supra, 53 Ohio St. L.J. 683, 728-731 [questioning
the “wisdom” of declining to enforce releases for “recklessness or gross
(Footnote continued on next page.)
29
find it significant that, as observed ante, part IV.B, the States of Washington,
Massachusetts, and Nebraska all effectively bar release of liability for gross
negligence, as that term is defined in California. We would expect that if, based upon
the experience of these sister states, there existed substantial evidence supporting the
ominous forecasts of defendants and their amici curiae concerning the future of
recreational services in California under the same system, defendants and their amici
curiae would highlight that information. And yet, no such information has been
provided to us.
b
Indeed, if the premise of defendants and their amici curiae were correct —
that is, if failing to enforce agreements releasing liability for future gross
negligence would imperil the very existence of sports and recreational
industries — we at least would expect to see some analogous evidence in the
experience of those states that prohibit even agreements releasing liability for
future ordinary negligence. Ordinary negligence, after all, occurs much more
commonly than gross negligence, and hence judicial decisions holding
unenforceable any release of liability for ordinary negligence would, under the
theory of defendants and their amici curiae, pose a much greater threat to the
continued availability of recreational sports programs than would a rule holding
unenforceable releases of liability for gross negligence generally. And yet, as
explained below, in numerous contexts concerning recreational sports and related
(Footnote continued from previous page.)
negligence” because, assertedly, “[t]hese concepts lack clear parameters,” and
arguing that, “especially . . . in situations involving volunteers, when the danger of
risky behavior motivated by greed is absent,” exculpation of liability for gross
negligence should be allowed].)
30
programs, courts categorically have voided agreements releasing liability for
future ordinary negligence without (so far as we can discern) triggering in any
substantial degree the dramatically negative effects predicted by defendants and
their amici curiae.
Many thousands of contracts that have been entered into, releasing liability
for future ordinary negligence in the context of recreational sports and related
programs, are unenforceable in most states. This is so because, although courts in
California30 and a few other states31 have enforced agreements, signed by parents,
releasing liability for future ordinary negligence committed against minor children
in recreational and related settings, that position apparently represents a minority
view. “A clear majority of courts . . . have held that a parent may not release a
minor’s prospective claim for negligence.” (Hawkins ex rel. Hawkins v. Peart
(Utah 2001) 37 P.3d 1062, 1065-1066 [voiding agreement signed on behalf of
30
See Hohe, supra, 224 Cal.App.3d 1559, 1565 (summarily finding
enforceable a release signed by parent on behalf of high school student later
injured in a hypnosis demonstration); Aaris v. Las Virgenes Unified School Dist.
(1998) 64 Cal.App.4th 1112, 1120 (enforcing release signed by mother on behalf
of high school cheerleader injured during practice, and asserting: “It is well
established that a parent may execute a release on behalf of his or her child”); see
also Platzer, supra, 104 Cal.App.4th 1253 (enforcing skiing-related release signed
by parent on behalf of eight year old; decision assumes without discussion that a
parent may execute a release on behalf of his or her child).
31
Decisions by the high courts of Massachusetts and Ohio, citing policy
considerations, have enforced releases signed by parents on behalf of their minor
children. (See Sharon, supra, 769 N.E.2d 738, 744-748; Zivich, supra, 696
N.E.2d 201, 204-207.) Moreover, a Colorado Supreme Court decision declining
to enforce such releases, Cooper v. Aspen Skiing Co. (Colo. 2002) 48 P.3d 1229,
1232-1237, has been abrogated by state legislation. (Colo. Rev. Stat. (2005) § 13-
22-107 (3) & (4) [allowing parents to release minor child’s future claim of
ordinary negligence, but not any claim for a “willful and wanton act or omission, a
reckless act or omission, or a grossly negligent act or omission”].)
31
minor releasing liability for future negligence concerning horseback riding], and
cases and other authorities cited.)32
In addition, we observe that Vermont has voided agreements releasing
liability for future ordinary negligence in the context of recreational skiing and
racing;33 Connecticut has acted similarly concerning “snow tubing” and horseback
riding lessons;34 West Virginia has voided a release of liability for ordinary
32
Accord, Hojnowski v. Vans Skate Park (N.J.Super. Ct. App. Div. 2005) 868
A.2d 1087, 1096-1101 (Hojnowski), and cases and other authorities cited
[skateboarding]; Scott, supra, 834 P.2d 6, 10-12, and cases cited [ski race lesson];
67A Corpus Juris Secundum (2002) Parent and Child, sections 275 and 276, at
pages 381-383; see also Nelson, supra, 36 U.S.F. L.Rev. 535; King, supra, 53
Ohio St. L.J. 683, 714-715, 759 (noting, and recommending legislative abrogation
of, the majority rule).
Plaintiffs and real parties in interest have not raised this issue in the present
wrongful death action, apparently because the agreement in this case (see ante, fn.
3) clearly was addressed not only to claims by a minor, but as well to claims by
parents. (See Scott, supra, 834 P.2d 6, 12 [even though a parent’s release may not
bar a minor’s claim, a “conspicuous and clear exculpatory clause can serve to bar
the parents’ cause of action based upon injury to their child”].) The validity of a
release signed by a parent, on behalf of (and binding) his or her child, is not
presently before us.
33
Dalury, supra, 670 A.2d 795, 797-799 (barring agreements insofar as they
broadly purport to release liability for future negligence related to course design in
the context of recreational skiing; court declined to “undermine the public policy
underlying business invitee law and allow skiers to bear risks they have no ability
or right to control”); Spencer v. Killington, Ltd. (Vt. 1997) 702 A.2d 35, 37-38
(confirming and extending Dalury in context of amateur ski race); see also Umali
v. Mount Snow Ltd. (D.Vt. 2003) 247 F.Supp.2d 567, 572-575 (applying Dalury to
a professional mountain bike race).
34
Hanks, supra, 885 A.2d 734, 741-748 (following the lead of Dalury,
broadly voiding agreements releasing liability for future negligence related to
commercial “snow tubing”); Reardon v. Windswept Farm, LLC (Conn. 2006) 905
A.2d 1156, 1160-1162 (voiding release related to injuries sustained by an
experienced horseback rider when thrown by an excited and bucking horse during
a riding lesson).
32
negligence executed by a university student who was injured while playing “club”
rugby;35 and Washington has voided agreements releasing public school districts
from liability for future ordinary negligence related to interscholastic athletics.36
Virginia long has categorically and broadly voided all preinjury releases, even in
the recreational sports context.37 Perhaps most significantly, the New York
Legislature, for three decades, has barred enforcement of agreements between
operators of “gymnasium[s]” and places of “amusement or recreation, or similar
establishment[s],” and their paying members or customers, purporting to release
liability for future negligence by the operator. (See N.Y. Gen. Oblig. Law, § 5-
326.)38 Pursuant to this statute, New York courts have found releases to be void
35
Kyriazis, supra, 450 S.E.2d 649, 653-655.
36
Wagenblast, supra, 758 P.2d 968, 971-973.
37
Hiett v. Lake Barcroft Community Ass’n (Va. 1992) 418 S.E.2d 894, 895-
897 (Hiett) (adhering to the rule followed in that state since 1890, “universally”
declining to enforce any preinjury release, and voiding a release signed by a
triathlete later seriously injured in the swimming portion of a race).
38
That statute, enacted in 1976, provides: “Every covenant, agreement or
understanding in or in connection with, or collateral to, any contract, membership
application, ticket of admission or similar writing, entered into between the owner
or operator of any pool, gymnasium, place of amusement or recreation, or similar
establishment and the user of such facilities, pursuant to which such owner or
operator receives a fee or other compensation for the use of such facilities, which
exempts the said owner or operator from liability for damages caused by or
resulting from the negligence of the owner, operator or person in charge of such
establishment, or their agents, servants or employees, shall be deemed to be void
as against public policy and wholly unenforceable.” (See generally Seaquist &
Barken, Use of Exculpatory Clauses Is Subject to Wide Variety of Definitions and
Circumstances (Mar./Apr. 2002) 74 N.Y.St. B.J. 27, 28 [discussing the evolving
case law, some of which is described in the text and footnotes, post, as
“expand[ing] the consumer protection afforded by the statute”].)
As explained in Beardslee v. Blomberg (N.Y.App.Div. 1979) 416 N.Y.S.2d
855, 857-858 (conc. opns. of Kane & Mikoll, JJ.), the New York statute was
enacted in part to abrogate the New York high court’s decision in Ciofalo v. Vic
(Footnote continued on next page.)
33
and unenforceable in the context of suits for personal injuries caused by ordinary
negligence related to automobile racing at commercial racetracks;39 skiing and ski
lessons at resorts;40 horseback riding organized and operated by a business firm or
riding stable business;41 recreational parachuting or skydiving lessons;42 flag
football played in a league run by a corporation;43 tennis played at a country club
at which the plaintiff was a member;44 and riding a “mechanical bull” in a bar.45
(Footnote continued from previous page.)
Tanney Gyms, Inc. (N.Y. 1961) 177 N.E.2d 925. In that case, a gymnasium
member signed a release of liability for negligence by the gym operator, and later
was injured when she slipped and fell while using the gym’s facilities. Affirming
summary judgment for the defendant gym, the New York court upheld the release,
finding no “interest of the public therein” and no reason to void the agreement.
(Id., at p. 926.)
39 See
Owen v. R.J.S. Safety Equipment, Inc. (N.Y. 1992) 591 N.E.2d 1184;
Petrie v. Bridgehampton Road Races Corp. (N.Y.App.Div. 1998) 670 N.Y.S.2d
504; Gilkeson v. Five Mile Point Speedway (N.Y.App.Div. 1996) 648 N.Y.S.2d
844; Miranda v. Hampton Auto Raceway, Inc. (N.Y.App.Div. 1987) 515 N.Y.S.2d
291; Gaskey v. Vollersten (N.Y.App.Div. 1985) 488 N.Y.S.2d 922.
40
See Rogowicki v. Troser Management Inc. (N.Y.App.Div. 1995) 623
N.Y.S.2d 47; Blanc v. Windham Mountain Club, Inc. (N.Y.Sup.Ct. 1982) 454
N.Y.S.2d 383, affirmed (N.Y.App.Div. 1983) 459 N.Y.S.2d 447.
41
See Applbaum ex rel. Applbaum v. Golden Acres Farm and Ranch
(N.D.N.Y. 2004) 333 F.Supp.2d 31; Filson v. Cold River Trail Rides Inc.
(N.Y.App.Div. 1997) 661 N.Y.S.2d 841; Brancati v. Bar-U-Farm, Inc.
(N.Y.App.Div. 1992) 583 N.Y.S.2d 660.
42
See Wurzer v. Seneca Sport Parachute Club (N.Y.App.Div. 1978) 411
N.Y.S.2d 763; Bacciocchi v. Ranch Parachute Club, Ltd. (N.Y.App.Div. 2000)
710 N.Y.S.2d 54.
43 See
Williams v. City of Albany (N.Y.App.Div. 2000) 706 N.Y.S.2d 240.
44
See Leftow v. Kutsher’s Country Club Corp. (N.Y.App.Div. 2000) 705
N.Y.S.2d 380.
45
See Meier v. Ma-Do Bars, Inc. (N.Y.App.Div. 1985) 484 N.Y.S.2d 719.
34
We brought the cases from these six states (Connecticut, Utah, Vermont,
Virginia, Washington, and West Virginia) and the New York statute to the parties’
attention and solicited supplemental briefing concerning defendants’ policy
argument that enforcing releases of liability for future ordinary negligence, but not
for future gross negligence, would lead to the demise or substantially diminished
availability of recreational services and programs. Thereafter, pursuant to a
request by defendants, we allowed additional supplemental briefing. The ensuing
briefing, however, disclosed no empirical study suggesting that holdings such as
those described above, precluding the release of liability for future ordinary
negligence (or for that matter, similar holdings under Tunkl, supra, 60 Cal.2d
92),46 have triggered the predicted elimination or even widespread substantial
reduction of the affected services or programs. Indeed, defendants forthrightly
concede in their supplemental briefs that they found no empirical support for such
assertions.
Defendants, caution, however, against any attempt to assess “ ‘the societal
effects of judicial holdings’ ” (quoting Choper, Consequences of Supreme Court
Decisions Upholding Individual Constitutional Rights (1984) 83 Mich. L.Rev. 1,
7), and they suggest that because of legal, economic, social and other differences
between the seven jurisdictions discussed above and California, the experiences of
those states “probably” are not predictive of what might occur in California if we
were to decline to enforce releases of liability for future gross negligence.
46
As observed ante, at part II.D, pursuant to Tunkl, supra, 60 Cal.2d 92,
California courts long have voided agreements releasing liability for future
ordinary negligence in the context of such socially important matters as medical
services, auto repair, banking, and day care — and courts of our sister states have
rendered similar applications of our decision in Tunkl in analogous contexts.
35
Nevertheless, and seemingly in conflict with their own admonition about
attempting to assess the societal effects of judicial holdings, defendants speculate
that the rules employed in the seven jurisdictions described above, declining to
enforce releases of liability for future ordinary negligence, “may have led or may
lead to the diminished availability or even the demise of recreational services and
programs” in those states. Furthermore, defendants suggest that, even without
empirical evidence of any negative effects in those states, but in light of some law
review articles generally predicting such effects if releases of liability for future
ordinary negligence are not enforced (see ante, at fn. 27), we should assume such
effects have occurred and will occur in those jurisdictions, and that such effects
also would occur in California, were we to adopt a rule posing even a
comparatively lesser threat to the continued availability of recreational sports and
sports programs — that is, a rule generally enforcing releases of liability for future
ordinary negligence, but generally declining to enforce releases of liability for
future gross negligence.
We find defendants’ arguments unpersuasive. Of course legal, economic,
social, and other differences can make interjurisdictional comparisons inexact.
But that does not mean we should ignore what might be gleaned from the legal
laboratory that is the product of our federal system, under which states may, and
do, undertake different solutions to common problems.47 The circumstance that
neither defendants nor their supporting amici curiae have found from the
47
(Cf. New State Ice Co. v. Liebmann (1932) 285 U.S. 262, 311 (dis. opn. of
Brandeis, J.) [“It is one of the happy incidents of the federal system” that single
states may “serve as a laboratory” and undertake “novel social and economic
experiments”].)
36
experience of our sister states any substantial empirical evidence supporting their
dire predictions is, we believe, both relevant and telling.
Indeed, it appears that the experience of our sister states has not borne out
the predictions of defendants and their supporting amici curiae. In Virginia and
New York, for example — where, as noted above, agreements to release future
liability for ordinary negligence causing personal injury long have been
categorically barred by case law or generally precluded by statute, as construed by
case law — service providers have been subjected to the potential of liability
substantially greater than that facing their counterparts in California and most
other jurisdictions, which (as observed ante, at part II.E) generally uphold such
releases. And yet, our research suggests that the predicted demise of recreational
opportunities apparently has not come to pass in Virginia or New York.
For example, amicus curiae NASCAR’s brief predicts the downfall of
spectator auto racing unless agreements releasing liability for future gross
negligence regularly are enforced. According to NASCAR’s official Web site,
however, of the 31 NASCAR-affiliated major speedways located in the United
States and Mexico, two are, and long have been, located in Virginia, and one is,
and long has been, located in New York.48 In other words, despite Virginia’s and
New York’s strict “no release of liability for ordinary negligence” rules, which
subject NASCAR to greater potential liability than the mere “no release of liability
48
See <http://www.nascar.com/races/tracks/index.html> (listing all 31
tracks); <http://www.nascar.com/races/tracks/rir/> (Richmond International
Raceway, Richmond, Va.); <http://www.nascar.com/races/tracks/mar/>
(Martinsville Speedway, Martinsville, Va.);
<http://www.nascar.com/races/tracks/wgi/> (Watkins Glen International, Watkins
Glen, N.Y.) (as of July 16, 2007).
37
for gross negligence” rule at issue in the present case, NASCAR-sponsored racing
appears not to have disappeared in those states.
Likewise, amicus curiae Bally Total Fitness Corporation’s prediction of
calamity in the health club industry if releases of liability for future gross
negligence are not enforced appears difficult to reconcile with the prevalence of
that corporation’s business in those two states. Bally’s official Web site discloses
that it operates seven clubs in Virginia, and 36 in New York.49 Amici curiae
International Health, Racquet, and Sportsclub Association and California Clubs of
Distinction similarly assert that commercial recreational services are in danger of
extinction if releases of liability for future gross negligence are not enforced.
According to the 2002 United States Economic Census (Aug. 2005), which reports
on, among other things, each state’s “fitness and recreational sports centers”
(including health, fitness, swimming, racquet, and handball clubs, as well as roller-
skating and ice-skating rinks), in 2002 there were more than 750 such business
locations in Virginia, and more than 1,800 in New York.50 Again, despite the
strict Virginia and New York rules, which subject recreational service providers to
far greater potential liability than the mere “no release of liability for gross
negligence” rule at issue in the present case, it does not appear that commercial
and organized recreational clubs have become “a thing of the past” in those
states.51
49
See <http://bally.know-where.com/BallyFitness2/>, entries for Virginia and
New York (as of July 16, 2007).
50
See U.S. Census Bureau (2002) Business and Government, Economic Fact
Sheet, entries for Virginia and New York
<http://factfinder.census.gov/home/saff/main.html> (as of July 16, 2007).
51
The same appears to be true concerning nonprofit sporting events. For
example, as plaintiffs/real parties in interest observe, 14 years after the Virginia
(Footnote continued on next page.)
38
Nor are we aware of any empirical evidence to suggest, as defendants
postulate, that a holding declining to enforce an agreement purporting to release
liability for future gross negligence would jeopardize programs, such as the one
here at issue, that provide recreational opportunities for developmentally disabled
children — and indeed, initial research casts doubt upon such predictions.52
(Footnote continued from previous page.)
Supreme Court in Hiett, supra, 418 S.E.2d 894, voided an agreement releasing
liability for future ordinary negligence relating to participation in a triathlon, at
least 60 triathlons, biathlons, and duathlons were held in Virginia in 2006, and at
least that many have been scheduled for 2007. (See
<http://www.trifind.com/va.html>, [as of July 16, 2007].)
52
At our request, our court’s reference librarians conducted a search for
presently operating camps or programs similar to the one at issue in this case (that
is, programs offering recreational activities for developmentally disabled children)
in four states: California, Utah, Virginia, and Washington. As observed above,
pursuant to case law in the latter three states, no release — even one purporting to
release liability only for future ordinary, and not gross, negligence — would be
enforceable in the context of a recreational camp or program for developmentally
disabled children. If, as postulated, the unenforceability of releases for gross
negligence would be expected to trigger limitation or curtailment of such camps or
programs, we would expect to see such a result all the more in those jurisdictions
that refuse to enforce even releases of liability for ordinary negligence. And yet
initial information collected suggests no such result, even in jurisdictions that
refuse to enforce releases of liability for ordinary negligence: Our reference staff
identified 92 such camps or programs presently operating in California, six in
Utah, 21 in Virginia, and 16 in Washington. Based upon 2000 and 2006 United
States census figures, it is possible to estimate, for each state, the number of
persons ages five to 15 years who have a mental disability. (U.S. Census Bureau
(2003) Disability Status: 2000 <http://www.census.gov/prod/2003pubs/c2kbr-
17.pdf; [as of July 16, 2007]; U.S. Census Bureau, State & County QuickFacts
<http://quickfacts.census.gov/qfd/states/> [as of July 16, 2007].) From that, it
appears that in each state, such camps or programs are provided at a very similar
camp-to-population ratio: The ratio for California is one camp or program per
approximately 18,000 persons who have a mental disability; approximate figures
for the other states are: Utah, one per 19,500; Washington, one per 18,000; and
Virginia, one per 16,500. Although of course we do not view this empirical
(Footnote continued on next page.)
39
We reject the arguments of defendants and their amici curiae that
considerations of public policy mandate the adoption of a rule under which
agreements releasing liability for future gross negligence always, or even
generally, would be enforced.
V
As then-Justice Traynor observed in Donnelly, supra, 18 Cal.2d 863, the
distinction between “ordinary and gross negligence” reflects “a rule of policy” that
harsher legal consequences should flow when negligence is aggravated instead of
merely ordinary. (Id., at p. 871; accord, e.g., Colich, supra, 198 Cal.App.3d 1225,
1240.)
For the reasons discussed above — that is, adherence to the “public policy
to discourage,” or at least not facilitate, “aggravated wrongs” (Prosser & Keeton,
supra, § 68, p. 484) — and consistent with Donnelly, supra, 18 Cal.2d 863, and
the Court of Appeal below, as well as the vast majority of other jurisdictions, we
conclude that public policy generally precludes enforcement of an agreement that
would remove an obligation to adhere to even a minimal standard of care.53
(Footnote continued from previous page.)
information as dispositive, we note that it fails to provide any support for the
assertions articulated by defendants or their supporting amici curiae, or the
concerns expressed by Justice Baxter, in his dissenting opinion, post, that finding
the release in this case unenforceable as to gross negligence would be likely to
cause programs such as the one here to be severely limited or cancelled.
53
Accord, Tunkl, supra, 60 Cal.2d at pages 101 and 104 (quoted ante, at fns.
8 & 9). It is well established that our courts, like those of other states, may, in
appropriate circumstances, void contracts on the basis of public policy. Of course
“[t]he determination of public policy of states resides, first, with the people as
expressed in their Constitution and, second, with the representatives of the
people — the state Legislature.” (Jensen v. Traders & General Ins. Co. (1959) 52
Cal.2d 786, 794.) As we explained in Jensen, “ ‘unless it is entirely plain that a
(Footnote continued on next page.)
40
Applying that general rule here, we hold that an agreement purporting to release
liability for future gross negligence committed against a developmentally disabled
child who participates in a recreational camp designed for the needs of such
children violates public policy and is unenforceable.54
The Legislature, which already has enacted numerous statutes designed to
protect from unfair liability various participants in and sponsors of socially useful
enterprises (see ante, at fn. 25), is of course free to enact additional legislation
limiting, as necessary, the liability of specific recreational service providers.55 If
(Footnote continued from previous page.)
contract is violative of sound public policy, a court will never so declare. “The
power of the courts to declare a contract void for being in contravention of sound
public policy is a very delicate and undefined power, and . . . should be exercised
only in cases free from doubt.” ’ ” (Id. at p. 794; see also, e.g., Maryland C. Co.
v. Fidelity etc. Co. (1925) 71 Cal.App. 492, 497 [in appropriate circumstances
“courts, following the spirit and genius of the law . . . of a state, may declare void
as against public policy contracts which, though not in terms specifically
forbidden by legislation, are clearly injurious to the interests of society”]; Tunstall
v. Wells (2006) 144 Cal.App.4th 554, 564 [reiterating and applying Maryland
Casualty Co., in concluding that a will’s no contest clause did not violate public
policy] and cases cited; 14 Cal.Jur.3d (1999) Contracts, § 136, pp. 425-427.)
54
Justice Kennard’s concurring and dissenting opinion, post, reaches the
same result under what appears to be a novel modified version of the six-part
Tunkl analysis. No other court of which we are aware has followed that suggested
course. As observed above, the majority rule that we embrace today does not rely
upon the Tunkl factors, but instead simply holds that an agreement purporting to
relieve an actor of liability for aggravated misconduct, generally is unenforceable
as being against public policy. We adopt the rule followed by the overwhelming
majority of jurisdictions, together with its public-policy-based rationale.
55
See, for example, Hojnowski, supra, 868 A.2d 1087, in which the New
Jersey appellate court, adhering to the majority rule, declined to enforce a
skateboard park’s release of liability for negligence, signed by a parent on behalf
of a minor. The court, citing statutes designed to protect various specific types of
sports programs (such as skiing, tobogganing, sledding, roller-skating, and
equestrian activities), observed that if skateboard parks “will be faced with
(Footnote continued on next page.)
41
those who provide such programs or other recreational sports services believe the
viability of their particular industry rests upon the ability to secure valid releases
of liability for future gross negligence — that is, exoneration for the providers’
failure to employ even “slight care,” or for an “extreme departure” from the
ordinary standard of conduct — the proper forum in which to present that policy
argument, and to seek that broad protection, is the Legislature.
VI
Defendants and some of their supporting amici curiae assert that by
declining to enforce the release at issue in this case against a possible claim for
gross negligence, we would be (1) recognizing a legal distinction between
ordinary negligence and more aggravated misconduct, and thus (2) in essence
recognizing, in these circumstances, the possibility of a “cause of action” for gross
negligence.56 They assert we may not properly do either. As explained, we reject
defendants’ objections.
(Footnote continued from previous page.)
economic extinction as a result of this decision, then the Legislature can be
apprised of that fact and act, as it has to protect other industries that it deemed to
be both important and threatened.” (Id., at pp. 1099-1100.) (See generally
McCaskey & Biedzynski, A Guide to the Legal Liability of Coaches for a Sport
Participant’s Injuries (1996) 6 Seton Hall J. Sport L. 7, 62-63 [citing various state
statutes granting immunity to coaches for negligence, but not for gross negligence
or recklessness]; Arango & Trueba, supra, 14 U. Miami Ent. & Sports L.Rev. 1,
31-32 [noting qualified immunity provisions enacted in some states concerning
various recreational sports and programs].)
56
Whether sufficient facts exist in this case to allow the matter to proceed to
trial on a theory of gross negligence is a separate question. As observed post, at
footnote 61, the Court of Appeal concluded that there is sufficient evidence, but
we do not address that determination.
42
A
Defendants claim our courts “may not distinguish ordinary from gross
negligence absent express legislative authorization.” In support of this
proposition, they cite the Legislature’s 1874 repeal of statutes recognizing and
defining “slight,” “ordinary,” and “gross” negligence. (See Walther v. Southern
Pacific Co. (1911) 159 Cal. 769, 775.) Amicus curiae NASCAR echoes this view,
asserting that, with respect to gross negligence and “other grades” of misconduct
such as recklessness and willful misconduct, California “courts have uniformly
agreed that none of [those classifications], in the absence of specific statutory
creation, are to be treated differently [from] ‘ordinary’ negligence” and that “there
is no legal distinction” between the concepts of ordinary negligence, gross
negligence, and recklessness “in the absence of a statute.”
This assertion inaccurately characterizes the law. For example — and
despite the absence of any statutory authorization for the distinction — we long
have adhered to the common law rule that a contract may be reformed due to
mutual mistake based upon “ordinary negligence,” but not when the mistake is
based upon “gross negligence.” (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516,
529; see also Van Meter v. Bent Construction Co. (1956) 46 Cal.2d 588, 594-595
[allowing reformation upon a showing of gross negligence].)
Similarly, prior to abandonment of the common law doctrine of
contributory negligence in favor of comparative fault in Li v. Yellow Cab Co.
(1975) 13 Cal.3d 804 (Li) — and despite the absence of any statutory
authorization for making the distinction — recklessness by a tortfeasor long was
recognized by California courts in order to ameliorate the harsh effects to a
plaintiff of the contributory negligence bar. (See, e.g., 4 Witkin, Summary of Cal.
Law (8th ed. 1974), Torts, § 668, pp. 2974-2976, and cases cited.) Now, in the
post-Li context, the common law doctrine of assumption of risk continues to
43
disprove the thesis that absent statutory authority, the courts are precluded from
drawing legal distinctions between ordinary negligence and more aggravated
categories of misconduct. The primary-assumption-of-risk doctrine involves
injury-causing conduct by a defendant who, because of the setting and the
relationship of the parties, owes no legal duty to protect a plaintiff against ordinary
negligence. (Knight v. Jewett (1992) 3 Cal.4th 296 (Knight).)57 In the context of
active sports coparticipants, for example, this means that a defendant generally has
no duty to eliminate, or protect a plaintiff against, risks inherent in a sport — that
is, against ordinary careless conduct considered to be part of the sport. (Id., at pp.
315-316.) And yet, Knight holds, such a defendant nevertheless may be liable for
conduct “so reckless as to be totally outside the range of the ordinary activity.”
(Id., at pp. 320-321, italics added.)
As shown, pursuant to our common law contract reformation case law and
the assumption-of-risk doctrine, and despite the absence of statutory authorization,
California case law clearly distinguishes between the concepts of ordinary
negligence and other, aggravated forms of misconduct such as gross negligence
and recklessness.
B
Defendants and various supporting amici curiae also assert that California
does not recognize any cause of action for “gross negligence” unless such an
action is directly, or at least implicitly, authorized by one of the numerous statutes
that employ gross negligence as the applicable standard. (See, e.g., statutes cited
57
Our decision in Knight explains that an express agreement releasing future
liability for negligence, such as we consider in the present case, similarly can “be
viewed as analogous to primary assumption of risk.” (Knight, supra, 3 Cal.4th at
pp. 308-309, fn. 4.)
44
ante, at fn. 25.) Defendants and their amici curiae rely upon Continental Ins. Co.
v. American Protection Industries (1987) 197 Cal.App.3d 322 (Continental).
We do not view our holding — that an agreement purporting to release
liability for future gross negligence committed against a developmentally disabled
child who participates in a recreational camp designed for the needs of such
children violates public policy and is unenforceable — as recognizing a cause of
action for gross negligence.58 In any event, as explained below, the decision in
Continental does not assist defendants.
Continental, supra, 197 Cal.App.3d 322, did not concern a release of future
tort liability, but instead a liquidated damages provision of a contract for burglar
alarm services. The provision limited damages for “ ‘negligence’ ” to $250 (id., at
p. 328, fn. 4), and the plaintiff, an insurer, sought unsuccessfully to avoid that
clause by amending its complaint to allege not ordinary negligence, but gross
negligence. In affirming the trial court’s order refusing to recognize the plaintiff’s
cause of action, the appellate court noted that numerous California decisions had
discussed and applied the doctrine of gross negligence in the context of various
statutory provisions establishing that specific level of negligence as the operative
standard in particular situations (id., at p. 329, fn. 5). The appellate court in
58
Our holding simply imposes a limitation on the defense that is provided by
a release. A plaintiff is not required to anticipate such a defense (see 4 Witkin,
Cal. Procedure (4th ed. 1997) Pleading, § 381, p. 481); instead, the defendant
bears the burden of raising the defense and establishing the validity of a release as
applied to the case at hand. (See Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2006) ¶ 6.436, p. 6-115.) In the present
case, defendants’ inability to establish the validity of the release as it relates to
gross negligence means that, in any subsequent jury trial, defendants would not be
entitled to instructions absolving them of liability for damages resulting from
gross negligence. But this, we believe, is different from recognizing a separate
cause of action for gross negligence.
45
Continental also quoted Prosser and Keeton’s comments concerning the “
‘difficulty of drawing satisfactory lines of demarcation’ ” relating to degrees of
negligence, and the ensuing elimination of the distinction between ordinary and
gross negligence “ ‘in most situations.’ ” (Id., at p. 330, fn. 7, quoting Prosser &
Keeton, supra, § 34, p. 211, italics added.) The court then observed that after the
decision in Li, supra, 13 Cal.3d 804, which as noted abandoned the all-or-nothing
common law doctrine of contributory negligence in favor of comparative fault,
“the need for categorization of misconduct into degrees has been radically
diminished.” (Continental, supra, 197 Cal.App.3d at p. 330, italics added.) From
this, the court in Continental jumped to the broad conclusion that “any attempt to
categorize gross negligence separately from ordinary negligence is unnecessary”
(ibid., italics added) — and it determined that the trial court properly had declined
to allow the plaintiff to amend its complaint to allege gross negligence. (Ibid.)
Subsequently, two decisions have, in offhand dictum, cited Continental as
standing for the general proposition that “California does not recognize a distinct
cause of action for ‘gross negligence’ independent of a statutory basis.” (Saenz,
supra, 226 Cal.App.3d 758, 766, fn. 9.)59
We need not address here the question whether the court in Continental
reached the correct decision in the context of the liquidated damages provision
before it.60 We conclude, however, that the decision in Continental is
59
See also Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 108,
footnote 5, disapproved on other grounds in Knight, supra, 3 Cal.4th 296, 306-
309.
60
But see the decision filed two years after Continental in Liberty Furniture,
Inc. v. Sonitrol of Spokane, Inc. (Wn.Ct.App. 1989) 770 P.2d 1086, 1087-1088
(essentially identical clause in burglar alarm contract limiting liquidated damages
to $250 did not preclude an action based upon gross negligence).
46
distinguishable in the context of the release at issue in the present case. It is true
that, after Li, in the context of comparative fault analysis, there typically is no
need to distinguish gross negligence from ordinary negligence, because we now
permit fact finders to compare the respective fault of the parties, regardless of the
degree of negligence of each. (Sorensen v. Allred (1980) 112 Cal.App.3d 717,
725-726 [allowing comparison of negligent and “willful and wanton” (reckless)
conduct].) It also is generally true that, with the advent of comparative fault, the
need to categorize misconduct into degrees has been “diminished.” (Continental,
supra, 197 Cal.App.3d 322, 330.) But as acknowledged by the court in
Continental, Li’s adoption of comparative fault obviated the need for the
distinction only in “most” situations — not in all. (Ibid.; accord, Bielski v. Schulze
(Wis. 1962) 114 N.W.2d 105, 114 [observing that the adoption of comparative
fault, and the abrogation of gross negligence as a general matter, nevertheless may
require that the law continue to recognize gross negligence in the context of
“anticipatory releases and exculpatory clauses”].)
Again, reference to Knight, supra, 3 Cal.4th 296, is illustrative. As noted
above, in the context of primary assumption of risk (that is, liability of active sports
coparticipants for injuries arising from the normal conduct of the sport), the absence
of a duty to protect against ordinary negligence does not absolve a defendant from
liability based upon reckless conduct. Similarly, in the present situation, it cannot be
said that a legal distinction between ordinary negligence and gross negligence is
“unnecessary” — indeed, a theory of gross negligence, if supported by evidence
47
showing the existence of a triable issue, is the only negligence-based theory that is
potentially open to plaintiffs and real parties in interest.61
VII
The judgment of the Court of Appeal is affirmed.
GEORGE, C. J.
WE CONCUR:
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
61
The Court of Appeal determined that the record supports the conclusion
that there exists a material triable issue regarding gross negligence. We did not
grant review of that issue and thus do not address it here.
48
CONCURRING AND DISSENTING OPINION BY KENNARD, J.
I agree with the majority that the contractual release of liability at issue in
this case is unenforceable as to gross negligence, but I reach that conclusion for
reasons that differ from the majority’s. The majority relies largely on decisions
from other jurisdictions to support a conclusion that releases for gross negligence
are inherently and generally against public policy and unenforceable, but that
conclusion cannot be reconciled with Civil Code sections 1668 and 2175, as I will
explain. In my view, a contractual release of liability for gross negligence, like a
contractual release of liability for ordinary negligence, must be examined in its
specific context to determine whether it is against public policy. In performing
that contextual public policy analysis, I rely on the factors that this court identified
in Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 (Tunkl).
I
The City of Santa Barbara (the City) runs a summer camp, called
Adventure Camp, for children with developmental disabilities. Katie Janeway,
who suffered from epilepsy, mild cerebral palsy, and other disabilities, started
going to the camp in 1999, and she returned every summer until her death in 2002
at the age of 14. The City’s application form for the camp required the child’s
parents to release the city and its employees from all liability for any loss or
damage on account of injury “whether caused by any negligent act or omission of
1
the releasees or otherwise.” Katie’s mother signed the year 2002 application form
containing the release provision.
Katie’s mother told the City’s employees that Katie had seizures and
needed supervision while swimming. The City assigned camp counselor Veronica
Malong, a college student, to supervise Katie during swimming activities. About
an hour before she drowned, Katie had a mild seizure. Malong waited until Katie
appeared to be fully recovered before allowing her to swim. There were about 300
children in and around the large, Olympic-size swimming pool, which was staffed
with five lifeguards. Katie wanted to use the diving board. That area of the pool
was roped off so only one child would be in the water at a time. Katie dove once
without problem. After a 10-minute rest, Katie dove a second time. Malong saw
her come to the surface and begin swimming toward the side of the pool. Malong
then looked away for no more than 15 seconds, and when she looked back she
could not see Katie. Malong immediately walked to the deep end of the pool to
look for Katie and asked another counselor who was swimming toward the diving
board if he had seen Katie. Malong then got into the pool and swam to the
shallow end and then back to the middle of the pool, searching for Katie. The
lifeguard assigned to watch the diving area finally saw Katie on the bottom of the
pool, where she had been for about five minutes. She was taken to a hospital and
died the next day.
Katie’s parents sued the City and Malong for wrongful death, alleging
negligence. Defendants moved for summary judgment, relying on the contractual
release in the application form. The trial court denied the motion, and defendants
petitioned the Court of Appeal for a writ of mandate to reverse that ruling.
Denying the petition, the Court of Appeal concluded that under Tunkl, supra, 60
Cal.2d 92, the release was valid and enforceable as to any claim for ordinary
2
negligence, but it also concluded, over the dissent of one justice, that the release
was unenforceable as to a claim for gross negligence.
This court granted review on a single issue, the enforceability of the release
as to a claim for gross negligence.
II
Civil Code section 1668, which has remained unchanged since its
enactment in 1872 as part of the original Civil Code, prohibits contractual releases
of liability for “fraud, or willful injury to the person or property of another, or
violation of law, whether willful or negligent.” Also unchanged since its
enactment in 1872 is Civil Code section 2175, which provides: “A common
carrier cannot be exonerated, by any agreement made in anticipation thereof, from
liability for the gross negligence, fraud, or willful wrong of himself or his
servants.” (Italics added.) The wording of Civil Code section 2175 shows that in
1872 the Legislature was well aware of gross negligence as a distinct category of
wrong and that it chose to bar any agreement releasing a common carrier from
liability for gross negligence. At the very same time, however, the Legislature
omitted gross negligence from Civil Code section 1668’s list of wrongful conduct
that could never be the subject of a contractual release of liability.
Only one inference may be drawn: The Legislature made a conscious
decision that releases for gross negligence—unlike releases for fraud, for willful
injury to person or property, and for intentional or negligent violation of statutory
law—are not inherently against the public interest and therefore are not generally
and categorically unenforceable. In holding that contractual releases of liability
for future gross negligence are generally unenforceable (maj. opn., ante, at p. 2),
the majority rejects the Legislature’s contrary decision, effectively rewrites Civil
Code section 1668 to insert what the Legislature deliberately omitted (a general
3
prohibition on contractual releases of liability for future gross negligence), and in
so doing usurps the Legislature’s authority. I do not join in that holding.
III
Of course, the Legislature’s decision, as embodied in the text of Civil Code
sections 1668 and 2175, that contractual releases for future gross negligence are
not inherently against the public interest and therefore are not generally
unenforceable, does not mean that such releases are always consistent with the
public interest and therefore enforceable. Instead, the validity of a contractual
release for future gross negligence must be determined by examining the context
in which it incurs. Civil Code section 2175 identifies one context in which
releases for future gross negligence are against the public interest and thus
invalid—when the party seeking exoneration is a common carrier. Civil Code
section 1668 does not preclude courts from determining that releases for gross
negligence are against the public interest and invalid in other situations as well.
To determine whether the release at issue here is against the public interest
and invalid as applied to gross negligence, I find guidance in this court’s decision
in Tunkl, supra, 60 Cal.2d 92. There, this court adopted an analysis to be used in
determining whether a contractual release of future negligence claims is against
the public interest and therefore unenforceable. We identified six factors or
characteristics that “constitute the public interest” and thus provide “a rough
outline of that type of transaction in which exculpatory provisions will be held
invalid.” (Id. at p. 98.) For an exculpatory provision to be held invalid, the
transaction to which it relates need only exhibit some of those characteristics. (Id.
at p. 101.) Although this court has never addressed the issue, it seems logical that,
because gross negligence is a more aggravated form of misconduct than ordinary
negligence, the public interest in deterring gross negligence is greater than the
public interest in deterring ordinary negligence. Accordingly, to invalidate a
4
release as to future gross negligence, the public interest showing under the Tunkl
analysis need not be as strong or as complete as it would need to be to invalidate a
release as to future ordinary negligence.
Under Tunkl, the first characteristic is that the release “concerns a business
of a type generally thought suitable for public regulation.” (Tunkl, supra, 60
Cal.2d at p. 98, fn. omitted.) Child day care facilities are subject to public
regulation under the California Child Day Care Facilities Act (Health & Saf.
Code, § 1596.70 et seq.). Although Adventure Camp is exempt from regulation as
a child day care facility because it is operated for less than 12 weeks in a 12-month
period during a time when local public schools are not in session (id., § 1596.792,
subd. (g)(1)), the City cannot deny that through the camp program it does indeed
provide child care services in the course of providing social and recreational
activities for young children who are unaccompanied by their parents.1
Accordingly, I conclude that at least insofar as it provides child care services, the
City’s Adventure Camp is engaged in a type of business that is suitable for public
regulation.
The second characteristic under Tunkl is that “the party seeking
exculpation” (here, the City) “is engaged in performing a service of great
importance to the public, which is often a matter of practical necessity for some
members of the public.” (Tunkl, supra, 60 Cal.2d at pp. 98-99, fns. omitted.)
Affording opportunities for developmentally disabled children to participate in
ordinary recreational activities with other children is a service of great public
importance. The Legislature has declared that “developmental disabilities present
1
The City allows parents to accompany their children to camp, but it does
not require that they do so. The analysis here is limited to children not
accompanied by parents.
5
social, medical, economic, and legal problems of extreme importance” that have
“an important impact on . . . whole communities” (Welf. & Inst. Code, § 4501,
italics added), that “[t]he State of California accepts a responsibility for persons
with developmental disabilities” (ibid.), and that those persons have rights both “to
social interaction and participation in community activities” and “to physical
exercise and recreational opportunities” (id., § 4502, subds. (f), (g)). Moreover, as
I have explained, the City’s program includes child care services, and child care
itself has vital public importance. (Gavin W. v. YMCA of Metropolitan Los
Angeles (2003) 106 Cal.App.4th 662, 672.) Thus, I conclude that, through its
recreational program for developmentally disabled children, the City provides
services that are of great public importance.
In modern urban society, where both parents often hold full-time
employment, many parents lack the time and resources to personally supply a full
range of recreational and social opportunities for their children and instead rely on
recreational camps and similar organized programs. This is particularly true for
parents of children with developmental disabilities, because of the particular skills
and adaptations required in dealing with those disabilities. Thus, recreational
programs like Adventure Camp that are designed for developmentally disabled
children are a “practical necessity” for parents seeking to provide a full range of
ordinary recreational and social opportunities for those children. I conclude that
through Adventure Camp the City provides services that are a practical necessity
for many parents of developmentally disabled children.
The third Tunkl factor is whether “[t]he party holds himself out as willing
to perform this service for any member of the public who seeks it, or at least for
any member coming within certain established standards.” (Tunkl, supra, 60
Cal.2d at p. 99, fn. omitted, italics added.) Here, although the City’s Adventure
Camp was limited to 20 participants at a time, the City made it available to any
6
child between the ages of seven and 14 with a qualifying developmental disability.
This circumstance is present.
The fourth Tunkl factor is whether “the party invoking exculpation
possesses a decisive advantage of bargaining strength against any member of the
public who seeks [those] services.” (Tunkl, supra, 60 Cal.2d at p. 100, fn.
omitted.) This factor is satisfied. Adventure Camp was limited to 20 children at a
time, and those spots were always taken. Although the City allowed parents to
choose which activities their children would participate in during camp sessions,
the City alone determined the conditions for admission to Adventure Camp.
Nothing in the record suggests that any parent ever bargained, or could have
bargained, with the City concerning the terms of admission to the program.
The fifth Tunkl factor is whether the party seeking exculpation used “a
standardized adhesion contract of exculpation” and did not offer the other party an
option to “pay additional reasonable fees and obtain protection against
negligence.” (Tunkl, supra, 60 Cal.2d at pp. 100-101, fns. omitted.) Here, it is
undisputed that the City’s terms of participation, including the release, were
offered to parents on a take-it-or-leave-it basis, with no opportunity to obtain
protection against gross negligence for an additional fee.
The sixth Tunkl factor is whether “as a result of the transaction, the person
or property of the purchaser is placed under the control of the seller, subject to the
risk of carelessness by the seller or his agents.” (Tunkl, supra, 60 Cal.2d at p. 101,
fn. omitted.) Here, as a result of the transaction in which Katie’s parents enrolled
her in the City’s Adventure Camp, Katie was placed under the care and
supervision of the City’s employees, subject to a significant risk of serious injury
if they acted with gross negligence.
I conclude that each of the Tunkl factors is satisfied, at least to some extent,
and that the characteristics of the particular transaction make the City’s contractual
7
release against public policy and unenforceable as to liability for injury caused by
gross negligence.2
IV
The City’s Adventure Camp provides recreational and social activities to
children with developmental disabilities. Because of the strong public interest in
providing children with disabilities with opportunities for ordinary recreational
activities and social interactions, it is essential that providers of those opportunities
be held to at least a minimal standard of care. Applying a slight variation of the
analysis that this court adopted in Tunkl, supra, 60 Cal.2d 92, I conclude that
releases for gross negligence are not enforceable in this particular context. On this
basis, I join the majority in affirming the Court of Appeal’s judgment.
KENNARD,
J.
I CONCUR:
MORENO, J.
2
I neither express nor imply any view concerning any other issue. In
particular, I do not address whether the release is enforceable as to ordinary
negligence or whether the evidence presented on the motion for summary
judgment would be sufficient to establish gross negligence by either defendant.
8
DISSENTING OPINION BY BAXTER, J.
In this matter we must determine whether a commonly-worded release of
future liability for negligence utilized by a public entity in connection with a
publicly funded and publicly operated summer recreational program for
developmentally disabled youth is enforceable under Civil Code section 1668
(section 1668), the statute defining the lawful parameters of releases in California.
I conclude the Legislature has spoken; a full release of negligence liability, as was
expressly agreed to by the parties below, is generally valid and enforceable under
section 1668.
The majority, in contrast, concludes that all releases of future liability for
gross negligence, whether express or implied, are generally unenforceable in
California as contrary to the public policy of this state, and that the specific release
of future negligence liability utilized by the City in this case, to the extent it
implicitly encompasses gross negligence, “violates public policy and is
unenforceable.” (Maj. opn., ante, at p. 41.) The majority does not find section
1668 of much consequence in this matter, a position it must take because its
conclusions and holding are based on policy determinations not discernable from
the controlling statutory language.
I cannot join in the majority’s sweeping holding. As this court long ago
observed, “[t]he determination of public policy of states resides, first, with the
people as expressed in their Constitution and, second, with the representatives of
1
the people — the state Legislature” (Jensen v. Traders & General Ins. Co. (1959)
52 Cal.2d 786, 794.) “ ‘[U]nless it is entirely plain that a contract is violative of
sound public policy, a court will never so declare. “The power of the courts to
declare a contract void for being in contravention of sound public policy is a very
delicate and undefined power, and . . . should be exercised only in cases free from
doubt.” ’ ” (Ibid.)
The Legislature, not this court, is in the best position to consider the public
interests and determine whether good cause exists to amend section 1668 to
uncategorically restrict releases of future tort liability to the extent they impliedly
encompass a release of gross negligence liability. As regards the release utilized
in connection with the public recreational services program for developmentally
disabled youth directly in issue, although I acknowledge the general concern that
grossly negligent misconduct not go unpunished, the public interests at stake here
are far more complex than that one consideration alone. Whether it is in the public
interest to restrict the means by which municipalities providing socially beneficial
services to the public seek to manage their exposure to the specter of expanding
tort liability in connection with the delivery of those services is a matter properly
determined by the Legislature. I therefore respectfully dissent.
I
Civil Code section 1668 (section 1668) provides that contracts having for
their object, either directly or indirectly, the exemption of a party from
“responsibility for his own fraud, . . . willful injury to the person or property of
another, or violation of law,” are “against the policy of the law.” Put otherwise,
one cannot lawfully contract away responsibility and future liability for his or her
own acts of fraud, willful torts, or transgressions of statutory law. Section 1668,
unchanged for 135 years and long understood to govern contractual releases of
2
liability, neither declares nor prohibits releases of future liability for any type of
negligence as being against the policy of the law in California.
The Legislature knows how to specifically proscribe the release of future
liability for gross negligence when it wants to. It did so when it enacted Civil
Code section 2175, which specifically prohibits common carriers from releasing
future liability for gross negligence. In contrast, as Justice Kennard explains, “The
Legislature made a conscious decision that releases for gross negligence—unlike
releases for fraud, for willful injury to person or property, and for intentional or
negligent violation of statutory law—are not inherently against the public interest
and therefore are not generally and categorically unenforceable. In holding that
contractual releases of liability for future gross negligence are generally
unenforceable (maj. opn., ante, at p. 41), the majority rejects the Legislature’s
contrary decision, effectively rewrites Civil Code section 1668 to insert what the
Legislature deliberately omitted (a general prohibition on contractual releases of
liability for future gross negligence), and in so doing usurps the Legislature’s
authority.” (Conc. & dis. opn. of Kennard, J., ante, at pp. 3-4.)
There is one longstanding caveat to the express limitations placed on
releases in section 1668. In Tunkl v. Regents of University of California (1963) 60
Cal.2d 92 (Tunkl), this court construed section 1668 as further precluding
enforcement of exculpatory contractual provisions purporting to release a party
from future liability for negligence if the transaction or subject matter of the
contract in question “affects the public interest.” (Id. at p. 94.) We emphasized at
the outset in Tunkl that “no public policy opposes private, voluntary transactions
in which one party, for a consideration, agrees to shoulder a risk which the law
would otherwise have placed upon the other party.” (Id. at p. 101, italics added.)
But we went on to explain that where the subject matter of a contract affects the
public interest, the relative bargaining positions of the parties are not the same as
3
in a private, voluntary transaction. With regard to that category of transactions,
“the releasing party does not really acquiesce voluntarily in the contractual
shifting of the risk, nor can we be reasonably certain that he receives an adequate
consideration for the transfer. Since the service is one which each member of the
public, presently or potentially, may find essential to him, he faces, despite his
economic inability to do so, the prospect of a compulsory assumption of the risk of
another’s negligence.” (Ibid.)
Observing that the “social forces” that characterize the “public interest” are
“volatile and dynamic,” and that “[n]o definition of the concept of public interest
can be contained within the four corners of a formula” (Tunkl, supra, 60 Cal.2d at
p. 98), we set forth a nonexclusive six-factor test in Tunkl for determining when a
contractual transaction “affects the public interest.” (Id. at pp. 98-101.) If “some
or all” of the factors are present, enforcement of an exculpatory clause purporting
to release liability for future negligence is prohibited as against the public interest.
(Ibid.) The six Tunkl factors are: (1) the transaction “concerns a business of a type
generally thought suitable for public regulation” (ibid., fn. omitted); (2) the party
seeking exculpation performs a service “of great importance to the public, which
is often a matter of practical necessity for some members of the public” (id. at
p. 99, fns. omitted); (3) the service is offered to the public at large (ibid.); (4) in
the economic setting of the transaction, the party seeking exculpation has a
“decisive” bargaining advantage because the service is “essential” (id. at pp. 99-
100); (5) the person obtaining the service is required to sign a “standardized
adhesion contract of exculpation” (id. at p. 100, fn. omitted); and (6) the person
obtaining the service bears the risk of the other party’s carelessness (id. at p. 101).
The facts of Tunkl serve to illustrate the purpose and proper application of
the rule announced therein. Hugo Tunkl sought admission to the University of
California Los Angeles Medical Center, a hospital operated and maintained by the
4
Regents of the University of California that held itself out to the public as an
institution that performs medical services for qualified members of the public.
(Tunkl, supra, 60 Cal.2d at pp. 94, 102.) The hospital-patient contract he was
required to sign in order to gain admission to the facility included a form releasing
“The Regents of the University of California, and the hospital from any and all
liability for the negligent or wrongful acts or omissions of its employees, if the
hospital has used due care in selecting its employees.” (Id. at p. 94.) We observed
“[t]hat the services of the hospital to those members of the public who are in
special need of the particular skill of its staff and facilities constitute a practical
and crucial necessity [was] hardly open to question.” (Id. at p. 101.) We also
cited Health and Safety Code sections directly subjecting the facility to public
regulation. (Ibid.) We then explained, “In insisting that the patient accept the
provision of waiver in the contract, the hospital certainly exercises a decisive
advantage in bargaining. The would-be patient is in no position to reject the
proffered agreement, to bargain with the hospital, or in lieu of agreement to find
another hospital. The admission room of a hospital contains no bargaining table
where, as in a private business transaction, the parties can debate the terms of their
contract. As a result, we cannot but conclude that the instant agreement
manifested the characteristics of the so-called adhesion contract. Finally, when
the patient signed the contract, he completely placed himself in the control of the
hospital; he subjected himself to the risk of its carelessness.” (Id. at p. 102.)
In consideration of the facts in Tunkl, we had little difficulty concluding
that the contractual terms under which Tunkl was admitted to the hospital affected
the public interest and rendered the release of negligence liability unenforceable.
“[T]he patient . . . sought the services which the hospital offered to a selective
portion of the public; the patient, as the price of admission and as a result of his
inferior bargaining position, accepted a clause in a contract of adhesion waiving
5
the hospital’s negligence; the patient thereby subjected himself to control of the
hospital and the possible infliction of the negligence which he had thus been
compelled to waive. The hospital, under such circumstances, occupied a status
different than a mere private party; its contract with the patient affected the public
interest.” (Tunkl, supra, 60 Cal.2d at p. 102.)
In the case now before us, Katie Janeway, a 14-year old developmentally
disabled child, tragically drowned in a City owned and operated swimming pool
while participating in a part-time summer recreational activities program for
developmentally disabled children while under the supervision of a trained
counselor functioning as a City employee. The tragedy is punctuated by the fact
that the loss of this child occurred under circumstances where everyone concerned
was plainly striving to ensure that Katie might simply enjoy a normal summer day
camp experience notwithstanding her developmental disabilities.
A completed application for enrollment in the Adventure Camp program
required the execution of a form releasing the City and its employees from all
liability “for any loss, damage, or claim therefore on account of injury . . . whether
caused by any negligent act or omission of the releasees or otherwise.” Maureen
Janeway, Katie’s mother, signed the release on the minor’s behalf. In doing so,
she agreed to “assume full responsibility for and risk of bodily injury [and] death”
arising from Katie’s participation in the program, and further “expressly agree[d]
that the . . . release and waiver, indemnity agreement and assumption of risk are
intended to be as broad and inclusive as permitted by California law.” She had
signed similar releases covering Katie’s participation in the Adventure Camp
program in three prior years.
The express proscriptions of section 1668 are not implicated here—
plaintiffs are not alleging any fraud, willful injury, or violation of a statute by the
City or its employees. The complaint simply alleges wrongful death on a theory
6
of negligence—gross negligence is not specifically alleged. Defendants moved
for summary judgment on the basis of the release, the City arguing that Adventure
Camp, unlike the hospital in Tunkl, was an elective summer recreational program
for disabled children, enrollment in which did not affect the public interest, and
that accordingly the release of future negligence liability resulting from injury or
death of a camp participant was fully enforceable under Civil Code section 1668
as interpreted by Tunkl. The trial court denied summary judgment and the City
petitioned for a writ of mandate. The Court of Appeal correctly understood the
principal issue to be whether the contractual agreement through which Katie was
accepted into the Adventure Camp program is of a nature that affects the public
interest within the meaning of Tunkl. If not, then the release signed by the minor’s
mother on her behalf is fully enforceable under section 1668, as construed in
Tunkl, and serves to release the City from future liability for negligence.
Based on analysis of the Tunkl factors, the Court of Appeal concluded that
“the release is valid and enforceable as a matter of law to the extent it releases the
City and [its employees] from liability for acts of ordinary negligence in the
operation of the City’s recreational program for disabled children. Undisputed
evidence establishes that the circumstances under which the release was executed
by the Janeways did not have the characteristics of a contract of adhesion or
pertain to an essential activity that was a matter of practical necessity to them.
Therefore, although offering opportunities to disabled children is clearly beneficial
to the public, the ‘public interest,’ as that term is used in Tunkl, would not be
served by invalidating the release as to ordinary negligence.”
Although the Court of Appeal referred to the enforceable release of
“ordinary negligence” in the passage quoted above, it can be observed that no
distinction is drawn between ordinary and gross negligence in either (1) the
allegations of plaintiffs’ complaint; (2) the express wording of the City’s release of
7
negligence liability here in issue; or (3) this court’s analysis in Tunkl by which we
concluded section 1668 must be interpreted as invalidating only contractual
releases of future negligence liability that affect the public interest. The Court of
Appeal nonetheless found the distinction pivotal to the second part of its analysis.
Over the dissent of one justice, the Court of Appeal went on to carve out an
exception for gross negligence, concluding that “the release does not exculpate the
City or [its employees] from liability for conduct constituting gross negligence
. . . . Public policy and the legitimate objective of the release dictate that we limit
the scope of the release to ordinary negligence by the City, and exclude the more
extreme and aggravated conduct that constitutes gross negligence.”
We granted review solely to consider the correctness of this specific aspect
of the Court of Appeal’s holding, for it was without precedent in California. As
the majority acknowledge, until this case, “no published California case has
upheld, or voided, an agreement purporting to release liability for future gross
negligence.” (Maj. opn., ante, at p. 12.)
The majority embraces this holding of first impression by the divided Court
of Appeal. It goes much further. The majority does not limit its holding to the
question posed on the facts of the case directly before us—whether a full release
of future liability for negligence utilized by a public entity in connection with a
publicly funded and publicly operated summer recreational program for
developmentally disabled youth is enforceable under section 1668 as construed in
Tunkl. It concludes instead that all releases of future liability for gross negligence,
whether express or implied, are generally unenforceable in California as contrary
to the public policy of this state, and specifically holds that the broad release of
future negligence liability utilized by the City in this case, to the extent it
implicitly encompasses gross negligence, “violates public policy and is
unenforceable.” (Maj. opn., at p. 41.) The majority’s conclusions and holding are
8
not limited to releases of future negligence liability made in the specific context of
sports or recreational activities. They rest on a broader policy concern—the
general concern that aggravated wrongs or grossly negligent misconduct not go
unpunished—and presumably apply to implied as well as express releases of
liability for gross negligence (here the release is silent as to gross negligence), and
to public and private transactions alike, regardless of whether they affect the
public interest within the meaning of Tunkl’s interpretation of section 1668.
Unlike the majority, I conclude the City’s release of liability for “any
negligent act or omission” leading to injury or death in connection with the
operation of its recreational Adventure Camp program for developmentally
disabled youth is valid and fully enforceable under section 1668 as interpreted in
Tunkl.
California courts have uniformly held that Tunkl does not invalidate
releases of future liability for negligent infliction of injuries in the context of
sports and recreational activities on the reasoning that, although beneficial, such
activities are generally not services essential to the public and thus do not affect
the public interest. (See, e.g., Lund v. Bally's Aerobic Plus, Inc. (2000) 78
Cal.App.4th 733, 739 [release of liability in connection with health club/gym
membership]; Randas v. YMCA of Metropolitan Los Angeles (1993) 17
Cal.App.4th 158, 162 (Randas) [release of liability in connection with YMCA
swimming program]; Okura v. United States Cycling Federation (1986) 186
Cal.App.3d 1462, 1467 [release of liability in connection with nonprofit-
sponsored bicycle race].) Accordingly, to require a party to sign an exculpatory
release as a condition of participation lacks the compulsion typically found in a
contract of adhesion and would not impair the public interest or violate public
policy. (See YMCA of Metropolitan Los Angeles v. Superior Court (1997) 55
9
Cal.App.4th 22, 26; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358,
1372.)
As the Court of Appeal below observed, releases have been enforced not
only for high risk sports activities, but for less risky recreation, and in particular,
where the recreational activity was directed at or included participation by
children. (See, e.g., Platzer v. Mammoth Mountain Ski Area (2002) 104
Cal.App.4th 1253 [parents’ release of liability on behalf of eight-year old child
participating in skiing school]; Hohe v. San Diego Unified Sch. Dist. (Hohe)
(1990) 224 Cal.App.3d 1559 (Hohe ) [parents’ and teenager’s release of liability
in connection with her participation in school hypnosis demonstration].)
Swimming and diving are two of the recreational activities offered to
developmentally disabled children through Adventure Camp, when authorized by
the child’s parents or legal guardian. Katie was swimming and diving in the City
pool with the express knowledge and written consent of her mother when her fatal
accident occurred.
Our decision in Tunkl directs courts in this state to determine the validity of
releases of future negligence liability on a case-by-case basis, with emphasis on
whether the type of service being offered is essential to the public, and whether a
disparity of bargaining power compels the party obtaining the service to sign the
release as a contract of adhesion. (Tunkl, supra, 60 Cal.2d at pp. 99-100; see also
YMCA of Metropolitan Los Angeles v. Superior Court, supra, 55 Cal.App.4th at
p. 26.)
The first Tunkl factor is whether the release in question concerns “a
business of a type generally thought suitable for public regulation.” (Tunkl, supra,
60 Cal.2d at p. 98, fn. omitted.) Child day care facilities are subject to public
regulation under the California Child Day Care Facilities Act. (See Health & Saf.
Code, § 1596.70 et seq.) Adventure Camp, however, is exempt from regulation as
10
a child day care facility because it is operated for less than 12 weeks in a 12-month
period during a time when local public schools are not in session. (Id.,
§ 1596.792, subd. (g)(1).) Nor is the program subject to regulation under the
Lanterman Developmental Disabilities Services Act. (Welf. & Inst. Code, § 4500
et seq.) 1 Unlike the facts of Tunkl, which involved a public hospital subject to
direct public regulation under the Health & Safety Code, plaintiffs here identify no
other statute or regulation to support a finding that the first Tunkl factor applies.
The second Tunkl factor is that the party seeking exculpation (here, the
City) “is engaged in performing a service of great importance to the public, which
is often a matter of practical necessity for some members of the public.” (Tunkl,
supra, 60 Cal.2d at pp. 98-99, fns. omitted.) In its briefing before this court, the
City “does not question that its various recreational services programs confer an
important benefit on the public and that it is important that people with all kinds of
disabilities have an equal opportunity to participate in these recreational services
and programs.” But the City points out that the program here in question was
designed to offer the same kinds of recreational services to developmentally
disabled children as the City offered to nondevelopmentally disabled children. As
the City explains, “[it] was not designed to offer—and did not offer—therapy or
any other special service for children with special needs.” As already observed,
courts in this state have uniformly held that Tunkl does not invalidate releases of
negligence liability for injuries arising from sports and recreational activities on
1
The Lanterman Developmental Disabilities Services Act (Welf. & Inst.
Code, §§ 4500 et seq.) expresses legislative goals of integrating individuals with
developmental disabilities into mainstream life, and ensuring that such individuals
are accorded the same rights as others to participate in recreational and other
programs that receive state funds. (Welf. & Inst. Code, §§ 4501, 4502.)
Adventure Camp is exempt from direct regulation under the Act.
11
the reasoning that, although beneficial, such activities are generally not services
essential to the public and thus do not affect the public interest. (Ante, at p. 7.)
Indeed, no reported California case until this one has made an exception for an
implied release of gross negligence in any context, whether involving sports or
recreational activities or otherwise.
Nor do plaintiffs point to any California decision or statute declaring that
recreational activities for the developmentally disabled are essential or a matter of
practical necessity within the meaning of the second Tunkl factor. The Adventure
Camp program was offered for only three weeks in the summer of 2002, and then
only for a period of 15 hours per week. There has been no showing that
Adventure Camp was the only program of its kind available to accommodate the
recreational needs of developmentally disabled children in the Santa Barbara
vicinity, and indeed, as the City points out, Katie, either with the assistance of her
parents or other adults trained to attend to her special needs, could have gone
swimming in this City-owned and operated public swimming pool even without
enrolling in the camp program.
The third Tunkl factor is whether “[t]he party holds himself out as willing
to perform this service for any member of the public who seeks it, or at least for
any member coming within certain established standards.” (Tunkl, supra, 60
Cal.2d at p. 99, fn. omitted.) Here, although the City’s Adventure Camp program
was technically available to any child between the ages of seven and 14 with a
qualifying developmental disability, as a practical matter enrollment was limited
to 20 participants at a time.
The fourth Tunkl factor is whether “the party invoking exculpation
possesses a decisive advantage of bargaining strength against any member of the
public who seeks [those] services.” (Tunkl, supra, 60 Cal.2d at p. 100, fn.
omitted.) Although the City determined the basic conditions for enrollment in the
12
camp program, it allowed parents to exclude activities in which they did not want
their children participating during the camp sessions. The record further reflects
that Katie’s parents were offered the opportunity to require her to wear a flotation
device at all times while swimming in the pool during camp. They felt she was a
strong swimmer and declined. The City also indicates evidence was presented
below “showing Katie participated in numerous recreational activities outside of
Adventure Camp, including physical education at school, Special Olympics
volleyball and basketball, horseback riding, and water sports such as swimming,
diving, tubing and water skiing.”
The fifth Tunkl factor is whether the party seeking exculpation used “a
standardized adhesion contract of exculpation” and did not offer the other party an
option to “pay additional reasonable fees and obtain protection against
negligence.” (Tunkl, supra, 60 Cal.2d at pp. 100-101, fns omitted.) Here, the City
has conceded that the Adventure Camp release was a standard form release
utilized for various City-run recreational programs, and was indeed offered on a
take-it-or-leave-it basis. But according to the City, the activities to which the
release applied were negotiable, and Katie’s parents could have also modified her
activities while in the pool to minimize any risks. The Janeways had the option of
customizing Katie’s camp experience by substituting other activities for pool time.
They could have restricted or prohibited her swimming altogether, or given special
instructions for that activity, or checked the box on the form requiring that she use
a flotation device at all times, and they also had the option of sending Katie to
camp along with a personal aide of their own choosing, or to attend camp along
with Katie and supervise her themselves.
The sixth and final Tunkl factor is whether “as a result of the transaction,
the person or property of the purchaser is placed under the control of the seller,
subject to the risk of carelessness by the seller or his agents.” (Tunkl, supra, 60
13
Cal.2d at p. 101, fn. omitted.) As the City explains, “[A]lthough Katie was
admittedly placed under the control of the City when she participated in
Adventure Camp, as has been shown, plaintiffs had many options for avoiding any
risk of carelessness by the City—and could have retained full control over Katie
by attending Adventure Camp with her.”
In sum, Adventure Camp provides elective and nonessential recreational
opportunities for developmentally disabled youth on a part-time basis in a summer
day camp setting. Moreover, unlike the release in Tunkl, which the patient had to
sign on a take-it-or-leave-it basis in order to be admitted into the hospital for
critical medical treatment, here the application and release required to be
completed for enrollment of a child in the elective recreational program have none
of the usual attributes of a contract of adhesion. The Janeways ultimately retained
control over whether Katie would swim in the pool as one of her camp activities,
and whether she would be required to wear a flotation device at all times if she did
so. They authorized her to swim and to dive, and opted not to require her to wear
a flotation device when in the pool participating in those activities. The City, on
its part, chose to assign a trained counselor specifically to keep close watch over
Katie while she was swimming or diving in the pool.
Although the importance of integrating developmentally disabled children
into mainstream society through programs like Adventure Camp cannot be
overstated, elective participation in this particular recreational camp program did
not affect the public interest within the meaning of our analysis and holding in
Tunkl. Nothing else in section 1668, the controlling statutory provision,
proscribes the full release of negligence liability utilized by the City in this case.
As a general matter, in the absence of fraud, overreaching or excusable neglect, a
duly executed release of liability is a lawful “express assumption of the risk.”
(Madison v. Superior Court (1988) 203 Cal.App.3d 589, 597, fn. 6; Hulsey v.
14
Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 339.) “ ‘ “In its most
basic sense, assumption of risk means that the plaintiff, in advance, has given his
express consent to relieve the defendant of an obligation of conduct toward him,
and to take his chances of injury from a known risk arising from what the
defendant is to do or leave undone. [Fn. omitted.] . . . The result is that the
defendant is relieved of legal duty to the plaintiff; and being under no duty, he
cannot be charged with negligence.” (Prosser & Keaton, Torts (5th ed. 1984)
§ 68, pp. 480-481, italics in original.)’ [Citation.]” (Madison v. Superior Court,
supra, 203 Cal.App.3d at p. 597, fn. omitted.) The Janeways, like countless
parents of children participating in recreational activities posing some level of
inherent risk, were asked to give up their right to sue for negligence. There is no
evidence establishing that the release in this case, which expressly covered “any
negligent act or omission,” fell outside their reasonable expectations, or was
unduly oppressive or unconscionable.
I would therefore hold the release valid and fully enforceable under section
1668 and Tunkl, and stop there. Like Justice Kennard, I conclude the majority
inappropriately relies on decisions from other jurisdictions in support of its broad
holding that public policy generally precludes enforcement of releases of future
liability for gross negligence. (Maj. opn., ante, at p. 41.) That broader question
should not be reached on the facts of this case, which does not involve a
contractual release of negligence liability affecting the public interest within the
meaning of Tunkl, and which does not involve a release of liability otherwise
falling under the express proscriptions of section 1668. Given that controlling
statute, which, even as construed in Tunkl, does not expressly prohibit the release
of future liability for negligence in the context in which it was utilized here, the
broader question considered by the majority is one more appropriately addressed
to the Legislature rather than decided by this court.
15
There are competing public policies at play here. One such policy, relied
on by the majority to the exclsuion of all others, is the general concern that grossly
negligent misconduct not go unpunished. But enforcement of broad releases of
negligence liability utilized by cities or other public agencies in the youth
recreational services setting may further the public interest by enabling
municipalities to deliver affordable recreational services to children with
developmental disabilities under the same terms as they provide such services to
other children. As several courts have observed, “ ‘[T]he public as a whole
receives the benefit of such waivers so that groups such as Boy and Girl Scouts,
Little League, and parent-teacher associations are able to continue without the
risks and sometimes overwhelming costs of litigation. Thousands of children
benefit from the availability of recreational and sports activities. Those options
are steadily decreasing—victims of decreasing financial and tax support for other
than the bare essentials of an education. Every learning experience involves
risk. . . . No public policy forbids the shifting of that burden.’ ” (Randas, supra,
17 Cal.App.4th at p. 162, quoting Hohe, supra, 224 Cal.App.3d at p. 1564.)
The Legislature, unlike this court, has the resources and is in the best
position to balance the interests of the public at large and all persons specifically
interested in the availability of publicly funded recreational services programs for
disabled youth. The paramount concern here is to ensure that the law of releases
of liability, as applied to this case, preserves and advances the public’s best
interests. It goes without saying that a fundamental concern in the public’s interest
is the continued viability of such socially beneficial programs in these fiscally
strapped times. The City Attorney of Santa Barbara, as a party to the case, and the
League of California Cities and the California State Association of Counties, as
amici curiae, suggest that the unavailability to public entities of broadly-worded
releases of negligence liability such as was utilized in this case could stand to
16
compromise the availability of publicly funded and publicly administered
recreational services programs such as this one. Whether it will ultimately serve
the public interest to restrict the means by which municipalities providing socially
beneficial services to the public seek to limit their exposure to expanding tort
liability in connection with such programs is a matter properly determined by the
Legislature. The answer, for example, may turn on whether insurance or the
ability to self-insure will remain available and cost effective in the face of a
change in the law restricting the scope of releases available to public entities
offering programs such as this one. Unlike the majority, I believe the public
interests at stake here are far more complex than the general concern that grossly
negligent misconduct not go unpunished. The Legislature, not this court, is in the
best position to sort them out and determine whether good cause exists to enact the
formidable revision of the law of releases which the majority adopts by judicial
fiat today.
II
I conclude section 1668 and Tunkl together control this case and dictate that
the release in question be found valid and enforceable. Any further change in the
law of releases of tort liability generally, or the law pertaining to releases of
negligence liability by public entities in connection with publicly-administered
recreational services programs specifically, should come from the Legislature.
BAXTER, J.
17
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion City of Santa Barbara v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 135 Cal.App.4th 1345
Rehearing Granted
__________________________________________________________________________________
Opinion No. S141643
Date Filed: July 16, 2007
__________________________________________________________________________________
Court: Superior
County: Santa Barbara
Judge: Thomas Pearce Anderle
__________________________________________________________________________________
Attorneys for Appellant:
Stephen P. Wiley, City Attorney, Janet K. McGinnis, Assistant City Attorney; Haight, Brown & Bonesteel,
Peter Q. Ezzell, Nancy E. Lucas; Jarvis, Fay & Doporto and Andrea J. Saltzman for Petitioners.
Dennis J. Herrera, City Attorney (San Francisco), Joanne Hoeper, Chief Trial Deputy, and Donald P.
Margolis, Deputy City Attorney, for League of California Cities and California State Association of
Counties as Amici Curiae on behalf of Petitioners.
Jane H. Adams for California Park & Recreation Society as Amicus Curiae on behalf of Petitioners.
Chapman, Glucksman & Dean, Arthur J. Chapman and Cynthia R. Lane for Sierra Club as Amicus Curiae
on behalf of Petitioners.
Manning & Marder, Kass, Ellrod, Ramirez and Anthony J. Ellrod for International Health, Racquet and
Sportsclub Association and California Clubs of Distinction as Amici Curiae on behalf of Petitioners.
Prindle, Decker & Amaro, Michael L. Amaro and Jack C. Nick for Bally Total Fitness Corporation and 24
Hour Fitness USA, Inc., as Amici Curiae on behalf of Petitioners.
Agajanian, McFall, Weiss, Tetreault & Crist, Paul L. Tetreault and William D. Anthony for National
Association of Stock Car Racing, Inc., and The California Speedway Corporation as Amici Curiae on
behalf of Petitioners.
__________________________________________________________________________________
Attorneys for Respondent:
No appearance for Respondent.
Grassini & Wrinkle and Roland Wrinkle for Real Parties in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Andrea J. Saltzman
Jarvis, Fay & Doporto
475 14th Street, Suite 260
Oakland, CA 94612
(510) 238-1400
Roland Wrinkle
Grassini & Wrinkle
20750 Ventura Boulevard, Suite 221
Woodland Hills, CA 91364-6235
(818) 348-1717
Opinion Information
| Date: | Docket Number: |
| Mon, 07/16/2007 | S141643 |
Parties
| 1 | City Of Santa Barbara (Petitioner) Represented by Andrea J. Saltzman Jarvis, Fay & Doporto, LLP 475 Fourteenth Street, Suite 260 Oakland, CA |
| 2 | City Of Santa Barbara (Petitioner) Represented by Stephen P. Wiley Office of the City Attorney P O Box 1990 Santa Barbara, CA |
| 3 | Superior Court Of Santa Barbara (Respondent) |
| 4 | Janeway, Terral (Real Party in Interest) Represented by Roland Wrinkle Grassini & Wrinkle 20750 Ventura Boulevard, Suite 221 Woodland Hills, CA |
| 5 | Malong, Veronica (Petitioner) Represented by Andrea J. Saltzman Jarvis, Fay & Doporto, LLP 475 Fourteenth Street, Suite 260 Oakland, CA |
| 6 | National Association Of Stock Car Racing (Amicus curiae) Represented by Paul L. Tetreault Agajanian McFall et al., LLP 346 N. Larchmont Boulevard Los Angeles, CA |
| 7 | National Association Of Stock Car Racing (Amicus curiae) Represented by William D. Anthony Agajanian McFall et al., LLP 346 N. Larchmont Boulevard Los Angeles, CA |
| 8 | League Of California Cities (Amicus curiae) Represented by Dennis Jose Herrera City Attorney, City & County of San Francisco 1390 Market Street, 6th Floor San Francisco, CA |
| 9 | League Of California Cities (Amicus curiae) Represented by Donald P. Margolis Office of the City Attorney 1390 Market Street, 6th Floor San Francisco, CA |
| 10 | Sierra Club (Amicus curiae) Represented by Arthur J. Chapman Chapman Glucksman & Dean 11900 W. Olympic Boulevard, Suite 800 Los Angeles, CA |
| 11 | Sierra Club (Amicus curiae) Represented by Cynthia Roe Lane Chapman Glucksman & Dean 11900 W. Olympic Boulevard, Suite 800 Los Angeles, CA |
| 12 | Bally Total Fitness Corporation (Amicus curiae) Represented by Michael L. Amaro Prindle Decker & Amaro, LLP 310 Golden Shore, 4th Floor Long Beach, CA |
| 13 | Bally Total Fitness Corporation (Amicus curiae) Represented by Jack C. Nick Prindle Decker & Amaro, LLP 310 Golden Shore, 4th Floor Long Beach, CA |
| 14 | International Health, Racquet And Sportsclub Association (Amicus curiae) Represented by Anthony Ellrod Manning & Marder, Kass, Ellrod, Ramirez 801 S. Figueroa Street, 15th Floor Los Angeles, CA |
| 15 | League Of California Cities (Amicus curiae) Represented by Donald P. Margolis Office of the City Attorney 1390 Market Street, 6th Floor San Francisco, CA |
| 16 | California State Association Of Counties (Amicus curiae) Represented by Dennis Jose Herrera City Attorney, City & County of San Francisco 1390 Market Street, 6th Floor San Francisco, CA |
| Disposition | |
| Jul 16 2007 | Opinion: Affirmed |
| Dockets | |
| Mar 7 2006 | Request for depublication (petition for review pending) Bally Total Fitness Corp. and 24 Hour Fitness USA, Inc. (non-party) |
| Mar 7 2006 | Record requested |
| Mar 7 2006 | Petition for review filed City of Santa Barbara, et al., petitioners Stephen P. Wiley, counsel Andrea J. Saltzman, counsel |
| Mar 10 2006 | Received Court of Appeal record two doghouse (vol 1&2) |
| Mar 27 2006 | Answer to petition for review filed RPI Terrall Janeway |
| Apr 7 2006 | Reply to answer to petition filed City of Santa Barbara and Veronica Malong, petitioners by Andrea J. Saltzman, retained counsel and Stephen P. Wiley, City Attorney of Santa Barbara. [ CRC 40.1(b) ] |
| Apr 12 2006 | Petition for review granted; issues limited (civil case) Petition for review GRANTED. The issue to be briefed and argued is limited to the following: Can a public agency's release of liability for recreational activities be effective as to ordinary negligence under Civil Code section 1668, as interpreted by Tunkl v. University of California (1963) 60 Cal.2d 92, but not as to gross negligence? Werdegar, J., was absent and did not participate. Votes: George, C.J., Kennard, Baxter, Chin, Moreno, and Corrigan, JJ. |
| Apr 12 2006 | Letter sent to: All parties enlcosing a copy of the grant order and the certification of interested entities or persons form. |
| Apr 19 2006 | Certification of interested entities or persons filed by Roland Wrinkle of Grassini & Wrinkle, counsel for RPI Terral Janeway. |
| Apr 27 2006 | Request for extension of time filed for a 60-day extension to July 11, 2006, to file petitioners' opening brief on the merits. |
| Apr 28 2006 | Extension of time granted On application of petitioner and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including July 11, 2006. |
| May 3 2006 | Certification of interested entities or persons filed by Stephen P. Wiley, City Attorney, for Respondent City of Santa Barbara |
| Jul 11 2006 | Opening brief on the merits filed City of Santa Barbara and Veronica Malong, petitioners by Andrea J. Saltzman of Jarvis, Fay & Doporto, LLP, retained. |
| Aug 11 2006 | Answer brief on the merits filed Terrall Janeway and Maureen Janeway, real parties in interest by Roland Wrinkle of Grassini & Wrinkle, retained. CRC 40.1(b) |
| Aug 14 2006 | Received application to file Amicus Curiae Brief National Association of Stock Car Racing, Inc.; and The Calfiornia Speedway Corp. application and brief are under same cover. |
| Aug 24 2006 | Permission to file amicus curiae brief granted The application of National Association of Stock Car Racing, Inc. and The California Speedway Corporation for permission to file an amicus curiae brief in support of petitioners is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Aug 24 2006 | Amicus curiae brief filed National Association of Stock Car Racing, Inc. and The California Speedway Corporation in support of petitioners. |
| Aug 31 2006 | Application filed to: File Petitioners' oversized (547 words over the 4200 word limit) reply brief on the merits, with an "Appendix" of 3,074 words. tct |
| Sep 6 2006 | Order filed The application for permission to file Petitioner's Reply Brief on the Merits containing 4,747 words that exceeds the 4,200 word limit prescribed by California Rules of Court rule 29.1(c)(1) by 547 words, and has an Appendix with a total of 3,074 words is hereby granted. |
| Sep 6 2006 | Reply brief filed (case fully briefed) City of Santa Barbara, petitioner by Andrea J. Saltzman of Jarvis, Fay & Doporto, LLP. |
| Sep 13 2006 | Response to amicus curiae brief filed Terrall Janeway and Maureen Janeway, real parties in interest by Roland Wrinkle of Grassini & Wrinkle, retained counsel |
| Sep 28 2006 | Received application to file Amicus Curiae Brief and brief of Bally Total Fitness Corp and 24 Hour Fitness USA, Inc., supporting petitioners City of Santa Barbara and Veronica Malong [app & brief separate) |
| Sep 29 2006 | Received application to file Amicus Curiae Brief of Sierra Club in support of petitioners The City of Santa Barbara and Veronica Malong Application and Brief under separate covers. |
| Sep 29 2006 | Received application to file Amicus Curiae Brief League of California Cities and California State Association of Counties in support of petitioners |
| Oct 3 2006 | Received application to file Amicus Curiae Brief Int'L. Hlth., Racquet and Sportsclub Assoc., California Clubs of Distinction Attorney Anthony J. Ellrod, Esq. [supports petitoners City of Santa Barbara and V. Malong] app. & brief separate cvrs. |
| Oct 10 2006 | Permission to file amicus curiae brief granted The application of League of California Cities and California State Association of Counties for permission to file an amicus curiae brief in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Oct 10 2006 | Amicus curiae brief filed League of California Cities and California State Association of Counties in support of petitioner. |
| Oct 10 2006 | Permission to file amicus curiae brief granted The application of Sierra Club for permission to file an amicus curiae brief in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Oct 10 2006 | Amicus curiae brief filed Sierra Club in support of petitioner. |
| Oct 10 2006 | Permission to file amicus curiae brief granted The application of Bally Total Fitness Corporation and 24-Hour Fitness USA, Inc. for permission to file an amicus curiae brief in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Oct 10 2006 | Amicus curiae brief filed Bally Total Fitness Corporation and 24-Hour Fitness USA, Inc. in support of petitioner. |
| Oct 10 2006 | Permission to file amicus curiae brief granted The application of International Health, Racquet and Sportsclub Association and California Clubs of Distinction for permission to file an amicus curiae brief in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Oct 10 2006 | Amicus curiae brief filed Inernational Health, Racquet and Sportsclub Association and California Clubs of Distinction in support of petitioner. |
| Oct 27 2006 | Response to amicus curiae brief filed (combined response to the amicus briefs filed 10-10-06) Terrall and Maureen Janeway, RPIs Roland Wrinkle, counsel |
| Dec 20 2006 | Additional issues ordered In connection with the policy arguments advanced in the briefs - in particular, whether enforcing releases of liability for future ordinary negligence, but not for future gross negligence, would lead to the demise or substantial diminished availability of recreational services and programs - the parties are directed to address the effect, if any, of the following decisions, and related authorities: 1. Hanks v. Powder Ridge Restaurant Corp. (Conn. 2005) 885 A.2d 734; Dalury v. S-K-I, Ltd. (Vt. 1995) 670 A.2d 795; Kyriazis v. University of West Virginia (W.Va. 1994) 450 S.E.2d 649; Wagenblast v. Odessa Sch. No. 105-157-166J (Wash. 1988) 758 P.2d 968. 2. Hiett v. Lake Barcroft Community Ass'n (Va. 1992) 418 S.E.2d 894; N.Y. Gen. Oblig. Law, ? 5-326, and cases applying that statute. 3. Hawkins ex rel. Hawkins v. Peart (Utah 2001) 37 P.3d 1062, 1065-1066 ("A clear majority of courts . . . have held that a parent may not release a minor's prospective claim for negligence"). The parties are directed to serve and file simultaneous supplemental briefs in the San Francisco office of the court, by January 3, 2007. Simultaneous reply briefs may be served and filed in the in the San Francisco office of the court, by January 10, 2007 |
| Jan 3 2007 | Supplemental brief filed Supplemental Answer Brief on the Merits (RPIS Terrall Janeway and Maureen Janeway) by Roland Wrinkle of Grassini & Wrinkle, retained. |
| Jan 3 2007 | Supplemental brief filed Amici Curiae Bally Total Fitness corporation and 24-Hour Fitness USC, Inc. by Michael J. Amaro and Jack C. Nick of Prindle, Decker & Amaro LLP. |
| Jan 3 2007 | Supplemental brief filed City of Santa Barbara and Veronica Malong, petitioners by Andrea J. Saltzman, Esq. and Stephen P. Wiley, City Attorney Filed with permission (oversized/9902 words) |
| Jan 3 2007 | Request for extension of time filed by petitioners to January 17, 2007 to file further simultaneous supplemental briefing and to extend the time for submission of the simultaneous reply briefs until one week after the due date of further supplemental briefing. |
| Jan 3 2007 | Extension of time granted The application of the City of Santa Barbara et al., for leave to file an additional supplemental brief, and for extension of time in which to file reply briefs, is granted. Any party may serve and file an additional supplemental brief by January 17, 2007. Simultaneous reply briefs shall be served and filed by January 24, 2007. All filings shall be in the San Francisco office of the court. |
| Jan 17 2007 | Supplemental brief filed Further Supplemental Brief on the Merits City of Santa Barbara and Veronica Malong, petitioners by Andrea J. Saltzman, retained counsel, and by Stephen P. Wiley, City Attorney of Santa Barbara County |
| Jan 24 2007 | Supplemental brief filed REPLY City of Santa Barbara and Veronica Malong, Petitioners by Andrea J. Saltzman, counsel |
| Jan 25 2007 | Supplemental brief filed REPLY Terral Janeway et al., Real Parties in Interest / CRC 8.25(b) by Roland Wrinkle, counsel |
| Jan 25 2007 | Request for judicial notice filed (granted case) Terrall Janeway et al., Real Parites in Interest by Roland Wrinkle, counsel |
| Jan 26 2007 | Received: Late supplemental brief from counsel for AC National Association of Stock Car Racing, Inc. and The California Speedway Corporation. |
| Jan 30 2007 | Application filed to: Leave to file supplemental brief by AC National Assocation of Stock Car Racing, Inc., and The California Speedway Corporation. by Paul L. Tetreault, counsel. |
| Feb 2 2007 | Order filed The application of National Association of Stock Racing, Inc., and The California Speedway Corporation for leave to file an untimely supplemental reply brief is hereby granted. |
| Feb 2 2007 | Supplemental brief filed National Association of Stock Racing Car, Inc., and The California Speedway Corporation. REPLY |
| Mar 6 2007 | Case ordered on calendar to be argued Tuesday, April 3, 2007, at 9:00 a.m., in Los Angeles |
| Apr 3 2007 | Cause argued and submitted |
| Apr 4 2007 | Supplemental briefing ordered In light of some of the points raised at oral argument, the court directs the parties to file supplemental briefs on the following question: How should the factors set forth in Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 - relating to the general enforceability of an exculpatory provision - be interpreted and applied in the context of the facts presented in this case, that is, a recreational program for children with developmental disabilities? The parties are directed to file simultaneous supplemental letter briefs limited to this issue in the San Francisco office of this court on or before April 18, 2007. The parties may file simultaneous reply letter briefs in the San Francisco office of this court on or before April 25, 2007. No extension of time to file supplemental or reply briefs will be granted. In view of the request for supplemental briefing, submission of the case is vacated. The case will be resubmitted as of April 25, 2007. |
| Apr 4 2007 | Note: Order faxed to all counsel of record. |
| Apr 13 2007 | Supplemental brief filed by Maureen Janeway, Real Party in Interest by Roland Wrinkle, counsel |
| Apr 18 2007 | Supplemental brief filed National Association of Stock Car Racing, Inc. and the California Speedway Corporation by Paul L. Tetreault of Agajanian, McFall, Weiss, Tetreault & Crist LLP (Amici Letter filed with permission) |
| Apr 18 2007 | Supplemental brief filed League of California Cities and the California State Association of Counties by Donald P. Margolis, Deputy City Attorney, City and County of San Francisco (Amici Letter filed with permission) |
| Apr 18 2007 | Supplemental brief filed International Health, Racquet and Sportsclub Association and California Clubs of Distinction by Anthony J. Ellrod of Manning & Marder Kass, Ellrod, Ramirez (Amici letter filed with permission) |
| Apr 18 2007 | Received: Application from amicus national Association of Stock Car Racing, Inc., and The Calif. Speedway Corp. request permission to file supplemental letter brief (faxed to SF) |
| Apr 18 2007 | Supplemental brief filed City of Santa Barbara and Veronica Malong, petitioners by Andrea J. Saltzman of Jarvis, Fay & Doporto, LLP, retained counsel. |
| Apr 25 2007 | Supplemental brief filed City of Santa Barbara's Supplemental Reply Letter Brief |
| Apr 25 2007 | Supplemental brief filed Supplemental Reply Letter Brief of Terrall and Maureen Janeway, real parties in interest |
| May 17 2007 | Request for judicial notice granted The motion for judicial notice, filed by Real Parties in Interest on January 25, 2007, is granted. |
| Jul 13 2007 | Notice of forthcoming opinion posted |
| Jul 16 2007 | Opinion filed: Judgment affirmed in full Judgment of the Court of Appeal. Opinion by: George, C.J. -- joined by Werdegar, Chin, Corrigan, JJ. Concurring and Dissenting Opinion by Kennard, J. -- joined by Moreno, J. Dissenting Opinion by: Baxter, J. |
| Aug 16 2007 | Remittitur issued (civil case) |
| Aug 22 2007 | Received: Acknowledgment of receipt for remittitur, signed for by Gay E. Bents, Deputy Clerk, CA2/Div.6 |
| Briefs | |
| Jul 11 2006 | Opening brief on the merits filed |
| Aug 11 2006 | Answer brief on the merits filed |
| Aug 24 2006 | Amicus curiae brief filed |
| Sep 6 2006 | Reply brief filed (case fully briefed) |
| Sep 13 2006 | Response to amicus curiae brief filed |
| Oct 10 2006 | Amicus curiae brief filed |
| Oct 10 2006 | Amicus curiae brief filed |
| Oct 10 2006 | Amicus curiae brief filed |
| Oct 10 2006 | Amicus curiae brief filed |
| Oct 27 2006 | Response to amicus curiae brief filed |
